Director of Public Prosecutions v Nguyen (Ruling no.2)
[2021] VCC 1084
•27 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01278
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUONG NGUYEN |
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JUDGE: | HIS HONOUR JUDGE LACAVA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 June 2021 |
DATE OF RULING: | 27 July 2021 |
CASE MAY BE CITED AS: | DPP v Nguyen (Ruling no.2) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1084 |
REASONS FOR RULING
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Subject: Admissibility to Record of Interview
Ruling: Record of Interview Allowed
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Fisher | |
For the Accused | Ms A. Dixon |
HIS HONOUR:
1I now turn to the matter of the record of interview.
2The accused Luong Thi Nguyen is charged on indictment with one charge of cultivating a narcotic plant, Cannabis L, in a quantity that was not less than a large commercial quantity. This offence is alleged to have been committed at a property at Hoppers Crossing on the 24 October 2019. (Charge 1)
3The allegations in Charge 1 allege the growing of a large cannabis crop by the hydroponic method. Charge 3 is a charge of theft of electricity by means of an electrical by-pass at the Hoppers Crossing property where that crop was allegedly grown by the accused. (Charge 3)
4The accused is also charged on the same indictment with a charge of cultivating a narcotic plant, Cannabis L, in a quantity that was not less than a commercial quantity. This offence is alleged to have been committed at a property at Wyndham Vale also on the 24 October 2019. (Charge 2)
5
Charge 4 is another charge of theft of electricity by means of an electrical
by-pass at the Wyndham Vale property where that crop was allegedly grown by the accused. (Charge 4)
6The accused is alleged to have committed each of the charges with a male, Cuong Van Le ('Le'). They are each charged on the same indictment. The prosecution case is that at all times they acted together as principal offenders in each of the charges. The co-accused Le is now deceased in circumstances not here relevant, so that the trial proceeds only against Ms Nguyen.
7I have previously ruled on a prosecution application to lead evidence as coincidence evidence. In rejecting the prosecution application I set out all of the relevant facts. For the purposes of this ruling, it is not necessary that I do so again.
8Before a jury is empanelled to hear the accused's trial, Ms Dixon of counsel who appears on behalf of Ms Nguyen makes application to have evidence of a DVD and transcript of a record of interview conducted between the informant and the accused on the 24 October 2019 ruled inadmissible.
9
As part of its case, the prosecution relies upon what the accused said in that record of interview to connect her to the Hoppers Crossing property. It will be remembered that the accused was arrested by the informant at the Hoppers Crossing property with the co-accused Le. When she was interviewed the accused told the police that she attended at the property on the directions of her employer to collect some plants. Otherwise, she said that she had no connection with the property and had never been there before. She said she had no knowledge of the cultivation of cannabis at the property.
The prosecution also relies upon what the accused said when interviewed as evidence to enable a jury to form an assessment of her credibility.
10Ms Dixon filed an outline of her submissions on this application in writing dated 19 May 2021. Ms Dixon submitted that the interview was unfair because her client was not properly advised of her rights under s464C of the Crimes Act 1958 (Vic) particularly:
a. Her right to communicate with a legal practitioner; and
b. Her right to communicate with a friend or relative.
11Ms Dixon also submitted that the interview was unfair because the accused was not permitted to speak to a friend or relative, after having expressed a wish to do so.
12Ms Dixon's application relied upon alleged non-compliance by the informant with s464C of the Act. She also sought exclusion of the record of interview into evidence relying upon s138 and s90 of the Evidence Act 2008.
13For the purposes of this ruling, I have watched a recording of the interview of which there is a typed transcript in the depositions commencing at p164.
14
After her arrest the accused was taken to Wyndham North police station where the interview initially commenced at 9.10 am. It is clearly apparent the accused speaks little or no English and that a Vietnamese interpreter would be required. The interview was therefore suspended at 9.11 am. It recommenced at
12.35 pm with a Vietnamese interpreter provided through an interpreter service via a telephone link with a speaker phone connecting the interview room with the interpreter in the middle of the table.
