A refugee whose right to silence was breached – and who was then convicted after recanted evidence was presented to a jury– has successfully appealed his conviction in a matter the Court of Appeal described as “concerning in a number of respects”.
In November last year, “PBT” was convicted in the District Court at Beenleigh, after a jury trial, of three counts of indecent treatment of a child under 16, under 12, under care. He was sentenced on the same day to 10 months’ imprisonment, suspended after five months, for an operation period of 18 months.
Police had conducted a recorded interview in 2020 with PBT – whose third language was English – when he did not understand the caution concerning the right to silence and did not have an interpreter present.
The complainant’s interview with police, where she made allegations of repeated sexual touching by PBT over several years, was played to the jury at the trial, notwithstanding that she had expressly recanted those allegations before the trial.
PBT appealed on three grounds:
First, that the judge presiding over a pre-trial application erred in refusing to exclude PBT’s record of interview by:
(a) determining that PBT understood the right to silence, and/or
(b) failing to have regard to the non-compliance by police with r 22(2) of the Police Responsibilities Code concerning mandatory cautions for persons to attend for questioning.
Second, that the trial judge erred in refusing to exclude PBT’s record of interview upon leave being granted to re-open the earlier ruling.
Third, that the trial miscarried from cumulative errors, that in combination, produced an unfair trial.
In the Court of Appeal on 1 August, Chief Justice Bowskill, Justice Bond and Justice Boddice ordered that the appeal be allowed, that the verdicts of guilty on each count be set aside, and that the verdicts of acquittal be entered on each count.
In the 21 pages of reasons, published late last month, Chief Justice Bowskill said the circumstances of the case were “concerning in a number of respects”.
She said the child made allegations of serious sexual abuse to her mother then repeated them in a police interview on 4 March 2020.
“The complainant subsequently completely recanted the allegations, saying that she had lied because, in effect, she wanted to get rid of the appellant,” she said.
“But the appellant had already been interviewed by the police, on 5 March 2020, by reference to the serious allegations which had been made, and the interview was recorded.
“English is the appellant’s third language, and he did not speak it well. He arrived in Australia in 2015 as a refugee, from the Congo. His cultural background, and prior life experience, were such that he was fearful of police authority. He had no interpreter for the police interview.
“His answers to questions were ambiguous, and could be taken as admissions to inappropriately touching the complainant on her breast or on her bottom.”
Chief Justice Bowskill said those answers comprised the only evidence at the trial relied upon by the Crown to support the three charges of indecent treatment.
“The complainant’s evidence – both of her false accusations, and her withdrawal of them – was placed before the jury…” she said.
“But it was not relied upon by the Crown to support the charges. The confusion for a jury evident in such an approach is obvious.
“It can only have been compounded by the trial judge, at the urging of both parties, giving a direction under s 103ZY of the Evidence Act 1977 (Qld), which is to explain to a jury that there may be complex reasons why there are differences in the accounts given by a complainant on different occasions.”
She said it was patently clear from the interview that PBT did not understand what the caution meant, and she noted fundamental problems with what the police officer said.
The pre-trial judge had dismissed an application for the evidence to be excluded on the grounds of involuntariness.
“The record of the appellant’s police interview ought to have been excluded either on the basis that the statements made by the appellant during the interview were not voluntary, that is, made in the exercise of a free choice to speak or be silent, with an understanding that his statements could be used as evidence against him; or, if voluntary in a broad sense, because it would be unfair to the appellant to admit the evidence in the trial,” Justice Bowskill said.
“The interview proceeded in breach of relevant provisions of the Police Powers and Responsibilities Act and the Responsibilities Code which are designed, among other things, to ensure the free exercise of the right of an accused person to stay silent.
“It was unfair to permit the Crown to lead evidence of the statements the appellant made to the police in circumstances where he did not have the benefit of all aspects of his right to silence being explained to him, let alone the assistance of an interpreter to ensure he understood that right fully. The pre-trial hearing judge erred in failing to exclude the record of interview.”
She also said also that the in the circumstances of the case, the direction under s 103ZY of the Evidence Act was not required and should not have been given. The section did not apply.
“There is a real risk, in my view, that a jury could have been left thinking that perhaps the complainant’s withdrawal of her allegations was not truthful, and that in fact the serious abuse she had earlier described was true. But that was not the Crown’s case.”
Her observations about this were made “only to draw attention to the need for both parties, and trial judges, to carefully consider whether a direction is in fact called for in the circumstances of the particular case; and, in the case of a direction required by statute, to carefully consider the legislative criteria for application of the section”.
Justice Boddice said PBT’s interactions with police before he fled the Congo meant he believed he had no choice but to answer the questions from the officer or risk harm, and had he known he did not have to answer the questions, he would not have taken part in the interview.
He said the appellant’s record of interview ought to have been excluded on another ground: that the police officer did not comply with their mandatory obligations in relation to asking a person to attend a station for questioning, because they did not tell PBT he did not have to attend.
“At the hearing of the appeal, the respondent properly conceded that if this court concluded that the record of interview ought to have been excluded from being admitted into evidence at trial, there was no evidence that could have satisfied a jury, beyond reasonable doubt, of the appellant’s guilt of any of the offences.”
Justice Boddice observed that after the complainant’s evidence was ruled inadmissible at trial, the prosecution was required to make necessary admissions as to the fact that the complainant had made allegations on a specified date and expressly recanted those allegations on a subsequent date, and it did not.
“Their obligation was to do so, to ensure that the trial was conducted fairly, according to law,” he said.
“The consequence of the prosecution’s failure to act fairly, was, as defence counsel observed, to place defence counsel in the invidious position that there was no choice but to ask for the complainant’s evidence to be played, so that there was an explanation before the jury as to the circumstances in which the appellant participated in a record of interview with police.
“The playing of the complainant’s evidence had the consequence that the jury heard the nature of allegations which had been expressly recanted by the complainant, in circumstances where there was then submitted, that the trial judge had to give the mandatory directions under s 103ZY of the Evidence Act.”
Read the decision here.
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