Foo v The Queen

[2001] NTCCA 2

Foo v The Queen [2001] NTCCA 2

PARTIES:FOO, SIANG PIN

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  AN APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA17 of 1997

DELIVERED:  6 June 2001

HEARING DATES:  9 May 2001

JUDGMENT OF:  MILDREN, BAILEY & RILEY JJ

REPRESENTATION:

Counsel:

Appellant:D. Dalrymple

Respondent:  G. J. Bellew

Solicitors:

Appellant:Dalrymple & Associates

Respondent:  Commonwealth Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  ril0109

Number of pages:  21

ril0109

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Foo v The Queen [2001] NTCCA 2
No. CA17 of 1997

BETWEEN:

SIANG PIN FOO

Appellant

AND:

THE QUEEN

Respondent

CORAM:    MILDREN, BAILEY & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 6 June 2001)

1. On 5 September 1997 the appellant was convicted of being knowingly concerned in the importation of a commercial quantity of heroin between 20 May 1995 and 1 July 1995.  On 22 October 1997 he was sentenced to 20 years imprisonment with a non-parole period of 14 years. 

1. The appellant appealed against his conviction.  There was delay in the matter coming before this Court however it is not necessary to explore the reasons for that delay.  At the commencement of the hearing the appellant was granted leave to amend the Notice of Appeal and the grounds of appeal that were argued were as follows:

   1.The learned trial Judge erred in law in admitting into evidence the “special product” obtained from the use of a listening device to monitor conversations in Room 1427 of the Plaza Hotel on 6 June 1995.

   2.The learned trial Judge erred in law in finding that the listening device and or listening post used to obtain the “special product” on 6 June 1995 was used or set up in accordance with the provisions of s219 of the Customs Act.

   3.The learned trial Judge erred in law in finding that the “special product” obtained by the use of a listening device at the Plaza Hotel on 6 June 1995 was lawfully obtained.

   4.The learned trial Judge erred in law in upholding the public interest immunity claim made by the Northern Territory Police in relation to the divulging of information regarding the timing and circumstances of the installation of the listening device.

   5.The learned trial Judge erred in law in admitting into evidence the record of interview conducted with the appellant on 1 July 1995.

2. It was the Crown case that the heroin was brought into Australia on a vessel known as the Teh Sun 16.  The vessel arrived in Darwin Harbour on 14 June 1995.  It was inspected by Customs officials and was found to be carrying 24 tonnes of frozen fish from Indonesia for resale in Australia.  The fish was unable to be unloaded because of a failure to comply with import regulations.  The vessel was also infested with rats and was required to remain at the quarantine buoy until it had been cleared by the Quarantine Service. 

3. Prior to his arrest on 1 July 1995 there had been lengthy surveillance of the appellant.  On one occasion, in early June 1995, he travelled to Darwin and stayed in Room 1427 of the Plaza Hotel.  On that occasion he and one of his co-accused Lim Chye Siew (Lim) were observed in each other’s company in and around Darwin and they made telephone calls to each other.  They each left Darwin on 7 June 1995 with Lim travelling to Perth and the appellant to Sydney and then Singapore.  The appellant returned to Australia on 24 June 1995 arriving in Darwin on 27 June 1995 having travelled to Brisbane and Sydney in the meantime.  He booked a room at the Don Hotel at which hotel other co-accuseds Tan Seng Kiah (Tan) and Rusmanto were already staying.  Over the following days he was observed in the company of Lim.  There was surveillance evidence of meetings between Lim and Rusmanto, Lim and Tan and also Lim and Tan and a further co-accused, Tan Poh What (Poh).

4. On 30 June 1995 Tan arranged for the purchase of a dinghy from Spot-On-Marine.  He also made arrangements for the rental of a motor vehicle in Darwin.  He then drove to the Cullen Bay Marina where he met with Lim and Poh.  The three men went together to Spot-On-Marine where the dinghy was launched.  They were seen to place a number of bags in the dinghy before Tan and Lim proceeded in the dinghy to Mindil Beach.  In the meantime Poh travelled by car from Spot-On-Marine to the Diamond Beach Casino where he met with the appellant. 

