Luo v The Queen - [2020] WASCA 184

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   LUO -v- THE QUEEN [2020] WASCA 184
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   20 JULY 2020
DELIVERED          :   6 NOVEMBER 2020
FILE NO/S:   CACR 140 of 2018
BETWEEN:   JIE LUO
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   FIANNACA J
Citation: THE QUEEN v LUO [2018] WASC 226
File Number            :   INS 62 of 2017

Catchwords:

Criminal law - Appeal against conviction - Evidence - Admissibility of evidence of admissions by an accused - Whether admissions can be said to be inadmissible on the ground that they were not voluntarily made because the accused did not understand the police caution - Whether discretion to exclude voluntary admissions should be exercised on fairness grounds

Legislation:

Crimes Act 1914 (Cth), s 23F, s 23G, s 23N, s 23P, s 23S

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	A E Eyers & K Kumar
Respondent	:	D L Renton & J A Johnston

Solicitors:

Appellant	:	Anthony Eyers
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

AB v R [2014] NSWCCA 339
Attorney General (NSW) v Jackson (1906) 3 CLR 730
Bunning v Cross (1978) 141 CLR 54
Clarke v The Queen [2015] NSWCCA 232; (2015) 254 A Crim R 150
de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291
Em v The Queen [2006] NSWCCA 336
EYO v The State of Western Australia [2019] WASCA 129
Heiss v The Queen (1992) 2 NTLR 150
Hordern v The Queen [2019] NSWCCA 138
House v The King (1936) 55 CLR 499
Kelly v The State of Western Australia [2017] WASCA 221
McDermott v The King (1948) 76 CLR 501
R v Anunga (1976) 11 ALR 412
R v Azar (1991) 56 A Crim R 414
R v Ireland (1970) 126 CLR 321
R v Kyriakou (1987) 29 A Crim R 50
R v O'Dempsey [2018] QCA 364
R v O'Donoghue (1988) 34 A Crim R 397
R v Swaffield (1998) 192 CLR 159
TH v The Queen [2019] NSWCCA 184
The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Willis v The Queen [2016] VSCA 176; (2016) 261 A Crim R 151

JUDGMENT OF THE COURT:

Summary

On 14 December 2017, the appellant was convicted of one count of importing a commercial quantity of a border controlled drug, namely methamphetamine. On 28 June 2018, the appellant was sentenced to 23 years' imprisonment, with a 15 year non-parole period.
The offence was allegedly committed on 1 May 2016, when at least 182.41 kg (145.6 kg pure weight) of methamphetamine was landed on the Western Australian coast by a tender launched from a fishing vessel. The drugs were collected by members of a criminal syndicate at the landing site, and driven to the Perth metropolitan area. 182 kg of methamphetamine from the fishing vessel was subsequently located and seized by police from two locations in Cannington and Embleton. The appellant was one of eight persons found on the fishing vessel when it was boarded by police and Border Force officers on the evening of 1 May 2016, after the drugs had been landed early that morning.
Thirteen accused persons, including the appellant, were charged with and tried on the importation offence. The appellant, one other person on the fishing vessel (Mr Law) and five persons who were alleged to have operated from land were convicted of the importation offence. Six of the persons on the fishing vessel when it was boarded were acquitted.
The appellant now appeals against his conviction on two grounds. The grounds challenge the admission into evidence at his trial of recorded interviews police conducted with the appellant on 3 and 25 May 2016. Ground 1 in effect contends that the trial judge erred in ruling that the appellant's admissions during the recorded interviews were voluntarily given and therefore admissible. Ground 3 in effect challenges the trial judge's failure to exercise in the appellant's favour his residual discretion to exclude the recorded interviews.[1] The application for leave to appeal on those grounds was referred to the hearing of the appeal.
[1] Ground 2, which in effect contended that the trial judge erred in ruling that s 23G of the Crimes Act 1914 (Cth) was the only provision of that Act which was relevant to the objection to the admission of the recorded interviews, was abandoned at the hearing of the appeal: see Appeal ts 2.
For the following reasons, neither of those grounds of appeal are reasonably arguable, leave to appeal should be refused and the appeal must be dismissed.

