The Queen v Karui [2012] NTSC 84

 

PARTIES:                                         The Queen

 

                                                         v

 

                                                         KARUI, Sylvester

 

TITLE OF COURT:                          SUPREME COURT OF THE NORTHERN TERRITORY

 

JURISDICTION:                              SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                         21136852

 

DELIVERED:                                   31 May 2012

 

PUBLISHED:                                   19 October 2012

 

HEARING DATES:                          31 May 2012

 

JUDGMENT OF:                              KELLY J

 

REPRESENTATION:

 

Counsel:

    Plaintiff:                                      D Morters

    Defendant:                                   R Woodroffe

 

Solicitors:

    Plaintiff:                                      Office of the Director of Public Prosecutions

    Defendant:                                   North Australian Aboriginal Justice Agency

 

Judgment category classification:   C

Judgment ID Number:                      KEL12022

Number of pages:                            7

 

 

 


IN THE SUPREME COURT

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

The Queen v Karui [2012] NTSC 84

No. 21136852

 

 

                                                     BETWEEN:

 

                                                     THE QUEEN

                                                         Plaintiff

 

                                                     AND:

 

                                                     SYLVESTER KARUI

                                                         Defendant

 

CORAM:    KELLY J

 

REASONS FOR JUDGMENT

 

(Delivered 31 May 2012)

 

Background

[1]       On the afternoon of 1 November 2011 a 15 year old girl was attacked by an Aboriginal man on Maluka Drive in Palmerston.  Shortly thereafter the accused man, Sylvester Karui was arrested behind the Palmerston Hub cinema and was taken into custody in relation to the attack.  Police interviewed the accused with the assistance of a Murrinh-patha interpreter.  He made certain admissions during the interview and has been charged with attempted rape and, in the alternative with indecent assault.

[2]       The accused has objected to the admission of the record of interview.  Initially the objection was on two grounds.  First it was contended that the Crown had not proved that the admissions in the record of interview had been made voluntarily.  However, that ground was abandoned.

[3]       The second ground of objection, the only one which was pressed, was that the admissions made by the accused in the record of interview should be excluded on the basis of fairness.

[4]       Counsel for the defence contended that there were inaccuracies in interpretation by the Murrinh-patha interpreter and tendered, by consent, an amended transcript prepared utilising the services of a different interpreter.  The Crown accepted the accuracy of that transcript for the purposes of the application.  However, the transcript proved to be of limited value in determining the objection as it left out portions of the questions and answers and did not make it clear which portions of the transcript were spoken by the accused directly and which by the interpreter.  Ultimately, resort was had to playing the DVD of the record of interview and referring to that in conjunction with the transcript. 

[5]       During the record of interview the defendant admitted that he had been following the complainant, a 15 year old girl.  Initially he admitted that he had pushed her and said he asked her (or was intending to ask her) for money.  He denied touching her inappropriately.

[6]       Eventually he admitted he had lifted the girl up and put her over his shoulder, that she fell down, and that he was going to rape her. 

[7]       The objection on the basis of unfairness centres around several passages of the record of interview in which counsel for the accused says that as a result of mistranslation by the interpreter, the police and the accused were talking at cross purposes; the accused was talking about “silliness” in his head and the police interviewer spoke about “bad things”.  It was submitted that because of the misunderstanding brought about by that mistranslation the accused’s confession was unreliable.  The relevant portion of the transcript as tendered by the defence is as follows:

“SPENCER: Yeah, it didn’t bump you, nearly maybe but – if that car didn’t come you’re picking up that young girl, taking her somewhere why? What were you going to do with that girl?

KARUI:       Because I don’t know that time nothing.

SPENCER:  No, that’s right because you didn’t do anything I understand that but what in your mind were you going to do?  What were you thinking?

INTERP:     In your mind what were you going to do to her?

KARUI:       (in Murin-patha) I don’t know I just had silliness in my head.

INTERP:     (in English) I get bad ideas when I drink.

SPENCER:  Which way?

KARUI:       Palmerston area that’s where we drink.

