Director of Public Prosecutions v Pham (Ruling No. 1)

[2022] VCC 1568

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02142

DIRECTOR OF PUBLIC PROSECUTIONS

v

Tung PHAM

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JUDGE:	Judge Bayles
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2022
DATE OF RULING:	19 September 2022
CASE MAY BE CITED AS:	DPP v Pham (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1568

RULING
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Subject:CRIMINAL LAW – RULING.

Catchwords: Application to exclude record of interview – section 90 Evidence Act 2008 – record of interview – lack of interpreter - adequately understand the right to silence - section 464A(3) of the Crimes Act.

Legislation Cited:      Evidence Act 2008 (Vic); Crimes Act 1958 (Vic).

Cases Cited:DPP v Natale (Ruling) [2018] VSC 339; R v Contenanza [1958] Tas SR 3; R v LI and Another [1993] 2 VR 80; R v Nguyen 78 A Crim R 582.

Ruling:Record of interview excluded pursuant to section 90 of the Evidence Act 2008 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. O’Toole	Solicitor for the Office of Public Prosecutions
For the Accused	Dr G. Boas	Auslex Law Group

Introduction

1This is an application by the defence for the exclusion of the record of interview between Senior Constable Singh and Tung Pham, that was conducted at the Fawkner police station on Friday, 28 May 2021. The application is made pursuant to section 90 of the Evidence Act 2008 (Vic) (‘Evidence Act’).

2I will indicate at the outset that it is my intention to exercise my discretion pursuant to section 90 of the Evidence Act to exclude the interview from the evidence at trial. I will now set out my reasons for that decision.

Background

3On Friday, 28 May 2020, search warrants were executed at the premises at 123 Market Street, Essendon. Senior Constable Dalbir Singh observed the accused man attempting to leave the premises via a rear sliding door. Two rooms were located inside the premises which had been converted for the purpose of cultivating cannabis.

4A total of 28 cannabis plants of various sizes and maturity were located and seized. The accused man was arrested by Senior Constable Singh and conveyed to the Fawkner police station where he was then interviewed by SC Singh and Acting Detective Sgt Daniel Cove. During the course of that interview, the accused man made significant admissions against his interest in the proceedings that are now before the court.  

5The accused man now stands charged with one charge of cultivation of a narcotic plant in a commercial quantity, two charges of theft, and five charges of using a false document.

Pre-trial hearing

6Dr Boas, who appeared on behalf of Mr Pham at the pre-trial hearing, sought the exclusion of the record of interview in its entirety. A defence written outline of submissions, dated 6 June 2022, was filed with the court. Although Dr Boas was not the author of that document, it was adopted and relied upon in the course of argument.

7The defence argument, as outlined in the written submission, in very brief compass, was that –

(a)   The accused man is a 34-year-old Vietnamese national. At the time of his arrest he was in Australia on a bridging Visa. His first language is Vietnamese. He is capable of speaking limited, conversational English.

(b)   It was contended that the accused requires the assistance of an interpreter if he is to adequately understand complex matters related to him in English.

(c)   The accused man was not provided access to an interpreter at any stage during his dealings with police in relation to the interview that was conducted on 28 May 2021.

(d)   The contention of the defence was that although Senior Constable Singh read the accused man his rights both at the place of arrest and on tape at the commencement of the interview, Mr Pham did not adequately understand his right to silence, and therefore was not in a position to exercise that right. The defence contended that had Mr Pham properly understood his right to silence, he would have exercise that right, and not participated in the interview as he did.

Legislative basis for exclusion

8Section 90 of the Evidence Act creates a discretion to exclude admissions. It states:

“In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if –

(a)   the evidence is adduced by the prosecution; and

(b)   having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.

Evidence at the pre-trial hearing

9The two police officers who were present at the interview gave evidence at the pre-trial hearing. Sgt Daniel Cove, in evidence in chief, gave evidence that he assisted in the interview of the accused man, acting as the corroborator. He did not have any conversation with the accused prior to the interview commencing. Sgt Cove gave evidence that he did not have any difficulty understanding Mr Pham’s responses in the interview. He did not form the belief at any time that Mr Pham required the assistance of an interpreter. He gave evidence that had he formed the belief that an interpreter was required he would have stopped the interview and arranged one.