The recorded interviews

The first interview with the appellant was conducted at Geraldton Police Station on 3 May 2016. Federal Agent Bailey, Senior Constable Mayo and the appellant were present in the interview room. Two Cantonese interpreters also participated in the interview via telephone at different times. An audio recording of the interview was made.
The second interview was conducted at Northam Police Station on 25 May 2016. Federal Agent Gallardo, AFP Special Member Jorgensen and the appellant were present in the interview room. Again, two Cantonese interpreters participated in the interview via telephone at different times. An audio-visual recording of the interview was made.
The recordings and edited transcripts of the interviews were tendered at the pre-trial hearing to determine the admissibility of the interviews and at trial. At some points, the edited transcripts showed annotated interpretations of what was being said in Cantonese which were agreed by the parties. That is, the annotations show variations between the interpretation given by the Cantonese interpreter present at the interview and the interpretation made by a third interpreter agreed between the parties.
The edited transcripts of the interviews conducted on 3 and 25 May 2016 were trial exhibits 150B and 152B respectively. Edited transcripts of the interviews conducted on 3 and 25 May 2016, marked exhibits 5B and 5C, were also tendered in evidence at the pre-trial hearing at which the objection to admissibility was argued. We note that exhibits 5B and 5C contain additional annotations from the third interpreter which do not appear on exhibits 150B and 152B. In the summaries given below, reference will be made to the trial exhibits. Where there is a material difference between the interpretations of the interpreter present at the interview and the independent interpreter, the annotation of the independent interpreter will be noted, italicised in square brackets.[2]
[2] The document said to be exhibit 5C at blue and green appeal book, p 159 - 184 is not actually exhibit 5C. An agreed copy of exhibit 5C was provided to the court upon request on 19 August 2020.
The fact that the interpreters were attending by telephone created some difficulties in the interviews. Sometimes the interpreter had difficulty in understanding what was being said in the interview room, and on some occasions there appears to have been some breaks in the audio link.
It appears that the appellant did not speak any English at the time of the interviews, and all of the communications were effected through an interpreter.