SPENCER:  Yeah, which ideas but.  When you’re saying you get bad ideas do you think bad things, doing silly things maybe? What were you going to do? What were you thinking?

INTERP:     (in Murin-patha) What was in your brain what was you thinking, what were you going to do?

KARUI:       I act stupid, someone must have cursed me.

BLAND:      What were you thinking at that time when you were drunk? What were you thinking about that girl in your head?

INTERP:     (in Murin-patha) In your mind what was you thinking about that girl?

KARUI:       I dunno, I dunno, I was walking behind her, someone wishing – force me – wishing.

SPENCER:  Aboriginal way?

KARUI:       Yeah.

BLAND:      To do what? What were they wishing you to do?

KARUI:       I don’t know what was going to happen.

INTERP:     What for they were singing you?

SPENCER:  What were you think – what were you thinking Sylvester, you said you were walking along, you see that young girl, you’re following her, what were you thinking?”

[8]       The misunderstanding is said to have resulted from the underlined words above: “I don’t know I just had silliness in my head,” being mistranslated as, “I get bad ideas when I drink”.

 

[9]       The second portion of the record of interview which counsel for the accused submitted led to a misunderstanding or miscommunication is as follows:

“SPENCER: You said you had bad thoughts in your mind, you’d been drinking, maybe someone cursed you?

KARUI:       Yeah.

SPENCER:  Make you think, make you do bad things, what were those bad things that you were going to do?

KARUI:       [language]

INTERP:     Same – same answer, someone wish me, wish me.

SPENCER:  Yeah.

KARUI:       Maybe for that wrong thing.

SPENCER:  What’s that?

KARUI:       [language]

INTERP:     Someone was wishing me because I was gonna do it.

SPENCER:  What were you going to do Sylvester?

INTERP:     I was going to rape her. Someone was cursing me.”

[10]    The submission was that the accused was being asked to speculate about what the person who cursed him wanted or intended him to do rather than being asked about his own intention.  Therefore his statements about what he intended might not have been referring to his own intention but to the intention of the person - the one he believed had cursed him.

[11]    I do not think there is any substance to either of those contentions.  First, I do not think anything turns on the fact that the interpreter rendered the Murrinh-patha expression “silliness in my head” as “bad ideas.”  The interviewing police officer was asking quite unambiguously “What were you going to do, what were you thinking?” and that was interpreted accurately as “What was in your brain and what was you thinking, what were you going to do?”  It was at that point that the accused introduced the notion, “I act stupid, someone must have cursed me.”

[12]    Nor do I think that there was any potential for the accused to have misunderstood or to have thought the police were asking him about the intentions of the person he thought had cursed him.  The questions were quite unambiguous.  The only reference by the police to a person having cursed the accused was where the police officer said, “You said you had bad thoughts in your mind, you’ve been drinking, maybe somebody cursed you.”  That was simply reminding the accused of what he himself had said.  The question asked was, “What were those bad things you were going to do?”  That question was asked numerous times in very similar terms.  Not once was he asked, “What did that person want you to do/force you to do?”  Eventually in answer to the question, “What were you going to do Sylvester?”  The accused said, “I was going to rape her.  Someone was cursing me.”

[13]    Initially counsel for the defence had submitted that there was no direct evidence of the defendant’s understanding of the word “rape” used in that context.  However that submission was not pressed.  It was clear from the DVD of the record of interview that the word “rape” was spoken in English by the accused and in fact was introduced into the interview by the accused.

[14]    Whilst I understand that the word “rape” can simply mean to have sex in some versions of Aboriginal English, it does not matter for the purpose of this exercise whether the accused was using the term in the sense of “to have sex” or in the sense of “to have sex without consent”; there was no question at all in the circumstances that any consensual intercourse was to take place.  He had been following a 15 year old girl who was a stranger to him, had picked her up and she was struggling and screaming.  The only question was whether he intended to have sexual intercourse with her: initially he claimed he was intending to ask her for money. 

[15]    In the circumstances I do not think that it would be unfair to admit the record of interview into evidence.