Director of Public Prosecutions v Trung Dong Nguyen (Ruling)

[2016] VSC 506

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2016 0025

DIRECTOR OF PUBLIC PROSECUTIONS

v  

TRUNG DONG NGUYEN

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JUDGE:	COGHLAN JA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2016
DATE OF RULING:	9 August 2016
CASE MAY BE CITED AS:	DPP v Trung Dong Nguyen (Ruling)
MEDIUM NEUTRAL CITATION:	[2016] VSC 506

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CRIMINAL LAW – Admissibility of evidence – Undercover officer deployed in circumstances where accused already in custody – s 90 Evidence Act 2008 –R v Swaffield; Pavic v R (1998) 192 CLR 159.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S Borg	Office of Public Prosecutions
For the Accused	Mr A Jackson	Haines & Polites Lawyers

HIS HONOUR:

1. The accused, Trung Dong Nguyen, is charged with the murder of Phuc Minh Tran. The evidence against him is largely contained in various interviews with police. Originally the accused had objected to the tender in evidence of three conversations between him and various police officers, which included conversations with an undercover officer, on the basis that it would be unfair pursuant to s 90 of the Evidence Act 2008 (‘the Act’).

1. In the event, the prosecutor announced that the first conversation would not be led in evidence.

1. The accused at first conceded that the other conversations should be lead in evidence.  I raised with the parties concerns that I had about the use of the undercover officer in this case.  The application for exclusion was then renewed.

1. When the accused had been released from hospital on 20 August 2015 he was taken to the police station and placed in a cell.  There was an undercover police officer in the cell.  The accused and the undercover officer had a conversation, some of which was in Vietnamese, which was recorded.  After that the accused was formally interviewed by way of record of interview, and this happened at approximately 6.00pm in the evening.  Efforts were made at this time to contact a solicitor nominated by the accused, but the solicitor did not answer the phone and the interview proceeded regardless.  The following exchange took place between the interviewing officer and the accused in this regard:

OFFICER:So Trung, the – the recording’s already going. All right. I suppose I’ll start by explaining to you again what I’ve already explained to you. So I’m – I’m obviously gonna ask you about the death of Phuc Minh Tran. O.K. And because of that, because I’m going to ask you what happened, you’ve got your rights. Yeah? Again I’ll reinforce what they are. I know you understand and you told me at the hospital. So you’re under arrest in relation to that, which means you don’t have to say or do anything but anything you do say or do can be recorded and given in evidence. Do you understand that?

(NO AUDIBLE REPLY)

OFFICER:Yeah? Just a – a verbal answer, mate for the recording. Do you understand your rights?

ACCUSED:Yeah.

OFFICER:Yes, yeah. Can you tell me in your words what – what that means?

ACCUSED:That I don’t have to say anything or do anything that I don’t want to.

OFFICER:That’s exactly right, mate. So if I ask you a question and you don’t want to answer it, do you have to?

(NO AUDIBLE REPLY)

OFFICER:No? And what happens if you do? Do you understand it’s being recorded?

ACCUSED: Yeah.

OFFICER:Yeah, all right. The other things that I’ll explain to you again. You can contact a friend or relative to let them know where you are. It’s pretty straightforward. You can contact a solicitor or a legal practitioner and you can contact the consular office of the country of which you are a citizen, if you are not a citizen or a permanent resident in Australia. Do you understand those three things?

ACCUSED:Yes.

OFFICER:Yeah. Did you want to do any of those things?

ACCUSED:No.

OFFICER:No. Now, when we got back to the police station you said you did and we gave you the phone to call a couple of solicitors. What happened there?

ACCUSED:It’s out of office hours.

OFFICER:Out of office hours, yeah. And at the end of it, I told you that we can try some more if you like. And you said, “don’t worry about it.” And what did I explain to you then? That if that changes at all, you let me know and we’ll go and do that. O.K. Do you understand – yeah - - -

ACCUSED:Yeah.

OFFICER: You’re happy with that? Do you want to do any of those things before we go on?