Recorded interview on 3 May 2016

The first recorded interview began at 9.42 am on 3 May 2016. The appellant indicated that his preference was to be called 'Kit'. Federal Agent Bailey explained that the interview was being recorded, and that the appellant would be provided with a copy of the DVD and a transcript if one was prepared. The appellant indicated that he understood this.[3]
[3] Exhibit 150B, Q8 - Q13.
Federal Agent Bailey explained that police were making inquiries into whether the appellant imported a commercial quantity of a border controlled drug into Australia. The appellant indicated that he did not understand this. Federal Agent Bailey indicated that he would give the appellant 'his rights and his caution' before proceeding further. The caution was given in the following manner:
Q19.Okay. So I must caution you that you do not have to say or do anything but anything that you do say or do may be used as evidence.
[I tell you, the caution tells you, all he says about you, you don't have to answer him or do anything. Whatever you do say will be used as court evidence.]
ATHE INTERPRETER (Answering on behalf of interviewee): Okay, I understand.
Q20.Okay. Do you clearly understand this caution?
[Do you understand this, this caution?]
AYes, I know.
Q21.Okay. There's three components to the caution, or three pieces. I just want to break them down to ensure we have covered off this. So can - - -
[There are three points. I will focus on the three points].
AOkay.
Q22.Do you understand that you don't have to talk to me?
[Do you understand there is no need for you to talk?]
AYes, I understand.
[Oh I understand]
Q23.Do you understand that I can't force you to do anything?
AI don't understand this one.
There was then some difficulty with the phone line to the interpreter. Once that was resolved, the cautioning continued as follows:
Q25.Okay. If I ask him to draw a picture of his house he doesn't have to do that if he doesn't want to. I can't force him to do things.
AOkay.
Q26.Okay. And if I do ask him to draw a picture or I do ask my a question and he answers me, if he gives me information then I can use that as evidence. Does he understand that?
AYes, I understand.
Q27.Okay. This caution also applies to any questions that Senior Constable MAYO may ask. Do you understand?
AOkay.
Federal Agent Bailey then advised the appellant that he had the right to communicate with or attempt to communicate with a friend or relative to let them know his whereabouts. The appellant was then advised that he had a right to communicate or attempt to communicate with a lawyer and arrange for a lawyer of his choice to be present during questioning. He indicated that he wished to speak to a lawyer, and was advised that he would be given a phone to contact Legal Aid who could provide the appellant with a basic legal service over the phone for free. The interview was suspended from 9.55 am to 10.39 am for that purpose.[4]
[4] Exhibit 150B, page 5054.
When the interview recommenced, the following exchange occurred:
Q41. Kit, I wish to remind you that the caution I gave you earlier, that you do not have to say or do anything but anything that you do say or do may be used as evidence, still applies.
[He is telling you the caution he said before (indistinct).]
A Yeah, okay.
Q42. So you understand the caution, that you don't have to talk to me if you don't want to?
[Do you understand the caution (indistinct).]
A Yes.
[Yes clear.]
The appellant had been unable to contact a lawyer during the suspension of the interview, and it appeared that no lawyer from Legal Aid was available. The appellant indicated that he was happy to proceed without a lawyer. He indicated that he was a citizen of China but did not want to exercise his right to contact the Chinese consular office at that stage. He was satisfied that he had been given an interpreter, which was his right.[5]
[5] Exhibit 150B, Q47 - Q62.
The appellant was provided with a document to read, written in traditional and simplified Cantonese. He indicated that he could read the simplified Cantonese.[6] The document was not in evidence at first instance.
[6] Exhibit 150B, Q61 - Q63.
The appellant indicated that he lived in Guangdong province in China and was then 49 years old. He worked on the ocean fishing, and identified the fishing vessel on which he was working. He said that this was his first time aboard that ship, and that he would sometimes steer the ship.[7]
[7] Exhibit 150B, Q76 - Q93, Q101 - Q102.
The interview was suspended again between 11.03 am and 11.14 am, when the interpreter could not continue and another had to be engaged. When the interview recommenced, the following exchange occurred:
Q111.I wish to remind you that the caution I gave you earlier, that you do not have to say or do anything but that anything that you do say or do may be used as evidence, still applies.
AYes.
Q112.Yep. You understand the caution, that you don't have to speak to me?
AYes.
The appellant indicated that the fishing vessel departed from Zhuhai over 20 days ago, and that he was driving the boat. He said he did not know who owned the boat or where the ship was going. The vessel had not stopped at port or met any other ships in the ocean.[8]
[8] Exhibit 150B, Q118 - Q129.
The appellant was shown photographs of others found on the fishing vessel, was able to name only two and was unable to describe the roles which they had on the vessel. He said that no particular duties were assigned to particular persons and there was no captain of the boat.[9]
[9] Exhibit 150B, Q132 - Q161.
The appellant told police that he was not told how much money he would be paid for working on the boat, he did not know where Australia was and he knew he was in Australia only after he arrived. He could only remember that the ship went south from China. There was no cargo on board, and he did not know the purpose of the voyage.[10]
[10] Exhibit 150B, Q163 - Q179.
The appellant said that the tender did not leave the fishing vessel at all, that no cargo was taken from the fishing vessel and the fishing vessel did not stop for a number of hours on 1 May 2016.[11]
[11] Exhibit 150B, Q213 - Q223.
After some confusing answers about communications, the appellant admitted that he wrote GPS co-ordinates (which other evidence showed indicated the point at which the drugs were landed) on a piece of paper. The effect of his answer was that he wrote the numbers, which were meaningless, as an example to teach others to use the GPS.[12] He denied knowing that there were drugs on board.[13]
[12] Exhibit 150B, Q237 - Q241.
[13] Exhibit 150B, Q248.
Towards the end of the interview, the following exchange occurred between Constable Mayo and the appellant:
Q260. Okay. Now, he doesn't know a lot, he doesn't know anything by the - from what you're saying to us.
A That's right, I really don't know.
Q261. Yeah, okay. Is that because he is exercising his right not to - not to self-incriminate, not to - not to give evidence against himself?
A No, I only tell you what I do know.
Q262. Okay. Has anyone told him not to answer questions or threatened him not to answer our questions?
A No.
The interview concluded at 12.05 pm with police asking the appellant the following standard questions:
Q281. All right, Kit. Is there anything further that you wish to tell me about this matter?
A I don't understand why you have to like allege I of doing something.
Q282. Okay. Have the answers you have given during this interview been made of your own free will?
A Yes.
Q283. Has any threat, promise or inducement been held out to you to make the answers you have given during this interview?
A No.