15For the purposes of this ruling I conducted a voir dire and heard argument from the parties on the 25 June 2021. On that occasion the informant Senior Constable Fallone gave evidence.
16For the reasons that follow, I reject the application by the defence to exclude the evidence of the record of interview.
17The informant gave evidence that the accused was arrested at the Hoppers Crossing property at about 7.45 am. The record of interview initially commenced at 9.10 am. The informant gave evidence that at that time he was not aware of the existence or relevance of the Wyndham Vale property. He also initially gave evidence that when the interview resumed at 12:35 pm he was still not aware of the Wyndham Vale property. [1]
[1] T 7-8
18However, in evidence and after looking at his notes made on the morning of the arrest of the accused, it became clear that the informant was aware of papers found in a car that suggested the existence of the Wyndham Vale property at 9.52 am.[2] From that point onwards other members were updating an affidavit to get a warrant to search the Wyndham Vale property.[3]
[2] T 17
[3] T18
19The informant gave evidence that a search warrant relevant to the Wyndham Vale property was executed at 12.20 pm. He said he was not involved in the execution of that warrant.[4] But at the time of the re-commencement of the record of interview at 12.35 pm the informant gave evidence he was aware of the existence of a search warrant to search the Wyndham Vale property.
[4] T11
20He said he did not allow Ms Nguyen to communicate with a family member because he was concerned there might be destruction of evidence 'based on the grounds of the other search warrant taking place'[5].
[5] T19
21
The prosecution case is that the informant Senior Constable Fallone properly cautioned the accused and advised her of her legal rights prior to
re-commencing the interview.
22Further, the prosecution submits that having regard to the evidence of the informant, that at the time of the re-commencement of the interview he was aware of the existence of the Wyndham Vale property and steps being taken to search it, then in all of the circumstances the informant held a belief on reasonable grounds that if he permitted the accused to exercise her rights to contact a lawyer, or friend or member of her family then this might lead to destruction of evidence within s464(1)(c) of the Crimes Act.[6] I accept the evidence of the informant to this effect and I accept the prosecution submissions. When the interview recommenced the informant was justified in refusing a request by the accused to speak with her family. The investigation was in its very early stages and it was known that there was another property to be searched. In my opinion the informant was justified in forming the opinion that if the accused was permitted to speak with her family at that time, before the search warrant was executed, then the investigation could be compromised.
[6] T21, 25, 26 xxn
23The informant concedes that Ms Nguyen asked to speak with a family member after her rights under the Act were explained to her.[7] He said he would have allowed Ms Nguyen to speak to a lawyer had she asked to do so.[8] He conceded that at committal he had given evidence that he and his sergeant had agreed that Ms Nguyen would not be permitted to speak with a lawyer. Having reflected on that evidence he said that was a mistake.[9]
[7] T21 xxn
[8] T22 xxn
[9] T22-23 xxn
24Ms Dixon extracted from the transcript of the record of interview the relevant portion that gives rise to this admissibility argument at paragraph 6 of her submissions. The relevant questions and answers for the purposes of this ruling are from Question 10 to 14 inclusive:
Q10: Okay. We'll get to that. I promise we'll get to that. I just got to get some other stuff out of the way first but you can tell me your story soon. Before continuing, I must inform you that you do not have to say or do anything but anything you say or do may be given in evidence. Do you understand that?
Suspect: [nods]
Q11: I must also inform you of your rights. You have the right to communicate with or attempt to communicate with a friend or relative to inform that person of your whereabouts. You have the right to communicate with or attempt to communicate with a legal practitioner. If you are not a citizen or a permanent resident of Australia, you have the right to communicate with or attempt to communicate with the consular office of the country of which you are a citizen. Do you understand these rights?
Interpreter: Yeah.
Q12. Do you wish to exercise any of these rights?
Interpreter: Yes
Q13. Which one would you like to exercise?
Interpreter: I'd like to contact my family.