5. The Crown alleged that at about 6.40 pm on the evening of 30 June 1995 Tan and Lim travelled in the dinghy to the Teh Sun 16 where Rusmanto, who was a member of the crew of the vessel,  handed them two airline bags which contained a quantity of heroin.  The heroin had been concealed in a cabin on the Teh Sun 16.  The dinghy returned to Cullen Bay Beach where Poh was waiting for them.  Video surveillance conducted at the Casino that night revealed that Poh spoke with the appellant shortly before Poh left to wait at Cullen Bay for Tan and Lim.  At Cullen Bay Lim placed the heroin in a motor vehicle which was then driven to the Frontier Hotel by Lim and Poh.  Tan moored the dinghy at the Cullen Bay Ferry Terminal and returned in a separate vehicle to his room at the Don Hotel.  Later that night all four accused attended at the Diamond Beach Casino.  Both Poh and Lim were observed meeting and speaking with the appellant at that location.

6. During the evening of 30 June 1995 the appellant remained at the Casino.  He did not take part in any of the activity related to the transfer of the heroin from the vessel to the shore. 

7. The appellant and his co-accused were arrested on the morning of 1 July 1995 in their respective motel rooms.  Shortly after their arrest police seized the heroin from the motor vehicle parked at the Frontier Hotel.  That vehicle had been under police surveillance during the night of 30 June and the morning of 1 July 1995. 

8. The total weight of the heroin seized was 20.97 kilograms and it was of an approximate purity of 75 percent.

9. Apart from the surveillance evidence the Crown case against the appellant relied upon a conversation he had with Lim on 6 June 1995.  That conversation was recorded in Room 1427 of the Plaza Hotel which the appellant was then occupying.  The conversation was recorded by means of a listening device with a listening post having been established in an adjacent room.  In the course of the conversation the appellant and Lim spoke about the arrival of a boat, folding things in wax paper, X-rays and travelling by aeroplane.  They discussed their travel arrangements and their future contact with each other including the hotels at which they would stay.  The relevance of the discussion regarding the arrival of a vessel and the folding of things in wax paper was that there was other evidence in the case to the effect that the heroin did arrive on a boat, namely the Teh Sun 16, and that the heroin was wrapped in wax paper.

10. The admissibility of the transcript of the conversation of 6 June 1995 was disputed by the appellant. A preliminary hearing under s 26L of the Evidence Act was conducted before the learned trial Judge during which a challenge to the admissibility of the evidence of the conversation proceeded on two broad bases namely:

    1.that the warrant authorising the use of the listening device was invalid on its face; and

    2.that those who installed the listening device did so without being properly authorised for that purpose.

11. On 6 May 1997 her Honour ruled that there was no invalidity on the face of the warrant.  That decision has not been challenged.  On 15 May 1997 her Honour ruled that the evidence of the conversation was admissible and her reasons for so doing were delivered on 23 July 1998.  This decision is the subject of the first three grounds of appeal.  The fourth ground of appeal challenges the decision of the learned trial Judge in upholding a public interest immunity claim made by Northern Territory police relating to a particular circumstance of the installation of the listening device.

    Installation and Use of the Listening Device

12. On or about 4 June 1995 police ascertained that the appellant was the occupier of room 1427 at the Plaza Hotel.  They arranged to occupy room 1425 which is adjacent to room 1427 for the purposes of establishing a listening post.  On the following day an application was made to a Federal Court Judge in Sydney for authorisation to use a listening device under Division 1A of Part XII of the Customs Act.  A warrant was granted authorising the use of a listening device in relation to room 1427 Plaza Hotel 32 Mitchell Street Darwin.  The authorisation was to “use a listening device” and was expressed to be subject to the restriction “that installation, use, and removal of any device be carried out under the direction of an officer of or above the rank of Sergeant”.  The warrant also authorised entry into the room for the purpose of installing, maintaining, using or recovering the listening device.  The warrant was issued under s 219B(7) of that Act.

13. Federal Agent Robert Taylor of the Australian Federal Police was advised at approximately 5.30pm on 5 June 1995 that the warrant had issued and he received a facsimile copy of the warrant shortly thereafter.  He then directed Constable McDonagh and Constable Griggs from the Northern Territory Police Technical Unit to install a listening device.  At about the same time he appointed Federal Agent White of the Australian Federal Police to use the device installed in order to monitor and record conversations.  Federal Agent White was a person duly authorised to exercise authority conferred by the warrant.  Constables McDonagh and Griggs were not so authorised. 