Recorded interview on 25 May 2016

The second recorded interview began at 11.05 am on 25 May 2016. The interview was suspended after it became apparent that the appellant could not understand the interpreter. He made a request for a different interpreter.[14] The second interview recommenced at 11.25 am when another interpreter, who the appellant said he was able to understand,[15] was engaged.
[14] Exhibit 152B, Q22 - 30.
[15] Exhibit 152B, Q37.
Federal Agent Gallardo then explained the allegations which he wished to speak to the appellant about, and cautioned the appellant, in the following terms:[16]
[16] Exhibit 152B and exhibit 5C.
Q41.Special Member Kelly JORGENSEN and I want to speak to you today about the following allegation.
[Just now they told you about the allegation to you. Now they will repeat this allegation to you]
A Yes.
[Oh]
Q42. That on May the first, two thousand and sixteen you imported a commercial quantity of a border controlled drug into Australia. This is a serious offence that carries a maximum penalty of life imprisonment. Now, before I do go into the allegation I need to go over some formal steps.
[On May the third two thousand and sixteen, on that day you imported some border controlled drug. This is a serious crime. The highest penalty is life imprisonment. Before they go formally to your allegation, they have some standard (indistinct) to tell you]
A Right.
[Okay]
Q43. Okay. I must caution you that you do not have to say or do anything . - - -
[They need to tell you that you can, no need to say or do anything.]
AYes.
[Understand]
Q44. - - - but that anything that you do say or do may be used in evidence. Do you understand?
[But whatever you do or say they may use it as evidence, do you understand?]
A Yes.
[Ah]
Q45. Okay. Can you tell me in your own words, Mr LUO, what the caution means to you?
[Now Mr Luo, can you tell us what your understanding is to what we just said to you?]
A Well you allege that I imported illicit drug into Australia.
[That is,they allege now I smuggled drug to Australia.]
Q46. Yeah, that's the allegation. I'm just going over the caution now. Do you understand what I just went over?
[Now we don't need to talk about the allegation. It is what we said just now, that was you don't need to say anything, that kind of things. You tell us now what you heard?]
A Well something like when you ask me things I do not to say or do anything.
[That is, what they ask me, some of them I don't need to say or do anything. Is that right?]
Q47. That's correct. And anything that you do say or do may be used in evidence in court.
[Yes you are right in the first part. The second part is what you say or do will be used as evidence in court.]
A Yes, understood.
[Understand.]
Q48. Yeah, so can you just explain that in your - yeah, can you explain that in your own words?
A Yeah, so then what I say today I will be used in court as my statement.
[That is, no matter what I said, they will use it as verbal evidence in court.]
The appellant was informed of his rights to contact a friend or relative, to contact or attempt to contact a lawyer and have a lawyer present, and contact the Chinese consular office. He said he did not want to exercise those rights before proceeding with an interview. He was given a copy of 'the rights' in simplified Cantonese.[17] Again, the document he was given was not in evidence.
[17] Exhibit 152B, Q51 - Q70.
In the interview, the appellant indicated that he had been on the fishing vessel for about 15 days, and had boarded the vessel with all but one of the crew from another boat. He was responsible for driving the fishing vessel, and he received instruction about where to go over the radio. He had been engaged to drive the fishing vessel by a man he met in China, and was to be paid 6000 yuan for one month's work when he got back to China. He had never seen the tender leave the fishing vessel. There was a lot of stuff on the fishing vessel and he did not pay attention to it and did not pick up any of the black bags (which were alleged to contain the methamphetamine).[18]
[18] Exhibit 152B, Q102 - Q143.
The interview concluded similarly to the interview on 3 May 2016, in the following manner:
Q188. Okay. Have the questions you answered here today been of your own free will?
A Yes.
Q189. Has there been any threat made to you to answer any of the questions here today?
A No.
Q190. Has there been any inducement made to you to answer any of my questions or Kelly's questions today?
A No.
Q191. And had there been any promise made to you to answer any of my questions here today?
A No.
Q192. Is there anything further that you wish to say?
A No.

