Gaio v R [1964] PNGLR 263; (1960) 104 CLR 419; (1960) ALJR 266; No155? [20/1960]

• Jurisdiction: Papua New Guinea
• Court: High Court
• Judge: Menzies J:
• Judgment Date: 10 October 1960
• Citation: (1960) ALJR 266; No155? [20/1960]
• Year: 1960

High Court: Dixon CJ, Fullagar J, Kitto J, Menzies J, McTiernan J

Judgment Delivered: 10 October 1960

1 Criminal Law—Evidence—Accused primitive native unable to speak English—Confession made by accused in native dialect to native interpreter—Instantaneous translation into English by interpreter to patrol officer—Patrol officer without knowledge of native dialect—Evidence from interpreter at trial that translation full and correct—Evidence by patrol officer of interrogation and confession translated into English—Objection that evidence inadmissible as hearsay—Admissibility.

2

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PRIOR–HISTORY: APPEAL from the Supreme Court of the Territory of Papua and New Guinea.

On 25th February 1960 one Bulari Gaio was arraigned before the Supreme Court of the Territory of Papua and New Guinea at Samurai upon a charge under s302 of the Queensland Criminal Code (which is adopted for the Territory of Papua by the Criminal Code Act No. 7 of 1902 as amended by Act No. 4 of 1907) of the murder of his wife. The trial conducted before Mann CJ sitting without a jury. The accused was a primitive aboriginal native able to converse only in a dialect known as Motu. Evidence was given that on 3rd February 1960, after having been cautioned, the accused was interrogated at the police station at Baniara by a cadet patrol officer of the Territory. The patrol officer being unable to speak Motu, a native interpreter interpreted between him and the accused. The native interpreter was called as a witness and gave evidence that he had truly and accurately translated the questions asked by the patrol officer into Motu and the accused's answers into English. The patrol officer then gave evidence of his interrogation of the accused as translated to him by the interpreter. In the course of the interrogation the accused confessed to having killed his wife. Counsel for the accused objected to the admission of the patrol officer's account of the conversation on the ground that the accused's answers to the questions as related by the interpreter were hearsay. Mann CJ overruled the objection and admitted the evidence. His Honour on 27th February found the accused guilty of murder and sentenced him to ten years imprisonment with hard labour.

The accused appealed by special leave to the High Court against the conviction.

D. S. Hicks QC (with him J H. Staunton), for the appellant. Mann CJ stated that if the confession were not admitted in evidence the accused would have been acquitted. The confession was not admissible because it was hearsay: R v Attard (1958) 43 Cr App R 90. If the patrol officer did not understand what the accused was saying then it was hearsay and that objection is not overcome by calling the interpreter to authenticate his interpretation as distinct from giving evidence of what was actually said by the accused. (He referred to R v Wong Ah Wong (1957) SR (NSW) 582; 74 WN 347; R v Sunda Khan (1901) 18 WN (NSW) 29; Kalos v United States (1925) 9 Fed Rep 2d 268; People v Chin Sing (1926) 242 NY 419 (152 NE 248); Commonwealth v Vose (1892) 157 Mass 393 (32 NE 355).) Authentication of the correctness of the translation by an interpreter, as is found in the American cases, is not an exception to the hearsay rule known to English law. The assumptions made in Commonwealth v Vose (1892) 157 Mass 393 (32 NE 355) that the accused has made the translator's language presumptively his own should not be made here.

LC Badham QC (with him K. Gee), for the respondent. The statements were not hearsay because the accused had the right to cross–examine both the patrol officer and the interpreter. The interpreter acted only as a kind of conduit pipe between the accused and the patrol officer; he was not a literate person and had no real appreciation of the matters conveyed by the words which he translated. (He referred to R v Wong Ah Wong (1957) SR NSW 582; 74 WN 347, R v Attard (1958) 43 Cr App R 90.) In those cases the evidence was inadmissible because the interpreter was not called: cf R v Sunda Khan (1901) 18 WN (NSW) 29; R v Lau Chi (1947) QSR 154. (FULLAGAR J If the admissibility of the evidence in Lau Chi's Case (4) rested on agency it is artificial and unreal to impute agency on the present facts.)

