Admissibility of evidence — need for interpreter — whether Family Violence Court memo a "statement" — whether defendant aware statements could be used in charge — R v Wichman [2015] NZSC 198 — Fan v R [2012] NZCA 114 — Evidence Act 2006, ss 4, 7, 8, 27, 28 & 30. The defendant faced multiple charges of rape. The complainant in the rape charges chased the defendant through the streets while armed with a knife. When being interviewed by the police, as the victim, about the incident, the defendant gave a written statement explaining that the complainant was angry at him for getting her pregnant. Later, when being interviewed by a victims adviser at the Court, he said he had been in an on and off relationship with the complainant for one to two years. The adviser recorded this information in a memo. Finally, when being interviewed by the police about the rape charges, he denied having any sexual relationship with the complainant. In this pretrial matter, the Crown sought to admit three statements as evidence, to show that the defendant did have a sexual relationship with the complainant. The defendant argued that the statements should not be admitted because he had poor English and had no interpreter when making the statements. Therefore it would be unfairly prejudicial to admit the statements. In regards to the Court victims adviser's memo, the defendant argued that it was not a statement at all, as it came from the adviser, not from him and because the defendant had had no opportunity to check what it said or to sign it. Therefore it was not admissible under s 27 of the Evidence Act. The Court rejected this argument, saying that the matters the defendant raised did not prevent the memo from being a statement. The Court turned to the issue of whether it would be prejudicial to admit the statements. The defendant argued that the circumstances in which the statements were made affected their reliability. He had no interpreter in the police interviews and was unaware he could end up facing charges. The Court found that the defendant understood what the constable asked him in the police interview. His English was good enough for him to provide a detailed account of the knife incident. Also the constable had taken great care when interviewing the defendant. Therefore the written police statement was admissible. However the Court found that the evidence of the defendant's non-verbal communications in response when asked if he was in a relationship or had sex with the complainant was inadmissable, as it was unclear whether the defendant understood these concepts. The Court found the victim's adviser's memo was admissible, given that the defendant accepted most of the information in the memo was correct, the adviser had taken great care and an interpreter was present over the phone. Finally the Court dealt with the issue of whether the evidence should be excluded because the defendant had been unaware that it could be used in charges against him. The Court found that the evidence should not be excluded. The defendant had not been tricked into providing it, and there was nothing to suggest that allowing the evidence would otherwise be unfair to the defendant. Judgment Date: 22 June 2018. * * * Note: names have been changed to comply with legal requirements. * * *