Hearing of objection to admission of recorded interviews

The appellant's objection to the admission of his recorded evidence at trial was heard by the trial judge in a pre-trial hearing on 31 August 2017.
The evidence adduced by the Crown at the pre-trial hearing consisted of the recorded interviews, annotated and unannotated transcripts of the recorded interviews and a statement of the interpreter whose annotations appeared on the annotated transcript.[19] The appellant did not adduce any evidence on the hearing of the objection to the admission of the recorded interviews.
[19] Trial ts 87 - 88.
The written and oral submissions advanced by the appellant were to the effect that the admissions in the recorded interviews were not voluntarily made and that the court should exercise its discretion to exclude the evidence.
In relation to both interviews, the appellant's written submissions focussed on the difficulties in translation, particularly in relation to the caution, and the 'absence of serious attempts to provide the [appellant] with access to legal advice prior to continuing the interview'.[20]
[20] Defence submissions - Admissibility of Evidence, par 6 (blue and green appeal book, p 185).
The oral submissions of the appellant's junior trial counsel indicated that it was not being contended that the appellant was threatened or coerced into answering the questions. However, he appeared to contend that the appellant's lack of understanding and his lack of access to legal advice meant that the court could not be satisfied that he voluntarily provided the answers knowing that he had the right to refuse to answer any question.[21]
[21] Trial ts 75 - 76.
In subsequently published written reasons, the trial judge indicated his understanding that counsel had abandoned the contention in relation to the interview of 3 May 2016 concerning perceived difficulties in interpretation of the caution.[22] However, it does not appear to us that the transcript referred to by the trial judge, in which counsel indicated that he could not take his submissions any further than he had and that he may 'have strayed off point',[23] constituted an abandonment of the point. Nothing turns on this point in the appeal, as the trial judge dealt with the issue in any event in his Honour's written reasons for decision.[24] We do not accept the Crown's submissions[25] in the appeal that the appellant is precluded from raising this point on appeal.
[22] The State of Western Australia v Luo [2018] WASC 226 (Primary Decision) [21].
[23] Trial ts 94 - 95.
[24] Primary Decision [53].
[25] Respondent's submissions, pars 1 - 3 (white appeal book, p 33).
However, the appellant's junior trial counsel did retract a submission that the second interview of 25 May 2016 should be excluded based on difficulties the interpreter experienced in hearing what was said.[26] Counsel's submissions as to the second interview focussed on the appellant's understanding of the caution, as revealed by the answer to Q46 in that interview (see [29] above).
[26] Primary Decision [22]; trial ts 115.
At the conclusion of the pre-trial hearing, the trial judge reserved his decision to 3 October 2017. That was the first day of trial, at which the trial judge gave his ruling in the following terms:[27]
For reasons which I will publish in due course, but not later than the conclusion of the trial, I rule that subject to deletion of the questions and answers numbered 162 and 217 in the interview of 3 May 2016, the contents of both the interview of 3 May 2016 and the interview of 25 May 2016 conducted with the [appellant] are admissible and will be received in evidence at the trial if tendered by the prosecution.
For the benefit of counsel, I will explain briefly that having listened to and viewed the interviews and read the annotated transcripts which contain the further translations, and in the absence of any evidence from the [appellant], I am satisfied that he understood the cautions and took part in the interviews voluntarily, so that any admissions made by him were made in the exercise of a free choice to speak or remain silent.
There is no evidence to suggest that he did not understand his rights, that he felt pressured to take part in either of the interviews without a lawyer, or that his will was overborne by anything done by the interviewing officers.
Further, I am not satisfied that it would be unfair to the [appellant] to admit the interviews into evidence. In respect of each interview, there is nothing in the conduct of the officers or the circumstances of the interview to lead to the conclusion that the admission of the interview would result in an unfair trial for the [appellant].
Therefore, I refuse the application to exclude the interviews on the ground of unfairness.
[27] Trial ts 141 - 142.
The trial judge anticipated publishing written reasons before the conclusion of the trial, but indicated to counsel for the Crown and the appellant that they should let his Honour know if they sought to have those reasons available earlier.[28]
[28] Trial ts 142 - 143.

Trial judge's approach in written reasons

Although his Honour was not able to do so during the course of the trial, the trial judge did publish detailed written reasons for his decision to admit the recorded interviews.
After setting out the factual background and relevant legal principles, the trial judge determined the questions of admissibility of the recorded interviews in the following manner.

Interview of 3 May 2016 - Voluntariness

The trial judge said that, on the very first occasion on which the caution was stated (Q19), the interpretation was faithful in most respects and certainly conveyed the meaning of the caution adequately. The appellant said he understood.[29] The trial judge continued:[30]
Although his next answer, 'I know', might be thought to be unresponsive to the question [as to] whether he understood the caution, it might equally be regarded as an indication that he knew what it meant. In any event, [the appellant's] answers to the questions that followed demonstrate that he understood he did not have to answer questions and, after some clarification, that he could not be forced to do anything during the interview.
The fact that [the appellant] understood his rights is confirmed by the fact that he exercised one of those rights by asking to contact a lawyer.
Nothing in the balance of the interview suggests that [the appellant] was under any duress or inducement or otherwise feeling under any obligation to speak. In the absence of any evidence from [the appellant], I am satisfied on the balance of probabilities that he participated in the interview and answered questions voluntarily.

Interview 3 May 2016 - Exclusion in the exercise of discretion

[29] Primary Decision [54].

[30] Primary Decision [54] - [56].

In relation to the unfairness argument based on the caution, the trial judge observed:[31]
In my opinion, the approach of the interviewing officers was sensitive to [the appellant's] cultural background and his inability to speak English, and they took reasonable steps, beyond providing an interpreter, to ensure that [the appellant] understood his rights and had the capacity to make a free choice whether to speak or remain silent. There is no basis for discretionary exclusion on that account.
[31] Primary Decision [57].
The trial judge rejected as speculative a number of submissions advanced by the appellant's junior trial counsel as to the appellant's reasons for not wanting to wait further for a lawyer.[32] His Honour's ultimate conclusion was expressed in the following terms:[33]
As McLure P said in Wright v The State of Western Australia [2010] WASCA 199 at [34], where a suspect expressly or impliedly indicates that they do not want to exercise the right to communicate with a lawyer, in the context of a reasonable opportunity being given to obtain legal advice, no further time is required. I accept the Crown's submission that, when faced with the clear indication from [the appellant] that he did not want to wait any longer for a lawyer, the officers had no obligation to do anything further in regards to that right. I also accept that the officers were transparent and fair in putting on record what had occurred during the suspension of the interview, which explained why their efforts stopped, and in giving [the appellant] a further opportunity to consider whether he wished to communicate with a legal practitioner.
I have given consideration to whether there is anything in the manner the interview was conducted or in the answers given by [the appellant] to suggest that the reliability of his admissions might be called into question. In my opinion, there is nothing to suggest that his answers were unreliable or that their reliability might in any way have been affected by the fact that he did not pursue his right to communicate with a legal practitioner.
There was no illegality or impropriety on the part of the investigating officers that would give rise to any public policy reason for exclusion of the interview.