The accused consented to use the interpreter as a channel of communication with the person interrogating him. (He referred to Commonwealth v Vose (1892) 157 Mass 393 (32 NE 355) and People v Randazzio (1909) 194 NY 147 (87 NE 112).)

(DIXON CJ referred to Commonwealth v Storti (1901) 177 Mass 339 (58 NE 1021), Wigmore on Evidence 3rd ed. (1940) vol. VI, 1810 pounds, p. 279.)

In Storti's Case (1901) 177 Mass 339 (58 NE 1021) the English translation was held to be admissible by Holmes CJ on the ground that it was the best evidence of the conversation available at the time of the trial. The same principle applies here.

(McTIERNAN J referred to Stephen's Digest of Evidence, Articles 14 and 62.)

D. S. Hicks QC, in reply, referred to Subramaniam v Public Prosecutor [1956] 1 WLR 965

DISPOSITION: Appeal dismissed.

KEYWORDS:

SUMMARY: Where at a trial of a primitive Papuan native for murder evidence was given by a patrol officer of an interrogation of the accused in the course of which the accused made a confession in a native dialect which was unintelligible to the patrol officer, it being proved that a full and faithful translation into English of all the accused's answers to questions asked by the patrol officer was made by a native interpreter at the time of the interrogation,

Held, by Dixon CJ, Fullagar J, Kitto J and Menzies J, McTiernan J dissenting, that the evidence of the patrol officer was properly admitted by the trial judge. Per Dixon CJ: The translation word by word or sentence by sentence by an interpreter is not an ex post facto narrative statement of an event that has passed within the rule against the admissibility of hearsay but is an integral part of one translation consisting of communication through the interpreter. It is therefore enough if it is proved that what he did was to interpret faithfully.

Decision of the Supreme Court of the Territory of Papua and New Guinea (Mann CJ), affirmed.

Dixon CJ:

In my opinion this appeal should be dismissed for the reasons given by Fullagar J which I have had the advantage of reading. I think that the translation word by word or sentence by sentence by the interpreter is not an ex post facto narrative statement of an event that has passed within the rule against the admissibility of hearsay but is an integral part of one transaction consisting of communication through the interpreter. It is therefore enough if it is proved that what he did was to interpret faithfully. The version as spoken and heard in one language or the other—in the present case English—can then be given in evidence. (at p422)

McTiernan J:

The question in this appeal is whether the evidence which a patrol officer gave of an alleged confession by the appellant was receivable in evidence. The evidence was given on the trial of the appellant on an indictment for the murder of his wife. The trial took place before the Chief Justice of the Territory of New Guinea and Papua. The appellant is a primitive native of the Territory. He does not speak or understand English. His language is Motu. The patrol officer is not versed in that language. The alleged confession was made upon the interrogation of the appellant by an official interpreter, a native who could communicate with the appellant in Motu and with the patrol officer in English. The interpreter was called as a witness and he swore that he truly translated to the officer everything said by the appellant in answer to questions put to him. But that witness did not give evidence at the trial of what was said by the appellant. The officer said in evidence that he immediately transcribed by typewriter what the interpreter told him. The transcript was not personally authenticated by the appellant and was not tendered in evidence. The objection was made to the admission into evidence of the officer's oral proof of what the interpreter said to him in translating the appellant's answers at the interrogation on the ground that it was hearsay evidence. The view was taken by the learned Chief Justice that it was not hearsay. He considered that the interpreter could be compared with a telephone which the patrol officer might have used to communicate on the occasion in question with the appellant and which the appellant might have used to reply to his questions. In other words the interpreter was receiving in Motu and emitting in English the words of the appellant and the conversation between the officer and the appellant was a direct one and therefore the officer did not give a second–hand proof of the appellant's confession. I do not...