10Under cross-examination by Dr Boas, Sgt Cove said that he had no knowledge of any exchange between Senior Constable Singh and the accused prior to the record of interview commencing. He did not accept that there were times in the interview where Mr Pham struggled to understand the question that was being put to him.

11Senior Constable Singh gave evidence that he was present at the arrest of Mr Pham at 123 market Street in Essendon on 28 May 2021, and placed Mr Pham under arrest. He provided a standard police caution to Mr Pham at that time. It was read from the blue card issued by the Victoria police. Mr Pham responded to that caution by saying the word “okay”. Later, at the Fawkner police station, he provided Mr Pham with his legal rights, again read from the same blue card.

12At the end of giving the caution (I interpret, at the place of arrest) Senior Constable Singh asked: “do you understand that” to which Mr Pham replied “okay”. Senior Constable Singh then asked do you wish to exercise any of these rights, to which Mr Pham replied “no”. All of this communication occurred in English.

13Senior Constable Singh said that he did not form a belief that the accused man struggled in any way to understand what was being said. He formed the belief that the accused man did not need an interpreter. Evidence was given about a phone call that Mr Pham was allowed to make to his wife in the backyard of the premises shortly after the arrest. SC Singh was present while that phone call was made, and Mr Pham spoke to his wife in English.

14Senior Constable Singh arranged for Mr Pham to be transported to the Fawkner police station. Mr Pham was taken to an interview room, he waited in the interview room while further enquiries were made. Senior Constable Singh then commenced the interview with Mr Pham at 2:49 PM, with Sgt Cove as the corroborator. The audio-visual recording of the record of interview was tendered at the pre-trial hearing, and marked Exhibit P1. The transcript of that recording was also received and marked as an aid to Exhibit P1.

15Senior Constable Singh gave evidence that during the approximately half hour interview, he did not form a belief that Mr Pham required the assistance of an interpreter.

16An 11 page bundle of photographs of a mobile phone that had been seized from Mr Pham at the time of the arrest was also tendered in evidence, and marked Exhibit P2. Those photographs show the phone displaying various text message exchanges that were recorded on the phone.

17Senior Constable Singh gave evidence that he made enquiries into Mr Pham’s immigration status. Mr Pham arrived in Australia on a student Visa on 19 November 2012. A bridging Visa was granted on 30 August 2017. The enquiries with the Department of Home Affairs produced a certificate relating to an English language course completed by the accused. It describes a 10 week course referred to as an ELICOS program. I received that certificate which was marked Exhibit P3. That certificate appeared to be dated 7 February 2014.

18Under cross-examination by Dr Boas, Senior Constable Singh conceded that he was aware that Mr Pham was a man of Vietnamese origin. He acknowledged that Mr Pham’s response to the questions he was asked about his caution and rights at the place of arrest was “okay”. That is, he did not say “yes”, he said “okay”.

19In relation to the conversation that Mr Pham had on the phone with his wife shortly after the arrest, SC Singh conceded that he told Mr Pham to speak in English on the phone to his wife. SC Singh said that he did not recall any of the content of that conversation.

20SC Singh gave evidence that he did not at any stage ask Mr Pham if he needed or would feel more comfortable with the assistance of an interpreter. He did not have any conversation at all in relation to having an interpreter. There was no conversation at the point of arrest, nor en route back to the police station, nor at the police station prior to the recording. SC Singh said that he had no doubt in his mind, so he did not ask that question at all.

21SC Singh agreed that being in a police station would have been a stressful experience for Mr Pham. He agreed that being in a police station could be stressful and that everyone responds separately.

22Dr Boas called Mr Pham to give evidence at the pre-trial hearing, with the assistance of a Vietnamese interpreter. He gave the following evidence –

(a)   He arrived in Australia in late 2012. He is married, he and his wife are both Vietnamese nationals, they met in Vietnam. His wife does not speak English well. They speak with each other in Vietnamese. They do not speak English at all in the home. They have no English-speaking friends.

(b)   Mr Pham spoke almost no English when he arrived in Australia. He completed an English intensive course at Swinburne University. Although the certificate that was tendered describes it as a 10 week course, Mr Pham said it wasn’t 10 weeks. He said his English was very poor at the time. He said he thought it was a 20 or 30 week course. He said he believed he started the course in January 2013, and completed it in 2014. He said it was very much general English. He also completed the English course for overseas students but at its lowest level. That was a requirement for the student Visa.

