Detailed Analysis of The Queen v BL: Criminal Law Case Study

This case study analyzes The Queen v BL, a criminal law case involving allegations of sexual intercourse without consent and gross indecency. The case focuses on the admissibility of a recorded interview with the accused, BL, and the exclusion of this evidence. The analysis examines the role of a support person, the right to an interpreter, and compliance with legal procedures, including the Children (Criminal Proceedings) Act 1987 (NSW) and the Anunga Guidelines. The document highlights positive aspects such as the presence of a support person during the first interview and the accused's age. It also discusses negative aspects, particularly the lack of an interpreter during the second interview and the potential impact on the reliability of the admissions made by the accused. The discussion section provides a critical analysis of the case, considering issues of language comprehension, police caution, and the overall fairness of the proceedings. The court's opinion regarding the need for an interpreter and the reliability of the interview recordings is also considered.

Running head: CRIMINAL LAW
Criminal Law
Name of the Student
Name of the University
Author Note

1CRIMINAL LAW
Case overview
In The Queen v BL [2015], the accused BL is alleged to have committed sexual
intercourse without the complainant AX without her consent. He is said to have violated section
192(3) of the Criminal Code1. He is further charged for violating section 192(4) of the Criminal
Code on the ground of gross indecency with AX without her consent. The accused pleaded for
excluding a recorded conversation that the investigation officer conducted with BL on 9 January
20152.
The accused BL claimed that he refused to make certain admissions in the first interview
and participated in a second interview that was held on 9 January 2015 with respect to the
alleged offence. His grandfather GR accompanied with him as a support person on 18 November
2014 during the first interview conducted by the investigating officer. The Counsel for the
Crown contended that the circumstances in which the accused made admissions does not intend
to establish the fact that such admission was adversely affected. It implies that the several issues
advanced by the accused do not suffice the justification to exclude the recorded interview under
section 85 of the Evidence (National Uniform Legislation) Act.
Findings
Positive aspect of the case
When BL was prepared to open up about, the incident complained against him, GR
accompanied him to the police station as a support person on 18 November 2014 and Officer
1 [2015] NTSC 85.
2 Criminal Code Act 1995.

2CRIMINAL LAW
Steve Hancock conducted an investigation. GR being the support person provided evidence of
the fact that he has encouraged BL to speak the truth with a view to clear any form of
misunderstandings. As was observed in Phung & Huynh [2001], the role of a support person has
been explicitly explained3. The support person plays a significant role in ensuring that the
accused person is not being subject to any oppressive or unfair behavior. A support person
usually accompanies a child, especially, who is immature, timid or inexperience with respect to
the law enforcement matters and requires advice.
In the given case, the accused, BL had his grandfather GR as his support person during
his first interview that was conducted on 18 November. At the time of commission of the
offense, BL was only 17 year and was inexperience in matters relating to lawful enforcement.
Hence, he was entitled to nominate a support person during the interview.
When the accused, BL, refused to speak to any female officer, on the second interview,
which was held on 9 January, a male officer named, Officer Dwyer, informed BL that he would
be required to participate in an interview on 9 January 2015. In Phung’s case, an accused has a
right to be informed about the subject matter regarding which he /she is being subject to
questions and such questions must be conveyed to the accused in the language spoken or
understood by the accused. GR was capable of speaking Tiwi and during the interview session
held on 18 November, he had reformulated the questions in a language that was comprehensible
by BL. According to section 128 of Law Enforcement Powers and Responsibilities, an accused
is entitled to the right to obtain the services of an interpreter.
During the interview, conducted on 18 November 2014, Officer Adams discussed with
BL whether he needed an interpreter and GR, the support person for the accused, opined that the
3 [2001] NSWSC 115 (26 February 2001).

3CRIMINAL LAW
accused does not require any interpreter. Officer Adams further noticed that the accused was
speaking in English with GR, which made the officer believe that BL did not require any
interpreter as he was conversing very well. Moreover, BL’s auntie EW has testified that they
usually speak English and aboriginal English in their house and since the accused used to reside
with them, it is obvious that the accused was capable of understanding English. Furthermore, his
auntie contended that the accused attended Kormilda College, which re-establishes the fact the
accused was capable of comprehending English language and was not in need of an interpreter.
As per section 13 of the Children (criminal Proceedings) Act 1987 (NSW) any
statement, information, confession and admission given or made to a police officer by a child
who is a party to the criminal proceedings shall not be admitted as evidence in the criminal
proceedings4. In the given case, it can be perceived that the police officers have complied with
legislations with respect to the admissions made by the accused BL and that the circumstances in
which the accused made admissions does not establishes the fact that such admission was
adversely affected.
Negative aspect of the case
A support person cannot play its role unless the support person himself is not acquainted
with the English language. In the given case, GR acted as BL’s support person during his first
interview that was conducted on 18 November, but the interview conducted by the investigating
officers on 9 January 2015, did not involve a support person for the accused BL5.
Here, BL’s aunt EW acted as his support person for the interview conducted on 9
January. According to section 128 of the LEPRA, BL was entitled to an interpreter as he was
4 Children (criminal Proceedings) Act 1987 (NSW).
5 Berk-Seligson, Susan. The bilingual courtroom: Court interpreters in the judicial process. University of Chicago
Press, 2017.