Q14. Okay. So at the moment, I'm not going to allow for you to contact a family member. There's still an ongoing investigation and it could jeopardise the investigation. Do you understand that?
Suspect: Mm.'
25Before continuing, it is necessary to set out the relevant legislation, namely s464C of the Crimes Act. Relevantly, it provides as follows:
CRIMES ACT 1958 - SECT 464C
Right to communicate with friend, relative and legal practitioner
(1) Before any questioning or investigation under section 464A(2) commences, an investigating official must inform the person in custody that he or she—
(a) may communicate with or attempt to communicate with a friend or relative to inform that person of his or her whereabouts; and
(b) may communicate with or attempt to communicate with a legal practitioner (whether the term legal practitioner or lawyer is used)—
and, unless the investigating official believes on reasonable grounds that—
(c) the communication would result in the escape of an accomplice or the fabrication or destruction of evidence; or
(d) the questioning or investigation is so urgent, having regard to the safety of other people, that it should not be delayed—
the investigating official must defer the questioning and investigation for a time that is reasonable in the circumstances to enable the person to make, or attempt to make, the communication.
(2) Subject to subsection (1), if a person wishes to communicate with a friend, relative or legal practitioner, the investigating official in whose custody the person then is—
(a) must afford the person reasonable facilities as soon as practicable to enable the person to do so; and
(b) must allow the person's legal practitioner or a clerk of the legal practitioner to communicate with the person in custody in circumstances in which as far as practicable the communication will not be overheard.
26Ms Dixon relied upon the principles expressed by the High Court as to the correct approach to the application of s464C of the Crimes Act 1958 in Pollard v The Queen (1992) 176 CLR 177 and particularly passages from the judgements of Justice Toohey at pp221-222, and Justice McHugh at p235.
27Ms Dixon submitted correctly the legislation imposes a duty on police to 'inform' persons in custody of their legal rights, and entitlement to exercise them prior to questioning.
28Ms Dixon acknowledged that in the passage from the record of interview that I have set out above at Question and Answers numbered 10 to 14 that the accused was advised of her legal rights at Question 11, but this information was compromised or rendered confusing to the accused by what follows at Question 12 with 'which one would you like to exercise?'
29Ms Dixon submitted that to an unsophisticated person such as the accused, a person unfamiliar with the Australian system, Question 12 would have conveyed to the accused that she was required to choose only one of the legal rights that had just been explained to her, and that she could not exercise each of them.
30It transpired that the accused told the informant that she would like to speak to her family, and as recorded the informant would not permit her to do so.
31
Ms Dixon submitted that it seems highly unlikely that her client had any real appreciation of her rights, particularly her right to speak to a lawyer.
She submitted that s464C was plainly breached enlivening s138 of the Evidence Act 2008 as a power to exclude the evidence.
32I do not accept this submission. In my opinion the informant complied with the requirements of s464C. In my opinion the informant's question recorded at Question 12 did not compromise the accused rights in any way. It did not confuse the accused in any way. In my opinion s138 of the Evidence Act is not enlivened here.
33The accused did ask to speak to her family, a request that was refused, in my view on reasonable grounds. However, the accused requests indicates to me she had an understanding of her rights which she tried to exercise. Through the interpreter the accused answered that she understood her rights when asked if she understood at Question 11.
34Apart from what is contained by way of evidence in the recorded interview itself, there is no direct evidence of the accused understanding at the time it was conducted. She was not called as a witness on the voir dire.
35In my opinion, the argument advanced by Ms Dixon does not give sufficient credit to the way the informant advised the accused of her legal rights through the interpreter, in Question 11.
36Mr Fisher submitted that when you watch and listen to the recording of the interview, what is recorded as a question was a recording of the informant advising the accused of each of her rights in a manner and tone that was broken down into a clear explanation of the individual legal rights, both by the informant, and the interpreter. Mr Fisher submitted it was never put to the accused that she had to choose which of the rights to exercise. I accept that to be the case. I accept Mr Fisher's submissions.