(c)   Mr Pham said that he does not speak English very often in his day-to-day life. He lives in an area where there are a lot of Vietnamese shops so there is not a great need for him to use English. He said he does use English when he goes to other places, but is still very basic like to order food or something like that.

(d)   He said he does not watch television in English. He does not deal with any technical issues and matters in English. For example, if he were to deal with immigration authorities, he would go through an agent who is Vietnamese. He is not required to answer questions either in person or on a form in the English language in relation to these applications.

(e)   When asked about the day of his arrest, and the provision of certain rights, he said he cannot be sure whether he remembers everything. He did not remember a police officer telling him that he had a right to see or speak to a lawyer. He did not remember a police officer telling him that he did not have to say or do anything but anything he did say or do may be given in evidence. He did not remember being told that he had a right to speak to somebody at a consular office. In the witness box, when the words “consular office” were said in English, he said “I don’t know what that is”.

(f)    When asked in the witness box, whether he understands what is meant by the English language phrase: “you do not have to say or do anything, but anything you say or do may be given in evidence” he said “I understand it is something related to evidence, but I do not fully understand the phrase”.

(g)   He was asked: “what did you understand about whether you had to answer the questions that police were asking you during the record of interview or not?” he answered: “from what I understood, that was, I need to provide a – information to or – or answer to the police.”

(h)   He was asked: did you understand that you are allowed not to answer the questions the police asked you – to which he answered: “I didn’t. I do not know about that.”

(i)    He said he had not had any dealings with police in Australia except for a drink-driving charge which he could not really remember. He attended court in relation to that matter and had someone there to translate for him. He said that he has not had any dealings with the police in Vietnam.

(j)    In relation to what he understood about whether you have to answer questions when questioned by the police in Vietnam, he said: “I do not know about the law, but in general, in Vietnam if the police ask me a question, I have to answer.”

(k)   Dr Boas asked Mr Pham: “if you had understood that you did not have to, you are not required to answer the questions the police were asking you, would you have answered them anyway or not? Mr Pham said: “I will not answer”.

(l)    He said he did not remember being offered the services of an interpreter at any time by the police on that day. He said at the time he was feeling shocked and ‘panic’. He was very worried and ‘panic’.

23Under cross-examination by Mr O’Toole, Mr Pham said he did an English language course starting in 2013, he said that was very basic English, for people who had no English or very little English. He said he did not quite complete that course. Then he went on to study another course for overseas students, but it was at a lowest level, there were other levels above that, three or four levels above that, which he did not complete.

Mr O’Toole asked Mr Pham further questions about the English language course. Mr O’Toole put to Mr Pham that he fully understood the caution that was given to him at the beginning of the record of interview. Mr Pham responded to that: “I don’t even, I don’t remember, the interview and how it went”. Mr O’Toole further questioned Mr Pham about his recollection of the interview and his understanding at the time.

Submissions of the defence

24In oral submissions at the pre-trial hearing, Dr Boas reiterated that the argument, in essence, was that Mr Pham is a Vietnamese national, English is his second language, whilst he has some conversational English ability, his level of English is not such that he is necessarily able to comprehend complex concepts expressed in the English language.

25Dr Boas submitted that Mr Pham’s evidence was that on the day of his arrest and at the commencement of the interview at the Faulkner police station, he did not fully understand the caution that was given, and the right at law not to answer questions that were asked by police at that time. His evidence was that if he had been aware of that right, he would have exercised that right and not answered those questions.

26The argument that flows from this, is that Mr Pham did not properly understand his right to silence, and thus did not have the practical opportunity to exercise it. His evidence was that if he had understood his right to silence, then he would have exercised it. Therefore, I should exercise my discretion to exclude the contents of the record of interview, on the basis that having regard to the circumstances in which those admissions were made, it would be unfair to the accused man to use that evidence in the trial against him.

27Dr Boas submitted that the right to silence is a fundamental right enshrined in the criminal law. Section 464A(3) of the Crimes Act 1958 (Vic) (‘Crimes Act’), provides that:

(a)   before any questioning (other than a request for the person’s name and address) or investigation under subsection (2) commences, an investigating official must inform the person in custody that he or she does not have to say or do anything but that anything the person does say or do may be given in evidence.