4CRIMINAL LAW
unable to speak English fluently and his support person GR did not speak fluent English either6.
In regards to the second interview, the BL should have been provided with an interpreter, as he
did not have GR who was capable of comprehending the communication mode of BL.
The accused person contended that belonging to the aboriginal group, when the interview
was being conducted and he was unable to speak in English. Hence, he was entitled to an
interpreter but the state did not provide him with an interpreter and the police caution that should
have taken place before the commencement of the interview, was made after the interview7. The
accused person was not informed about the allegations that were made against him. Further, he
was not even provided with an appropriate support person for the interview conducted on 9
January, as GR who was an appropriate support person for the accused person was not even
aware of his arrest, hence, the EW was appointed as a support person for BL in the second
interview.
Furthermore, several substantial responses were assumed by significant leading questions
relevant to the offence charged. There were issues with respect to the matters pertinent to the
Anunga Guidelines and Police General Orders such as whether the accused person was able to
comprehend the caution contemplated by the police officers. It also includes issues related to the
fact whether the accused person was able to understand the allegations that were made against
him and the leading questions that were made during the recording of the interview.
6 Law Enforcement Powers and Responsibilities (LEPRA).
7 Richards, Kelly. "Child complainants and the court process in Australia." Trends & issues in crime and criminal
justice 380 (2009): 1.

5CRIMINAL LAW
Discussion
Critical analysis of the case
The accused person, BL was reluctant to speak with any female officer about the charged
offenses because of which Officer Adams asked Officer Dwyer to speak with BL during the
interview8. However, BL was provided with a list of person who could accompany him as a
support person as GR was becoming more of a witness than a support person. BS was selected as
a support person from the Red Cross who was a female when BL persisted to talk with a female
officer. Further, BS spoke only English, she did not belong to aboriginal background, and the
concern regarding participation of female officers was not evident while selecting BS as support
person.
The way BL was speaking conversing in English with BS was not considered as a
standard form of English by the court. His conversing manner signifies that BL was a partial
English-speaking person. GR also contended before the court that with BL he and his wife
mostly spoke Aboriginal English with considerable amount of Tiwi language with it. During the
interview held on 18 November, when the accused person was asked whether he requited a
interpreter, both GR and Officer Adams stated that there is no need to appoint an interpreter from
BL as BL was capable of understanding English owing to the fact that he was speaking in
English with GR. Given that GR was an appropriate support person for the accused person as he
could comprehend his communication mode, it was acceptable that an interpreter was not
appointed during the interview held on 18 November.
However, with respect to the second interview that was conducted on 9 January, the
support person appointed for the accused person was BS who only spoke English, hence, it was
8 Schmalleger, Frank, et al. Criminal justice today. Prentice Hall, 2014.

6CRIMINAL LAW
necessary to appoint an interpreter for BL9. Further, Officer Adams asserted that she did not
appoint an interpreter for BL in the second interview mainly because GR said so during the first
interview held on 18 November 2015. The police officer did not even ask the accused person
about his first language and emphasized on the fact that since the accused person had attended
Komilda College, he is capable of understanding and speaking English. EW, auntie of the
accused person also agreed that aboriginal English was spoken in her house and was usually
spoken with the accused person as well.
Officer Dwyer did not ask the accused person either about his first language and stated
that he and the accused both understood each other without misunderstanding. It can be argued
here that the recordings of the interview indicate the discussion with BL about the appointment
of interpreter, lacked clarity. In the first interview, GR stated no interpreter was required as he
understood the communication mode of BL. However, with respect to the second interview, in
the absence of GR as support person, it is apparent that there was high probability of
miscommunication as the support person only spoke English and the first language of the
accused person was Tiwi. Under such circumstances, the reliability of the admissions made by
the accused person was adversely affected.
Further, while the second interview was being held on 9 January, BL was neither arrested
nor was he under custody, he was merely in the police station. On being questioned whether BL
required an interpreter, his response long silence and monosyllabic answers. Such responses in
an interview were not reliable. The police caution which states that the statements made by the
accused person during the interview may be used against him as evidence and that he has a right
to remain silent and not answer any questions asked by the investigating officer, must be made to
9 Cunneen, Chris, and Rob White. Juvenile justice: Youth and crime in Australia. Oxford University Press, 2011.