14. Federal Agent Taylor was in attendance at the time the device was installed. Although he did not actively participate in that process, he gave evidence that the installation was carried out under his direction.  It was his evidence that Constable McDonagh, who was the officer who installed the device, was not required to be authorised to do so provided he carried out the installation under the direction of an authorised officer, namely himself.  Neither Constable McDonagh nor Constable Griggs played any part in the monitoring or recording of conversations with the assistance of the device.  Federal Agent White activated the device which enabled any sound in room 1427 to be recorded.  The conversation between the appellant and Lim was subsequently recorded. 

15. The first submission made by the appellant was to the effect that Constable McDonagh and Constable Griggs were not authorised officers within the meaning of s 219D of the Customs Act and, therefore, the installation of the listening device by those officers was unlawful and the evidence obtained by means of the listening device should have been excluded by the trial Judge in the exercise of her discretion.

16. Section 219B(1) of the Customs Act provides that it is unlawful for an official of a Commonwealth law enforcement agency to use for the purposes of narcotics enquiries a listening device “for the purpose of listening to or recording words while they are being spoken by a person”.  The section goes on to provide exceptions to that provision including where the official acts in accordance with a warrant issued to the agency under Division 1A of Part XII of the Act.  The section then provides for the making of applications to a Judge or nominated AAT member for the issue of such a warrant.

17. Section 219B(7) of the Customs Act is in the following terms:

    “Where, upon application being made to a Judge or nominated AAT member for the issue of a warrant to a Commonwealth law enforcement agency under this section authorizing the use of a listening device in relation to particular premises, the Judge or nominated AAT member is satisfied, by information on oath, that:

    (a)there are reasonable grounds for suspecting that the premises have been, or are likely to be, used in connection with the commission of a narcotics offence; and

    (b)the use by officials of the agency of a listening device to listen to or record words spoken by or to persons in those premises will, or is likely to, assist officials of the agency in, or in connection with, inquiries that are being made in relation to the use, or likely use, of the premises in connection with the commission of a narcotics offence;

    the Judge or nominated AAT member may, by warrant under his hand in accordance with the prescribed form, authorize officials of the agency, subject to any conditions or restrictions that he sees fit to specify in the warrant, to use a listening device for the purpose of listening to or recording words spoken by or to any person while the person is in those premises, and such a warrant may authorize officials of the agency to enter those premises for the purpose of installing, maintaining, using or recovering a listening device or a part of a listening device.”

18. Section 219D is as follows:

    “(1)The authority conferred by a warrant issued to a Commonwealth law enforcement agency under section 219B shall be exercised only by the chief officer of the agency or by other officials of the agency approved, for the purposes of that warrant or of warrants issued under that section, by the chief officer or by an authorised official of the agency.

    (2)In subsection (1), a reference to an authorised official of a Commonwealth law enforcement agency is a reference to an official of the agency appointed by the chief officer of the agency, by writing, to be an authorised official of the agency for the purposes of this section.”

19. The warrant issued in this matter was in the following terms:

    “I hereby authorise you to use a listening device within the meaning of that Division for the purposes of listening to or recording words spoken by or to any person while the person is in those premises subject to the following conditions or restrictions namely:

    that installation, use, and removal of any device be carried out under the direction of an officer of or above the rank of Sergeant.

    And I further authorise you to enter those premises, at any time of the day or night, for the purpose of installing, maintaining, using or recovering such a listening device or a part of such a listening device without permission first being sought or demand first being made.”

20. The primary authority conferred by the warrant is to “use” a listening device for the purposes of listening to or recording words.  The obtaining of the warrant was for the purpose of bringing the activities of the Federal Agents within the exceptions provided for in s 219B(1) of the Act.  By virtue of s 219D that authority could be exercised only by the chief officer of the agency or by other approved officials. Federal Agent White fell within that description.  Federal Agent White was the person who used the listening device and he was properly authorised to carry out the function.

21. The condition imposed by the Judge of the Federal Court in the warrant was that the installation, use, and removal of any device be carried out under the direction of an officer of or above the rank of Sergeant.  There is no dispute that the installation was carried out under the direction of Federal Agent Taylor who satisfied the requirement as to rank. 

22. The legislation does not require authorisation to install a listening device but rather requires authorisation for the use of the device so installed.  Section 219B(7) also enables a warrant to issue authorising entry to premises but again that does not relate to authorising the actual installation of the listening device.  It makes what otherwise might be an unlawful entry to premises an authorised entry.  It is the “use” of the device not its “installation” for which a person must be authorised. 