28Dr Boas referred me to the ruling in the matters of the DPP v Natale.[1] And the matters of R v Contenanza[2] and Binh Viet Nguyen.[3] All cases that considered an accused person’s understanding of the right to silence, in the context of language and cultural factors.

[1] DPP v Natale (Ruling) [2018] VSC 339.

[2] R v Contenanza [1958] Tas SR 3.

[3] R v Nguyen 78 A Crim R 582.

29Dr Boas also referred me to the decision of His Honour Justice Coldrey, in the trial ruling in the matter of R v Li.[4] In that matter, upon a review of the evidence, Justice Coldrey concluded that the probabilities are that the accused did not understand the caution and associated rights detailed to him by the investigating police. His Honour was further of the view that the accused believed he had to answer the police questions. He said in reaching that conclusion, he specifically made no adverse finding in relation to the bona fides of the interviewing police.

[4] R v LI and Another [1993] 2 VR 80.

30Interestingly, in R v Li, His Honour went on to say: “the breadth of the concept of voluntariness is often misunderstood. In my view it extends to and encompasses the situation where answers are given by an accused person who lacks understanding that such questions need not be answered, and, as a result, feels compelled to participate in the interview process. In such circumstances the interview will not be voluntarily.”

31In that case, His Honour concluded that efforts were made, albeit unsuccessful, by police, to comply with their obligations under section 464 of the Crimes Act. In those circumstances, it was more appropriate to approach the matter not as a breach of that section, but upon the basis of the application of the fairness discretion.

Prosecution submissions

32Mr O’Toole filed written submissions, dated 8 June 2022, on behalf of the prosecution at the pre-trial hearing. The prosecution submitted that the onus of establishing this ground of exclusion rests upon the applicant.

33The prosecution relied upon the audio-visual recording of the record of interview itself, the evidence of Senior Constable Singh and Sgt Cove, text messages on a mobile phone on Mr Pham at the time of his arrest, and the certificate of completion from Swinburne University of Technology, for the ELICOS program English language course.

34The prosecution’s primary submission was that Mr Pham well understood his caution administered at the beginning of the interview and indicated this by immediately nodding affirmatively and responded yes when asked if he understood the caution, and by shaking his head negatively when asked if he wanted to exercise any of his rights.

35The prosecution contended that Mr Pham engaged in normal conversation with police during the interview, providing fulsome answers to non-leading questions, asking for clarification when needed.

36The prosecution relied upon Mr Pham’s initial conversation with his wife immediately following his arrest, spoken in English. The prosecution also relied upon various text messages located on Mr Pham’s mobile phone.

37The prosecution submitted that on a plain watching of the record of interview and giving due consideration to the matters relied upon by the prosecution, Mr Pham clearly had sufficient knowledge of the English language so as to understand the caution, his rights, and the questions asked of him during the interview.

38The prosecution position was that there was no unfairness to the accused, such that would lead to the exclusion of the interview.

39In oral submissions at the pre-trial argument, Mr O’Toole submitted that there were four fundamental reasons why this matter can be distinguished factually from DPP v Natale,[5] which was relied upon by the defence and where the evidence was excluded.

[5] DPP v Natale (Ruling) [2018] VSC 339.

40First, this is not a case where the accused at any time specifically advised investigators that he did not understand his rights. When Mr Pham was asked in the interview whether he understood his rights, his response is not only a yes, but it is a positive body language affirmation by nodding his head.

41The second reason is that Mr Pham did not appear, during the interview, to have any difficulty explaining his account of the events. He answered questions responsively and provided information to police.

42The third reason is that the interview itself establishes that Mr Pham had a reasonably sound understanding of the English language and was able to engage in conversation with the officers. It is not apparent, by watching the interview, that he lacks understanding of the English language.

43The fourth point was that given the answers Mr Pham gave in his record of interview, there is no room for misunderstanding in what he was seeking to convey by those answers.

44In the exchange in court, Mr O’Toole accepted that there is a difference between a person understanding simple factual questions relating to a matter that they know about, and understanding a more complex legal right. However, Mr O’Toole maintained that the immediacy of Mr Pham’s answers, and lack of hesitation, when asked whether he understood his rights, and whether he wanted to exercise them, demonstrate understanding.