Interview of 25 May 2016 - Voluntariness

[32] Primary Decision [59] - [62].

[33] Primary Decision [63] - [65].

The trial judge dealt with the appellant's argument as to voluntariness based on the appellant's answer to Q46 of the interview of 25 May 2016 as follows:[34]
In my opinion, [the appellant's] answer to question 46 demonstrates an understanding that he did not have to answer any particular question if he did not wish to. I am satisfied, having regard to all of the circumstances, that, by referring to 'some of them' [the appellant] was not indicating a belief that there was some category of cases or some particular questions in respect of which he did not have to say anything. Had that been the case, one might well have expected him to seek some clarification at that stage. On the other hand, there would be no need for clarification if he understood that it was a matter for him to decide which questions he answered and which he did not.
[34] Primary Decision [72].
The circumstances which the trial judge expressly took into account were:
(1)The appellant's participation in a police interview some three weeks earlier, where he demonstrated his understanding of the caution.[35]
(2)The appellant's answer to Q43, and the provision of the simplified Cantonese version of his rights.[36]
(3)The appellant did not give direct evidence as to his state of mind at the hearing of the application, so that his state of mind was to be inferred from the contents of the interview.[37]
(4)The appellant's answers to Q188 - Q192, which went 'to the core of the issue of voluntariness, namely whether [the appellant's] will was overborne by some conduct of the interviewing officers that had the capacity to do so.'[38]
[35] Primary Decision [73].
[36] Primary Decision [74].
[37] Primary Decision [77].
[38] Primary Decision [78].
As to the provision of the simplified Cantonese version of his rights the trial judge observed:[39]
[A]lthough I do not have direct evidence of the contents of the document, the interviewing officer indicated that it reflected the rights he had explained, and [the appellant] did not say anything, after he had read and signed the simplified Chinese version, to indicate that the document was different to what he had been told a short time earlier about his rights.
In any event, as was observed by Gummow and Hayne JJ in Tofilau, the fact that an accused who has made admissions in an interview may have been under some misapprehension or mistake, even if that misapprehension or mistake was induced by the person conducting the interview, does not lead, without more, to the conclusion that the accused had no choice to speak or stay silent. Nor would the existence of some imbalance of power between the accused and the interviewer lead to that conclusion, without more being established.
[39] Primary Decision [75].
The trial judge's reference to Tofilau v The Queen was to the following passage of the judgment of Gummow and Hayne JJ:[40]
The conclusion that a confessionalist had no choice to speak or stay silent is not required (and without more being established, would not be open) if it is observed that the confessionalist acted under some misapprehension or mistake, even if that misapprehension or mistake was induced by the person to whom the confession is made. Nor is that conclusion required (and without more being shown the conclusion would not be open) if it is observed that there was some imbalance of power between the confessionalist and the person to whom the confession was made.

Interview of 25 May 2016 - Fairness

[40] Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396 [63].

The trial judge apprehended that the appellant's argument for the exclusion of the interview of 25 May 2016 rested on voluntariness. However, his Honour nonetheless considered whether the same factors relied on by counsel would justify exclusion of the interview in the exercise of the fairness discretion. The trial judge held:[41]
I am not satisfied that [the appellant] was under a misapprehension about his rights in such a manner as would justify exclusion of the interview in the exercise of the fairness discretion. For the reasons I have given in the preceding section, I consider he had an adequate understanding of his rights.
There is no doubt that [the appellant] was at a disadvantage - detained in an alien country, unable to speak the language, never having been interviewed by police before and with few resources at his disposal. I am satisfied, however, that any disadvantage suffered by [the appellant] of that kind was adequately addressed by the provision of an interpreter and the careful approach taken by the police to ensure he understood the rights.
Finally, there is no public policy reason to exclude the interview. There is no suggestion of unlawful conduct or impropriety on the part of the police.

Trial judge's conclusions

[41] Primary Decision [80] - [82].