23. It follows from the above that the involvement of Constables McDonagh and Griggs in the installation of the listening device did not have to be authorised.  The terms of the legislation and the terms of the warrant were satisfied by the installation being carried out under the direction of Federal Agent Taylor.  Her Honour was correct in holding that those who installed the listening device were not required to have authority conferred on them under s 219D of the Customs Act.

    The Timing of the Installation

24. It was submitted by the appellant that on one view of the evidence the installation of the listening device occurred before the time at which the warrant issued.  It was submitted that the warrant issued at approximately 5.30pm and that the evidence of Constable McDonagh was to the effect that he had left the Plaza Hotel no later than 3.40pm on that day.  It was submitted that the learned trial Judge “should have found that the listening device was installed and used prior to the issue of the warrant, that such installation and use was unlawful, and that any use of the listening device after the issue of the warrant was so tainted by the earlier illegal behaviour that serious consideration needed to be given to exercising a discretion to exclude the special product generated from the subsequent use.”

25. A review of the evidence reveals that there was inconsistency between the evidence of Constable McDonagh and that of Federal Agent Taylor in relation to this matter.  The evidence of Constable McDonagh to the effect that he had left the Plaza Hotel no later than 3.40pm on the day the listening device was installed was not something that he remembered but rather resulted from a process of reconstruction arising from an entry in his diary indicating that he had ceased duty at 4pm on that day.  This evidence is to be contrasted with that of Federal Agent Taylor who denied that Constable McDonagh had left the Plaza Hotel at around 3.40pm.  He expressly denied that the installation of the listening device proceeded before the warrant was issued. There were competing versions of events placed before the learned trial Judge.

26. The appellant invited her Honour to exercise her discretion to exclude evidence based upon the alleged illegality of the conduct of the officers concerned.  The onus in that regard rested upon the appellant on the balance of probabilities: R v Eddleston (1990) 51 A Crim R 397 at 410. Her Honour ruled on the matter on 12 August 1997 when she said:

    “The application was in two parts.  Firstly, that the evidence was unlawfully obtained, in that the listening device was installed prior to the obtaining of a warrant authorising the installation of the listening device.  I am satisfied, on the balance of probabilities, that the evidence on the tape, Exhibit P42, was not unlawfully obtained.  I do not consider there is a reason to exercise a discretion to exclude the tape.”

27. It follows from that finding that her Honour did not accept that the appellant had discharged the onus that rested upon him.  That conclusion was open on the evidence.  Her Honour accepted the evidence of Federal Agent Taylor over the evidence of Constable McDonagh in this regard and the appellant failed to discharge the evidentiary onus of establishing the alleged illegality.  That being so there was no reason for her Honour to consider the exercise of a discretion to exclude the evidence.

Public Interest Immunity

1. In the course of the cross-examination of Constable McDonagh at the pre-trial voire dire, counsel for the appellant asked questions directed to whether either Constable McDonagh or Constable Griggs had entered the room of the appellant (room 1427) at the time the listening device was installed.  Constable McDonagh declined to answer that question and claimed privilege on the ground of public interest immunity.  The matter was then stood down to enable argument to be presented.  Following the argument her Honour ruled that counsel for the appellant had a legitimate forensic purpose for asking such questions.  There is no challenge to that finding.  Thereafter a claim for privilege on the ground of public interest immunity was made in an affidavit of Richard David Moore the Deputy Commissioner of Police for the Northern Territory.  Her Honour received two confidential affidavits in support of that claim.  On 12 May 1997 her Honour ruled as follows:

   “In balancing the two competing interests – that is the claim for privilege on the ground of public interest immunity and the other ground of public interest in the administration of justice – I have come to the conclusion that the balance is in favour of the claim for public interest immunity.  Accordingly, I rule that Constable McDonagh is not required to answer the questions which were specified in submissions and that he is entitled to claim privilege on the grounds of public interest immunity.”

1. At the request of both counsel the members of this Court have taken the opportunity to read the affidavits provided in confidence to the learned trial Judge. 