45Mr O’Toole drew my attention to the evidence of Mr Pham in this hearing. Mr O’Toole submitted that there was a difference between Mr Pham’s evidence in chief and his evidence in cross examination. Mr O’Toole submitted that the best evidence is the record of interview itself because it doesn’t rely on the memory of Mr Pham almost 14 months or so after the interview. The best evidence is his immediate reaction to the question and his answer to it. Mr O’Toole submitted that police have satisfied their obligations pursuant to section 464 of the Crimes Act to inform the accused of his rights, and have also satisfied any obligation that may fall upon them to ensure that he understood those rights. The answers were emphatic, both verbally and nonverbally, which provides the basis for the interview to continue without the assistance of an interpreter.

46In the exchange in court, I asked Mr O’Toole whether, if I am satisfied that Mr Pham did not understand his right to silence, would that finding lead to the inevitable exclusion of the record of interview. Mr O’Toole was reluctant to answer comprehensively without having had an opportunity to seek instructions about that specific question, however Mr O’Toole did concede that he could not think of a scenario where the evidence would then be let in.

Analysis

47Two matters arose during the course of argument at the hearing. The first was the question of who bore the onus of establishing any matters about which I would have to be satisfied before exercising my discretion under section 90 of the Evidence Act.

48The second is the question of whether the police have an obligation to ensure that the right to silence is not just communicated to an accused person, but also that it is understood, and what the police may be required to do to discharge any such obligation.

49As to the first of these two matters, some guidance may be drawn from the decision of Justice Coldrey in the matter of R v Li,[6] that the issue central to this exclusionary argument raises a question of voluntariness.

[6] R v LI and Another [1993] 2 VR 80.

50This question, flows into the second question above, that is whether a positive obligation rests with police to ensure that an accused person understands their rights and thus who carries the onus on this issue.

51Of course, in the present case, Senior Constable Singh did ask Mr Pham whether he understood his rights, and received an affirmative reply. On the face of it, that may appear to be a sufficient basis to proceed with the interview, with the assumption that the accused man both understood his rights, and elected not to exercise them.

52On the other hand, experience of the criminal justice system demonstrates that there are some situations where police will ask a person, at the commencement of the interview, to explain back what is meant by the rights, about which they have just been informed. The person is then invited to explain what these rights mean, in their own words.

53I pause to note here that there does not appear to be any basis to say that police must do this. Observational experience suggests that police do this on some occasions but not always. It may be more frequently done where there is an obvious reason to believe that there may be some doubt about the accused person’s ability to understand the words spoken, and have confidence that a simple affirmative response can be relied upon by police to proceed further. These situations would appear to include where the accused person is a child, where they may appear to be cognitively impaired, or where English is not their first language.

54In the present case, it was acknowledged by police that it was apparent to them that English was not Mr Pham’s first language. However, police gave evidence that they believed that Mr Pham had a sufficient understanding of the English language to participate in the interview.  

55I pause to note, at this point, that whilst there may be no requirement that police ask an accused person to explain the right to silence back to police in their own words, there would appear to be certain advantages to police taking that course. The first is that if the accused person fails to explain the right properly in their own words, then further steps can be taken by police to communicate the right, possibly with the assistance of an interpreter, until the accused person can demonstrate that it is properly understood.  

56On the other hand, if an accused person, in an interview situation, readily explains a correct understanding of the right, using their own words, then there can be no doubt about the matter, and no basis for an application such as the present one.

57Given the fundamental importance of the right to silence, and the ease by which this exercise could be completed, it would seem to me that there would be significant advantages to police adopting this practice. However, as I have said, I do not see that there is a requirement that it be done. Section 464A(3) appears to impose a minimum requirement on police, and this requirement was complied with by police on this occasion. There was nothing unlawful about the police conduct.

58In any event, for present purposes, I will take the approach that the applicant bears the onus of establishing any factual matters that are relied upon in support of the application. I will also take the approach that the applicant bears the onus of satisfying me that I should exercise my discretion to exclude the evidence pursuant to section 90 of the Evidence Act.

59I also proceed on the basis that there is no positive obligation on police to take the steps described above, to have an accused person explain the rights back in their own words. I am also of the view that police on this occasion complied with the obligations imposed by section 464A(3) of the Crimes Act.