The trial judge expressed his ultimate conclusions in the following terms:[42]
In summary, having listened to and viewed the interviews and read the annotated transcripts, which contain the further interpretations, and in the absence of any evidence from [the appellant], I am satisfied that he understood the caution on each occasion and took part in the interviews voluntarily, so that any admissions made by him were made in the exercise of a free choice to speak or remain silent.
There is no evidence that [the appellant's] will was overborne by anything done by the interviewing officers.
I am also satisfied that [the appellant] understood his rights in relation to communicating with a legal practitioner, and he made the choice ultimately on 3 May 2016 to proceed without a lawyer. On 25 May 2016, he made that choice from the start. I am not satisfied that he felt pressured to take part in either of the interviews without a lawyer.
For the reasons I have given, I am not satisfied that it would be unfair to [the appellant] to admit the interviews into evidence. In respect of each interview, there is nothing in the conduct of the officers or the circumstances of the interview to satisfy me on the balance of probabilities that the admission of the interview would result in an unfair trial for [the appellant].
Therefore, on 3 October 2017, I ruled that both interviews were admissible and neither would be excluded on the ground of unfairness. I ruled that they would be received into evidence subject to deletion of certain portions I mentioned in the first section of these reasons.
[42] Primary Decision [83] - [87].

Statutory provisions

The following provisions of the Crimes Act regulate the questioning of persons under arrest.
Under s 23F(1) of the Crimes Act, subject to a presently immaterial exception:
[I]f a person is under arrest … an investigating official must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence.
Section 23G of the Crimes Act provides for the right of a person under arrest to communicate with a friend, relative or legal practitioner in the following terms:
(1)Subject to section 23L, if a person is under arrest … an investigating official must, before starting to question the person, inform the person that he or she may:
(a)communicate, or attempt to communicate, with a friend or relative to inform that person of his or her whereabouts; and
(b)communicate, or attempt to communicate, with a legal practitioner of the person's choice and arrange, or attempt to arrange, for a legal practitioner of the person's choice to be present during the questioning;
and the investigating official must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning.
(2)Subject to section 23L, if a person is under arrest … and wishes to communicate with a friend, relative or legal practitioner, the investigating official must:
(a)as soon as practicable, give the person reasonable facilities to enable the person to do so; and
(b)in the case of a communication with a legal practitioner—allow the legal practitioner or a clerk of the legal practitioner to communicate with the person in circumstances in which, as far as practicable, the communication will not be overheard.
(3)Subject to section 23L, if a person is under arrest … and arranges for a legal practitioner to be present during the questioning, the investigating official must:
(a)allow the person to consult with the legal practitioner in private and provide reasonable facilities for that consultation; and
(b)allow the legal practitioner to be present during the questioning and to give advice to the person, but only while the legal practitioner does not unreasonably interfere with the questioning.
Section 23L provides for presently immaterial exceptions to these requirements.
Section 23N of the Crimes Act provides for the right of certain persons under arrest to an interpreter in the following presently material terms:
Where an investigating official believes on reasonable grounds that a person who is under arrest … is unable, because of inadequate knowledge of the English language … to communicate orally with reasonable fluency in that language, the official must, before starting to question the person, arrange for the presence of an interpreter and defer the questioning or investigation until the interpreter is present.
Section 23P provides for the right of an arrested person who is not an Australian citizen to communicate or attempt to communicate with the consular office of a country of which he or she is a citizen, and be allowed a reasonable time to do so, before questioning commences.
Section 23Q of the Crimes Act provides that:
A person who is under arrest … must be treated with humanity and with respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment.
Section 23S of the Crimes Act, on which the appellant places particular reliance in this appeal, provides:
Nothing in this Part affects:
(a)the right of a person to refuse to answer questions or to participate in an investigation except where required to do so by or under an Act; or
(b)any burden on the prosecution to prove the voluntariness of an admission or confession made by a person; or
(ba)any burden on the prosecution to prove that an admission or confession was made in such circumstances as to make it unlikely that the truth of the admission or confession was adversely affected; or
(c)the discretion of a court to exclude unfairly obtained evidence; or
(d)the discretion of a court to exclude illegally or improperly obtained evidence.

Section 23U and s 23V of the Crimes Act deal with the recording of confessions or admissions.