ACCUSED: I – I tried the lawyer - - -

OFFICER:Yeah.

ACCUSED: Still they – still say, “is out of office hours, I’m not available right now.”

OFFICER:Yeah.

ACCUSED: “Give me a call back.”

OFFICER:Would you like to try again?

ACCUSED:Oh, I don’t know.

OFFICER:Well, it’s up to you. It’s not up to me. O.K.? If at any time you say, “I want to try again”, we’ll try and again. O.K. Do you understand?

ACCUSED:Yes.

1. After the formal interview the accused had a further conversation with the undercover officer. 

1. I had taken the view that I could not see the justification for use of the undercover officer.  It was submitted that the undercover officer was used because this was a case where the version of events given by the accused would be critical.  It was said the undercover officer could be used to assess the general veracity of what was said in the record of interview.  That was so because there was little other evidence about the circumstances of Tran’s death.  In particular, there were no eyewitnesses.  I do not regard that as justification for the course adopted.

1. In Victoria, the dealing with custody and investigation of persons is governed by Div 30A of Pt III of the Crimes Act 1958 (‘the Crimes Act’).  That Division came into the Crimes Act in 1988 after the High Court[1] decided that detention of suspects for interviews was unlawful.  The Division provided a statutory “trade off” between allowing for the detention of suspects for a reasonable time on the one hand, and the need to record the giving of warnings and interviews on the other.  The responsibilities set out in the various sections fall upon investigating officials.  “Investigating official” is defined in s 464(2) as follows:

investigating official means a police officer or a person appointed by or under an Act (other than a police officer or person who is engaged in covert investigations under the orders of a superior) whose functions or duties include functions or duties in respect of the prevention or investigation of offences.

[1]Cleland v The Queen (1982) 151 CLR 1.

1. It is clear enough that the undercover officer did not warn the accused and by implication that he did not do so because, as an undercover officer, he was not an “investigating official”.  The “covert investigation” he was involved in in this case was one designed to test the veracity of the accused in what he said to the police.  That is, his role was bound up with the investigation of the alleged murder of Phuc Minh Tran.  I do not accept that he can truly be characterised as a “police officer who is engaged in a covert investigation”, in particular because the investigation was already in progress.  If the practice followed here was acceptable there would be very little or no limit to the circumstances in which a “covert investigation” could be carried out.

1. What is central in this case is the fact that the accused was in custody for the purpose of being interviewed in relation to the offence.  In these circumstances, it is difficult to see how it could be said that a “covert investigation” was being carried out, as even the accused knew full well that the investigation was being carried out and that he was a suspect in it.  This is not to say that this circumstance is absolutely determinative of the matter, but there would need to be extreme or extraordinary circumstances which justified the course adopted here. 

1. In light of the above I find that, given the circumstances in which the evidence was obtained by the undercover officer, it would be unfair to use that evidence against the accused pursuant to s 90 of the Act. Although the issue was not raised in argument, I would also be inclined to adopt the view that the evidence could be said to have been improperly obtained within the meaning of s 138 of the Act.[2]

   [2]See R v Swaffield; Pavic v R (1998) 192 CLR 159, 193-5 where the relevant principles are discussed, including reference to s 90 of the Evidence Act 1995 (NSW).

1. Since the impugned evidence both proceeded and follows what was said in the record of interview, the question arises as to whether or not I also ought to exclude the record of interview pursuant to s 90 of the Act.

1. It was not in dispute that the informant did not know what had been said to the undercover officer until he had completed a reasonable portion of the interview.  In  those circumstances I regard the record of interview as standing in its own right. 

1. Although I find that the informant might have taken more steps to do something about getting the accused legal advice, particularly given the time of day at which the interview was conducted and the fact the interview could have been delayed until the next day, it seems to me that, upon a fair reading of what occurred, the accused did know what his rights were and chose to proceed with the interview.

1. Accordingly, I would admit the record of interview.  If the accused is of the view that in those circumstances he would prefer to have the conversation with the undercover officer in evidence that is a matter for him, and I will hear the parties in this regard.

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