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Benjamin v Republic [1975] NRSC 9; [1969-1982] NLR (D) 44 (25 November 1975)

[1969-1982] NLR (D) 44

IN THE SUPREME COURT OF NAURU

Criminal Appeal 23 & 24 of 1975

PETER BENJAMIN & ROMMEL GOGOMA

v

THE REPUBLIC OF NAURU

25th November 1975

Evidence - the Judges' Rules to be observed in Nauru.

Evidence - confession made in Nauruan but recorded in English - improper for oral evidence of it to be given.

Evidence - recording in English of confession made in Nauruan through, interpreter - improper if interpreter is capable of recording confession in Nauruan.

Appeal against conviction for stealing a motor cycle. The accused made statements, alleged to be confessions, in Nauruan to a Nauruan police officer. He did not record the statements in Nauruan but recorded in writing a translation of them into English made by himself . At the trial he did not tender the written records but gave evidence of them. That was the only evidence implicating the accused in the taking of the motor cycle.

Held:

(1) As the English law of evidence is applied to Nauru by the Custom and Adopted Laws Act 1971, the English Judges' Rules should be observed in Nauru

(2) In circumstance where a written record in English of a statement alleged to have been made in Nauruan should not be admitted in evidence because it could have been recorded in Nauruan, oral evidence of the statement should not be admitted.

(3) Although it may be proper for the written record in English of a statement made in Nauruan to be admitted where the statement was interpreted from Nauruan, a written record should be made in Nauruan by the interpreter if he is capable of writing Nauruan.

The accused in person.
L.D Keke for the respondent.

Thompson CJ

The two appellants were charged jointly in the District Court with stealing a motor cycle. They were both convicted, bound over to be of good behaviour for six months and fined $120. An order was made for the amount of the fines to be paid to the owner of the motor cycle as compensation.

The only evidence adduced in the District Court which implicated either of the appellants in the offence was evidence of confessions allegedly made by both of them. They have both appealed on the ground that the evidence of their alleged confessions was wrongly admitted and on the further ground that, even if they were correctly admitted, they had not confessed to having an intention to deprive the owner of his motor cycle permanently.

The evidence of their alleged confessions was given by Sub-Inspector Gioura. He described how he first questioned the appellant Rommel and how, after Rommel had made an admission, he cautioned him and Rommel then proceeded to make the alleged confession. He then cautioned the other appellant, who also made an alleged confession. Sub-Inspector Gioura admitted in the District Court that the statements made to him by the appellants after caution were made in Nauruan. He gave evidence of them in English and Mr. Keke, representing the Director of Public Prosecutions, has informed this Court that they were written down in English by Sub-Inspector Gioura, who made his own immediate translation from Nauruan into English as he recorded them.

In the District Court Sub-Inspector Gioura did not tender the written statements but gave evidence of what the appellants said. This course of action was adopted apparently because of a ruling given recently by this Court that the written statement of an accused person was not admissible because it was made in Nauruan but recorded in English. However, it is quite clear that Sub-Inspector Gioura was not giving evidence of his recollection of the Nauruan words spoken by the appellants. The statements were recorded on 20th October 1973; the evidence was given on the 12th November, 1975, two years later. Yet the witness stated that he was giving evidence of the exact words spoken by the appellants. Clearly he could have done that only by refreshing his memory by reading the statements shortly before he gave his evidence. Thus his memory was refreshed not as to the actual Nauruan words spoken by the appellants but as to the witness's own translation of them.

By virtue of section 4 of the Custom and Adopted Laws Act 1971, the law in force in Nauru relating to evidence is the statute law and the common law in force in English on 31st January 1968, except as amended by Nauruan statutes, e.g. the Civil Evidence Act 1972. While the Judges' Rules are not strictly part of the law of England, they nevertheless are an integral part of the process by which that law is applied by the English courts. As such, in the absence of express provision to the contrary in the laws of Nauru, they should be observed here so far as the circumstances of Nauru permit.

Rule IV (d) of the judges' Rules provides that "whenever a police officer writes the statement, he shall take down the exact words spoken by the person making the statement". That particular words and phrases in the Nauruan language may be interpreted with different meanings or shades of meaning by different translators is well known to the Courts here. It is, therefore, not an adequate compliance with Rule IV (d) for a Nauruan police officer to record in English a statement made to him in Nauruan, having made the translation himself without recording the actual Nauruan words used.

Mr. Keke has referred this Court to the case of Gaio v The Queen (1960) 104 C.L.R. 419, in which the High Court of Australia held that evidence of a record made in English of a statement made Papua in a local dialect and translated into English by an interpreter was properly admitted. That case was not directly concerned with whether there had been a breach of the Judges' Rules but with the question whether the statement recorded was hearsay.

Obviously, when a police officer has to record a statement made in a language of which he does not have an adequate knowledge, he must utilise the services of an interpreter to translate the statement into a language of which he does have an adequate knowledge. I would respectfully agree with the High Court of Australia that in such a case, subject to it being proved that the interpretation was properly made, the statement would not be inadmissible as hearsay and would adequately comply with the Judges Rules. However, I draw attention to the following passage from Fullagar J's judgment: in Gaio's case (at p. 427)

"The persons there available to act as interpreters are illiterate or almost illiterate. They are thus not capable either of recording a conversation in writing or even of making notes from which they can later refresh their memories."

For that reason, the learned Justice accepted that, in the circumstances of the case before the High Court, it was sufficient if the interpreter gave evidence simply of having adequate knowledge of the two languages used and of having interpreted properly all that was said. But, by implication, he would not necessarily have accepted such evidence as sufficient if the interpreter had been literate and he could have kept a full record of the statements or at least made notes of what was said. With respect, I consider Fullagar J's reasoning to be sound. The Court should have before it a record of the precise words spoken, in the language in which they were spoken, unless that is not reasonably possible. The record or notes made by the interpreter should, therefore, be in the language spoken by the person who made the statement, unless the interpreter is not literate in that language. If there are likely to be a large number of cases in which interpreters are required to be used who are not literate in the languages in which statements translated by them are made, it may be necessary for a system of tape recording statements to be adopted, with adequate safeguards to prevent falsification and to obviate the risk of allegations of falsification. As already observed, the Judges' Rules do not have the force of law and the judge or magistrate presiding at a trial in which evidence of a confession is sought to be adduced has discretion to admit it even if the Judges' Rules have not been complied with, provided that he is satisfied that it was made voluntarily and not obtained unfairly. In the present case the only evidence implicating either of the appellants is his own statement to Sub-Inspector Gioura. Among other elements of the offence the prosecution had to prove an intent to deprive the owner of his motor cycle permanently. It was most important that the Court should have had before it evidence of the precise words used by the accused. It was, therefore, not a proper case for exercise of the discretion.

In making his ruling, to admit Sub-Inspector Gioura's evidence of the statements, the magistrate sought to draw a distinction between tendering written statements as evidence and giving oral evidence of what was said. However, in this case that oral evidence was objectionable for precisely the same reason as the recorded statements, namely that it was not an account of what the appellants actually said in Nauruan but of Sub-Inspector Gioura's translation. Further, to admit such oral evidence is to ignore a principal purpose of the requirement of the Judges' Rules that a suspect's statement should be recorded in writing, namely to safeguard him against defects in the police officer's memory.

The appeals of both appellants must, therefore, be allowed. Their convictions are quashed and the sentences and orders made in consequence of the convictions are set aside.