60However, I accept the evidence of Mr Pham at the pre-trial hearing. I accept his evidence that he –

(a)   In the witness box at the pre-trial hearing, did not fully understand what was meant by the words: “you do not have to say or do anything but anything you do say or do may be given in evidence”

(b)   He said: “from what I understood… I need to provide information or answer to police”

(c)   When asked whether he understood that you are allowed not to answer the questions police asked, he said: “I didn’t, I do not know about that”

(d)   About the situation in Vietnam, he said: “I do not know about the law, but in general, in Vietnam if the police ask me a question, I have to answer.”

(e)   When asked: “if you had understood that you did not have to, you are not required to answer the questions the police were asking you, would you have answered them anyway or not? Mr Pham said: “I will not answer”.

61I also accept that his evidence – that he did not remember being told of his rights – is consistent with someone who, as a non-native English speaker, did not understand what was being told to him at the time. It seems to me that it follows logically that if he did not understand the content of what he was being told – in the formal caution and rights – then when those words were repeated back to him, 14 months later in the pre-trial hearing, whether in the English language, or in Vietnamese through an interpreter, then he is unlikely to have a memory of them having been said to him in the police interview.

62In other words, I am of the view that his lack of memory of being told of the right to silence is consistent with him not understanding it at the time.

63In addition to this evidence, I have also reviewed the audio-visual recording of the interview. As the interview commences, the first question is about the time, the accused answers “yes”. The second question asks Mr Pham to state his full name and address, which he does. Then next five questions are all about the caution and rights. To those questions, he answers: “Yes” “yes”, “yes” “yes” and “no thanks”.

64I have watched Mr Pham’s manner and demeanour in answering those questions. Although the answers are immediate, in my view they are not emphatic. They are accompanied by some non-verbal nodding of the head, but in my view that is slight and not necessarily indicative of understanding. There is a rhythm and manner to those answers that in my view does not give confidence that, as a non-native English speaker, he fully understood what was being said, and what he was responding to.

65A watching of the full interview demonstrates, notwithstanding some occasions where there seemed to be a small misunderstanding as a result of accent or pronunciation, Mr Pham did understand the questions that were asked of him, and he was able to answer them responsively and make himself understood. It is clear that he had a sufficient level of English for this aspect of the interview.

66However, in my view there is a clear difference, or at least the potential for a difference, in a person’s level of English language ability, as between answering simple factual questions about matters that are self evidently relevant to why he is at the police station, and of recent experience, and having an understanding of a concept such as a right to silence. In other words, Mr Pham demonstrating a level of English language proficiency sufficient to answer the subject matter questions put to him in the interview does not necessarily mean he had an understanding of the concept of the right to silence.

67There is a complexity to the concept of the right to silence. In my view, living in, and growing up in an English speaking country, in the common law world, creates a cultural framework that should not be taken for granted or assumed in a person of non-English speaking background.

68Mr Pham gave evidence that he does not watch English language television. He does not speak English at home. He lives in a largely Vietnamese area with Vietnamese shops and he does not have English speaking friends. He gave evidence of limited experience with police in Australia, a lack of experience of police in Vietnam, but a belief that if the police ask you questions in Vietnam, you have to answer them.  

69I am not assisted in this exercise by the tendering of the English language course certificate Exhibit P3, as there is no evidence about the objective standard of that course, nor of what objective standard of English language proficiency Mr Pham was left with as a result of the completion of that course or the subsequent course he gave evidence about.

70I am not assisted by the text messages tendered in evidence as Exhibit P2 as although they may be some basis for a conclusion about general proficiency in transactional English language, in text message form, they do not assist in the enquiry about whether Mr Pham understood his right to silence at the time of the police interview.

Conclusion

71I find that the applicant has satisfied me on the balance of probabilities that he did not understand that he had the right to silence in his police interview. He did not understand that he did not have to answer the questions asked of him by police, and that if he had understood that, then he would not have answered them.

72The right to silence is a fundamental right afforded to suspects and accused persons in our criminal justice system. A lack of understanding of that right leads to a lack of opportunity to exercise it. In this case, where Mr Pham did not properly understand that he did not have to answer questions put to him by police in the interview, and then proceeded to make admissions against his interest, in my view, those admissions were made in circumstances where it would now be unfair to use them in evidence in the trial.   

73Having regard to the circumstances in which the admissions in the police interview were made on 28 May 2021, I will exercise my discretion to exclude the evidence of the interview.