37Mr Fisher submitted that when one considers the balance of the interview, and what the accused said throughout, it is clear that the accused was aware of what was happening and was able to properly assert her position. I also accept that to be the position.
38Ms Dixon further relied upon s90 of the Evidence Act to exclude the evidence of the record of interview. She submitted that there was clear and inherent unfairness to the accused in failing to adequately explain to the accused her rights under s464C of the Crimes Act.
39As I said earlier, in my opinion, properly understood, when one watches the DVD of the interview, the accused legal rights under s464C were properly explained to her and she was never told that she had to choose one right only to exercise. That being the case, I do not accept that the interview of the accused was conducted in an unfair manner because her legal rights were not properly explained to her.
40In my judgment there is no basis for excluding the record of interview from evidence led by the prosecution on s90 grounds.
41The record of interview will be admitted into evidence.
42MR FISHER: If Your Honour pleases.
43HIS HONOUR: I am not sure where that leads us. Did I bail your client to a certain date, Ms Dixon?
44MS DIXON: I thought she was bailed to this date, Your Honour. I may be incorrect about that but that was my memory and she is here.
45HIS HONOUR: Yes.
46MS DIXON: Your Honour, my understanding is that the next argument that may be ventilated before this court will be the severance argument, however speaking to my friend before the Your Honour came onto the Bench, it might be that the prosecution wants some time to consider whether there is any prospect of resolution of this matter in light of Your Honour's rulings.
47HIS HONOUR: Yes.
48MS DIXON: So perhaps Mr Fisher - - -
49HIS HONOUR: Is there a trial date set, Mr Fisher, do you know?
50MR FISHER: No, I do not think there is, Your Honour, and I think we have just been floating around and I am not sure if Your Honour is seized - Your Honour is at the moment, seized of the matter in terms of it proceeding any further.
51HIS HONOUR: Yes. I will just ask my associate. Ms Associate, can you hear us?
52ASSOCIATE: I can, Your Honour. The next listing is before Judicial Registrar Phillips on 12 August at 9 o'clock.
53HIS HONOUR: All right.
54MR FISHER: All right, I did not have a not of that, Your Honour, but that would be convenient to the Crown. That would give us some time to digest Your Honour's ruling, particular in relation to the coincidence evidence.
55HIS HONOUR: Yes. I will have both of these rulings made available to both of you immediately after this. Just treat them as very unrevised and what I did not say is that there are also some footnotes that I have not read out, but they should come through in the transcribed revised ruling.
56MR FISHER: Yes. Yes, thanks, Your Honour.
57HIS HONOUR: Well what date was that, 9 August?
58ASSOCIATE: The 12th.
59HIS HONOUR: Sorry, 12 August at 9.30, was it?
60ASSOCIATE: No, the 12th at 9 o'clock.
61
HIS HONOUR: I have got everything wrong. I will adjourn the matter until
12 August in the 9 am list before Judicial Registrar Phillips for directions and Ms Nguyen's bail will be extended on the same terms and conditions to appear either in court or by video link on that day.
62MS DIXON: Thank you, Your Honour. May I confirm that if this matter does proceed to a severance argument, Your Honour will be willing to hear that argument given Your Honour's understanding of the case?
63HIS HONOUR: Certainly. I would not want to foist this on anyone else.
64MS DIXON: Thank you, Your Honour.
65HIS HONOUR: But I will be, depending upon what happens with lockdowns and so forth, in Mildura for three weeks from next Monday and then I am having a couple of weeks' leave. So I will not be back until early September.
66MS DIXON: That might be a suitable time in any case, Your Honour.
67HIS HONOUR: Yes. Well thank you both.
68MS DIXON: Thank you, Your Honour.
69MR FISHER: Thank you, Your Honour. I apologise for the mix up with the interpreter this morning, I am not sure what happened. I will find out.
70HIS HONOUR: No problem. It is a matter that Ms Dixon can clearly explain to Ms Nguyen what has occurred.
71MR FISHER: Yes.
72MS DIXON: Yes.
73HIS HONOUR: Thank you. Can you adjourn the court please?
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