Lost in translation: Jailed refugee wins appeal

A judge has set aside convictions against a Sri Lankan refugee jailed and later taken into detention after a magistrate accepted pleas of guilty from a confused defendant due to a “lack of understanding of English”.

A Brisbane District Court was recently told that Magistrate Judith Daley sentenced Senthuran Selvaraja to two years’ jail, suspended after three months, in February 2021 after pleading guilty to 30 counts of fraud.

Judge Vick Loury QC was told Selvaraja – who did not understand English well and whose first language was Tamil – was represented by an experienced criminal defence solicitor who entered pleas of guilty to all charges on his behalf.

In November, Selvaraja applied under section 222 of the Justices Act 1886 (Qld) to the District Court to appeal convictions on the grounds he did not plead guilty to all 30 charges.

Judge Loury, in granting the appeal, said: “(Selvaraja) was represented by an experienced criminal defence solicitor in the Magistrates Court.

“At the commencement of the hearing (Selvaraja’s) solicitor announced his appearance indicating that he appeared for the applicant who he indicated ‘will plead guilty to all charges’.

“What then transpired was a reasonably lengthy discussion between the learned Magistrate, (Selvaraja’s) solicitor and the police prosecutor as to the number of charges before the court.

“The learned Magistrate referred initially to there being 17 charges, (Selvaraja’s) solicitor to there being 28 charges, and the police prosecutor to there being 29 charges.

“The sentencing schedule relied upon by the prosecution appeared to contain 29 charges when it in fact contained 30 charges due to the duplication of two charge numbers.”

Judge Loury said the presiding magistrate eventually indicated that there were 30 charges before the court to deal with.

“The learned Magistrate … then heard submissions from the police prosecutor and (Selvaraja’s) solicitor before passing sentence,” Judge Loury said.

“There was no demurrer [an objection granting the factual basis of an opponent’s point but dismissing it as irrelevant or invalid] from either (Selvaraja’s) solicitor or the police prosecutor.”

In a five-page decision delivered on 29 April 2022, Judge Loury allowed Selvaraja’s appeal, set aside his convictions and ordered that the matter be returned to the Magistrates Court.

“(Selvaraja) and the respondent (Queensland Police Service) have each filed affidavits focused on the ability of (Selvaraja) the applicant to understand English,” her Honour said.

“(Selvaraja’s) solicitor at the sentence hearing and the investigating police officer have each affirmed their ability to communicate with (Selvaraja) without the need for an interpreter … (and the) solicitor has denied the allegations of impropriety alleged against him and has exhibited instructions and correspondence which support his account.

“The material (Selvaraja) has filed suggests that he lacked an understanding of the substance of the charges he was facing and lacked the intention to plead guilty to all of them.

“Whilst there is a dispute as between the (Selvaraja and QPS) as to the extent of his understanding of the English language, given the confusion at the sentence hearing as to the number of charges before the court, there exists in my mind a possibility that (Selveraja) has been wrongly convicted.

“The irregularity in this case has resulted in serious consequences to the applicant (Selvaraga) in terms of his serving a sentence of actual imprisonment and the cancellation of his bridging visa.

“The irregularity means that, in the circumstances of this case, the learned Magistrate lacked jurisdiction to sentence the applicant.”

Read the decision.

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