7CRIMINAL LAW
the person in custody before the commencement of the interview10. However, in this case, the
police officers did not mention about the police cautions to the accused person before conducting
the interview.
The responses given by the accused person, BL, indicate the fact that he did not have
command over the English language, which implies that the court cannot rely on the interview
conducted. In this context the circumstances under which the admissions made by the accused
person, BL, were such that there is a high probability that the truth of the admissions made by the
accused person were affected adversely. The reliability of the conversation during the second
interview reduces owing to the failure of the state to appoint an interpreter for the accused
person. The fact that the accused person speaks broken English is not sufficient evidence to
establish that the interview with the police officers was completely reliable.
In the given case, the court was of the opinion that Officer Dwyer did not ask BL about
his first language otherwise Tiwi language interpreter could have been appointed for BL. The
investigating officers emphasized on the fact that BL was a student of Kormilda College; hence,
he was capable of comprehending and speaking English. Moreover, the Anunga Guidelines
required the investigating officer to ensure that the caution is explained in the language spoken
and understood by the accused person and such person is capable of participating in the
conversation without an interpreter11. It implies high probability of miscommunication during the
recorded conversation with the accused person. At the time of commencement of the interview,
BL did not want to talk to the police officers, which indicated a gesture that he did not wish to
participate in the interview.
10 Berk-Seligson, Susan. The bilingual courtroom: Court interpreters in the judicial process. University of Chicago
Press, 2017.
11 Mikkelson, Holly. Introduction to court interpreting. Taylor & Francis, 2016.

8CRIMINAL LAW
Further, during the interview held on 9 January, BL was unaware of the fact he was being
investigated for committing a sexual offense against the child made him think that he providing
information as a witness. Further, section 140 Police Administration Act procedures are
conducted on post-arrest but BL was not arrested, hence it was not applicable to interview
conducted prior to the arrest. Thus, although the admissions have significant probative value
with respect to the offences charged, the interview held on 9 January are not reliable, hence,
should be excluded under section 90 of the (Evidence National Uniform Legislation Act)12.
Conclusion
The communication issues faced by the participants arise when the English speakers are
incapable of speaking fluent English that is used in the legal system. The problem enhances,
especially for those participants who belong to the aboriginal group and speaks Aboriginal
English like the accused person, BL, in the given case. In case, any person who is inexperienced
in law enforcement matters must be accompanied with a support person while he is interviewed.
The support person must be someone who is capable of understanding the language spoken by
the accused. The accused must be informed about the reason for which he is being interviewed
and be informed of the police cautions before the commencement of the interview.
Thus, such persons should be explained in the language they comprehend and are
comfortable to speak and express their contentions, therefore, addressing the issues related to
communication within the justice legal system.
12 Evidence National Uniform legislation Act.

9CRIMINAL LAW
Reference List
Bartels, Lorana. "Police interviews with vulnerable adult suspects." (2011).
Berk-Seligson, Susan. The bilingual courtroom: Court interpreters in the judicial process.
University of Chicago Press, 2017.
Children (criminal Proceedings) Act 1987 (NSW)
Criminal Code
Cunneen, Chris, and Rob White. Juvenile justice: Youth and crime in Australia. Oxford
University Press, 2011.
Daly, Kathleen. "Restorative justice and sexual assault: An archival study of court and
conference cases." British Journal of Criminology 46.2 (2005): 334-356.
Dixon, David. "“A Window into the Interviewing Process?” The Audio-visual Recording of
Police Interrogation in New South Wales, Australia." Policing & Society 16.4 (2006): 323-348.
Eastwood, Christine Jane, and Wendy Patton. The experiences of child complainants of sexual
abuse in the criminal justice system. Canberra, Australia: Criminology Research Council, 2002.
Erez, Edna, Leigh Roeger, and Frank Morgan. "Victim harm, impact statements and victim
satisfaction with justice: An Australian experience." International review of Victimology 5.1
(1997): 37-60.
Evidence National Uniform legislation Act

10CRIMINAL LAW
Gibbons, John. "Revising the language of New South Wales police procedures: Applied
linguistics in action." Applied linguistics 22.4 (2001): 439-469.
Gudjonsson, Gisli H. "Psychological vulnerabilities during police interviews. Why are they
important?." Legal and criminological Psychology 15.2 (2010): 161-175.
Heydon, Georgina. "The language of police interviewing." Hampshire: Palgrave Macmillan
(2005).
Law Enforcement Powers and Responsibilities
Lee, Jieun. "Interpreting inexplicit language during courtroom examination." Applied Linguistics
30.1 (2009): 93-114.
Marchetti, Elena, and Elena Marchetti. "Indigenous sentencing courts: Towards a theoretical and
jurisprudential model." Sydney L. Rev. 29 (2007): 415.
Mikkelson, Holly. Introduction to court interpreting. Taylor & Francis, 2016.
Phung & Huynh [2001] NSWSC 115 (26 February 2001)
Richards, Kelly. "Child complainants and the court process in Australia." Trends & issues in
crime and criminal justice 380 (2009): 1.
Schmalleger, Frank, et al. Criminal justice today. Prentice Hall, 2014.
Strang, Heather. Restorative justice programs in Australia. A Report to the Criminology
Research Council. Canberra: Australian Institute of Criminology, 2001.
The Queen v BL [2015] NTSC 85

11CRIMINAL LAW