2. The basis of the claim as identified by Deputy Commissioner Moore was for public interest immunity centred upon the prospect that such evidence would “reveal police methodology and may impede or frustrate future police activities”.  It is clear that a claim for privilege based on public interest immunity may arise out of the need to protect police methods of operation.  In considering such a claim the court is required to consider two conflicting aspects of the public interest and to decide which of those aspects is to predominate.  The deliberation necessarily involves a balancing exercise as discussed in Sankey v Whitlam (1978) 142 CLR 1 at 39; Conway v Rimmer (1968) AC 910; and Alister v R (1983-1984) 154 CLR 404. In this case her Honour expressly undertook that balancing exercise. In our view no error occurred in the process.

   The Record of Interview

3. It is the submission of the appellant that the learned trial Judge erred in admitting into evidence the record of interview conducted with the appellant on 1 July 1995.  At the hearing the prosecution relied upon what was said by the appellant in that record of interview as including lies that demonstrated a consciousness of guilt.

4. Her Honour found that the appellant was arrested at 7.25am on 1 July 1995.  His record of interview was completed at 3.42pm on that day providing a total period between the time of arrest and the completion of the interview of 8 hours and 17 minutes.  The appellant submitted that the record of interview was conducted in breach of the requirements of s23C of the Crimes Act and her Honour ought to have excluded it in the exercise of her discretion.

5. Her Honour considered the reasons for the delay in commencing and completing the record of interview and determined that 2 hours of that time should be disregarded for the purposes of s 23C(4) of the Crimes Act.  There is no challenge to her findings in that regard.  In relation to the remaining 2 hours and 17 minutes in excess of the investigation period allowed for in s 23C(4) her Honour found that this was made up of time taken for the appellant to observe the search of his hotel room; for the appellant, at his request, to shower and pack before being taken to the Berrimah Police Centre; for a period of delay whilst the party awaited the arrival of an interpreter when, because of a misunderstanding, the police did not know the interpreter was already in the building; and for some other short delays occasioned by difficulties in obtaining tapes for the record of interview.  Her Honour concluded:

   “In summary, the delays that did occur which are not covered by s 23C(7) were either at the accused’s request, or whilst he observed a search, were due to a genuine break down in communication between police officers at Berrimah Police Centre, or because some matters of detail in commencing the record of interview were prolonged.”

6. Her Honour went on to conclude that she would not exclude any part of the record of interview because the provisions of s 23C(4) of the Crimes Act were not complied with.  She noted that no unfairness to the appellant had been demonstrated.

7. The submission made on behalf of the appellant was that the exercise of the discretion by her Honour miscarried due to a failure on her part to have regard to public policy considerations as distinct from the issue of fairness.

8. As was observed recently by this Court in Tan Seng Kiah v The Queen (2001) NTCCA 1 there is no statutory sanction for a breach of s 23C of the Crimes Act.  The Act says nothing as to the impact upon the admissibility of evidence obtained in circumstances where that section has been breached.  However it is clear that when a person is arrested and not dealt with in accordance with the law the subsequent detention is unlawful and statements or admissions of the arrested person may be excluded in the exercise of a discretion.  The nature of that discretion has been the subject of discussion in the High Court in R v Swaffield (1997) 192 CLR 159 where it was observed by Toohey, Gaudron and Gummow JJ (at 189-190) that “the line between unfairness and policy may become blurred”. Their Honours (at 194-195) suggested that an appropriate approach is:

   “…to think of admissibility as turning first on the question of voluntariness, next on exclusion based on considerations of reliability and finally on an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to the contemporary community standards.”

9. In this matter there was no submission that there was any lack of voluntariness on the part of the appellant.  It was not submitted that the material contained in the record of interview was in any way unreliable.  Given the circumstances in which the investigation period was exceeded there could be no suggestion of unfairness to the appellant arising out of the circumstances of the interview.  On her Honour’s findings, the police ought to have sought an extension under s 26D by no later than 1.25pm.  The relevant passages of the record of interview upon which the Crown relied at the trial occurred close to or shortly after 1.49pm, ie about 20 to 30 minutes after the time limited by s 23C(4) had expired.  There was no evidence to suggest that, had an application been made for an extension at that time, the extension would not have been granted.  In fact an extension was applied for and granted by a magistrate at some time between 2.47pm and 3.21pm.  When the record of interview resumed at 3.21pm the appellant was told that the interview had been suspended to obtain a magistrate’s permission for the interview to continue.  The appellant was asked if he was still prepared to continue with the interview and he said he was.  The appellant had not been told that he had the right to make any representations to the magistrate, as     required by s 23E(2).  However the appellant did not give evidence either during the voir dire hearing or during the trial that had he been told of his right to make representations to the magistrate he would have opposed any extension of time, or that had the application been made earlier, he would have exercised his right of silence.  Such material as was before the learned trial Judge suggests that nothing would have altered.  There was therefore no unfairness because had things been done lawfully, no incriminating admissions might have been made: c.f. Duke v The Queen (1989) 180 CLR 508 at 513 per Brennan J.

10. Finally the conduct of the police in proceeding as they did was not such as would warrant the exclusion of the evidence in this case.  The police were not cross-examined with a view to showing that they deliberately set out to breach the provisions of s 26C or s 26E of the Crimes Act, and there is simply no evidence upon which it is open to infer that this was so.

11. It was far from clear that the appellant was correct in the submission that her Honour did not consider both issues of fairness and whether the obtaining of a conviction on the basis of the evidence is bought at a price which is unacceptable having regard to contemporary community standards.  Whether or not her Honour did consider these matters it is clear that the evidence should not have been excluded in the proper exercise of her discretion.

12. In addition it was the submission of the appellant that the evidence contained in the record of interview ought to be excluded because the interviewing police failed to comply with s 23P of the Crimes Act.  That section requires that a person such as the appellant in this case must be informed of his or her rights to communicate with or attempt to communicate with the Consular office of the country of which the person is a citizen and that questioning will be deferred to allow a reasonable time for the person to make or attempt to make the communication.  It was the submission of the appellant that a consideration of the transcript of the record of interview reveals that there was a clear request by the appellant to contact the Singapore Consulate.  The interviewing police failed to facilitate the request and failed to defer further questioning.  A review of the evidence does not support that submission.

13. In her reasons for decision her Honour noted that prior to the conducting of the record of interview there was a taped conversation in English where the appellant “demonstrated a clear understanding of his rights.”  An interpreter was then located and was present for the relevant parts of the record of interview.  Early in the record the appellant was advised that he had the right to contact his Consulate or Embassy and he was asked if he would like to contact or attempt to contact his Consulate then. This was followed by a dialogue in which the appellant indicated that he would like to contact the Consulate but enquired how that could occur at that time.  He was then informed that the police were unsure, but he had the right to do it “now”, and that they would try to contact them if he wished, but they were unsure if they would be able to.  This was on a Saturday.  He then asked, if they could not be contacted now, could they be contacted on Monday, and he was told that he would be able to contact the Consulate on Monday “but if you want to contact them now we will try and contact them now by telephone”.  He then asked whether he could contact the Consulate from the court or from “here” on Monday and the following exchange took place:

    “Question:We can make arrangements for you to contact the Consulate from here Monday and probably if you wish – if you wish – we can try and contact the Consulate some time over this weekend or today after the interview if you wish.  If you wish to continue with the interview – and it’s entirely up to you – we can attempt to contact the Consulate at the completion of the interview if you wish to do it that way.

    Answer:He said, it’s all right.  He’s agree.  He agree that we carry on with this interview.”

14. Her Honour dealt with that issue as follows:

    “At the commencement of the record of interview, Mr Foo was informed of his rights to consult a lawyer, to contact the Consulate and to contact his wife.  All three issues became somewhat confused because Mr Foo countered with a number of questions and sought advice from police as to what he should do.  However, after viewing the video of the record of interview, I am satisfied Mr Foo was informed of his rights in respect of all three matters and was given the opportunity to exercise his rights in respect of each.  He chose not to exercise such rights prior to the interview proceeding.”

15. In our view her Honour was correct in so deciding.  There was clear advice to the appellant of his right to contact the Consulate and offers were made to assist him in that regard.  Although there may have been some confusion arising from the way in which the appellant responded to that advice, at the conclusion of the exchange it was clear that he had been made aware of his rights and had chosen to proceed with the interview.  There was no breach of s 23P of the Crimes Act.

16. The situation of the appellant in this matter is to be distinguished from that of the appellant in Tan Seng Kiahv The Queen (supra).  In that case there had been a clear request by the appellant for access to a Consular official and for access to a legal practitioner, neither of which was satisfied.  The requests were made on Saturday 1 July 1995 and were withdrawn almost 24 hours later.  In that time police failed to make any efforts to contact a Consular official and made only desultory efforts to contact a legal practitioner.  That is not what occurred in the present case.

17. In all the circumstances the appeal is dismissed.

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