Admission of confessional material - Common law principles

It is a condition for the admissibility of evidence of confessional statements in a criminal trial that the confessional statements were made voluntarily. It is presumed that a confessional statement is voluntary if there is nothing to suggest that it is involuntary. If the issue of voluntariness is raised, the State bears the onus of establishing, on the balance of probabilities, that the statement is voluntary.[43]
[43] See Kelly v The State of Western Australia [2017] WASCA 221 [34] - [36] and cases there cited.
Even if a confessional statement is made voluntarily, it may be excluded in the exercise of the court's residual discretion if:[44]
(1)it would be unfair to the accused to admit evidence of the statement;
(2)it is against public policy to admit evidence of the statement; or
(3)the prejudicial effect of the evidence is greater than its probative value.
The onus of proving facts which justify the exercise of the residual discretion in favour of excluding a voluntarily made confessional statement rests with the accused.[45]
[44] Kelly [38] - [39]; R v Swaffield (1998) 192 CLR 159 [52].
[45] Kelly [38] and cases there cited.
It is not always possible to treat voluntariness, reliability, unfairness to the accused and public policy considerations as discrete issues.[46]
[46] Swaffield [74] - [76].
In the present case, it is not suggested that the probative value of evidence of the appellant's recorded interviews was outweighed by any prejudicial effect of that evidence. That aspect of the court's residual discretion may be put to one side.
The public policy aspect of the residual discretion commonly arises where the confessional statements are procured by unlawful conduct of investigating officers. In such a case, the court weighs the public interest in convicting those who commit criminal offences against the public interest in the protection of the individual from unlawful and unfair treatment and the public interest against courts being seen to sanction or acquiesce in the unlawful conduct of those whose duty is to enforce the law.[47]
[47] See R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54.
Before the trial judge, the only alleged failure by the investigating officers to comply with the provisions of the Crimes Act was the failure on 3 May 2016 to defer questioning of the appellant 'for a reasonable time' to allow the appellant to communicate, or attempt to communicate with a legal practitioner. The requirement to do so was imposed on the investigating officers by s 23G of the Crimes Act. The trial judge in effect held that there was no breach of that requirement in light of the appellant's indication that he no longer wished to obtain legal advice. The grounds of appeal do not challenge that finding.
The critical issues in this appeal therefore concern whether the admissions in the recorded interview were voluntarily made, and whether evidence of the appellant's admissions should have been excluded in the exercise of the residual discretion on the ground that its admission would be unfair to the appellant.

Ground 1: Whether admissions were voluntary

Ground 1 contends that the trial judge erred in ruling that the appellant's admissions in the recorded interviews were made voluntarily. The particulars to the ground indicate that the basis for this contention is that it is to be inferred that the appellant did not understand the caution, in particular that he did not have to do or say anything, and therefore the admissions cannot be said to have been made 'having exercised a free choice to speak or be silent'.
As such, there are two steps involved in the appellant's argument on this ground of appeal. The first is that the appellant's admissions will not have been voluntarily made for the purpose of the exclusionary evidentiary rule if he did not understand that he did not have to say or do anything in the interview. The second is that it is to be inferred that the appellant did not actually have that understanding when he made the admissions.
The first proposition is, as a matter of law, inconsistent with decisions of the High Court which are binding on this court.
What is meant by 'voluntary' in this context was explained by Dixon CJ in McDermott v The King:[48]
At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made. The expression 'person in authority' includes officers of police and the like, the prosecutor, and others concerned in preferring the charge. An inducement may take the form of some fear of prejudice or hope of advantage exercised or held out by the person in authority. That is the classical ground for the rejection of confessions and looms largest in a consideration of the subject. … The extreme applications which were made at one time of the principle that confessions obtained by the use by persons in authority of hope or fear were inadmissible gave this head of inducement an importance which has tended to obscure other forms of inducement. It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man's will.
The focus of that statement is on whether the will of the accused has been overborne or an inducement has been held out by a person in authority.
[48] McDermott v The King (1948) 76 CLR 501, 511 - 512.
In Swaffield the plurality recognised that Australian courts have generally not expressed the relevant principles by reference to an informed choice. At least in terms of voluntariness, they have tended to approach the matter in terms of freedom from compulsion. That emphasis is well placed where voluntariness is at issue, but too narrow when the exercise of discretion is involved.[49] Their Honours also recognised that, as Australian authorities stand, the absence of a caution triggers the exercise of the discretion to exclude what was said but does not require exclusion.[50]
[49] Swaffield [89].
[50] Swaffield [95].
Subsequently, in Tofilau, the majority of the High Court recognised that, at least generally, the concept of a voluntary confession was a confession which was not made under compulsion or duress, or out of fear of prejudice or in hope of advantage as a result of statements made by a person in authority.[51] While they may have taken a broader view of the concept of 'basal voluntariness' than other members of the majority in that case, Callinan, Heydon and Crennan JJ adopted the following passage from Gleeson CJ's judgment in R v Azar:[52]
There is no justification for the proposition that a statement is voluntary … only if the maker of the statement was aware, at the time it was made, that the law offered a choice between speaking or remaining silent. Admissions are frequently made by accused persons, often to persons other than police officers, and sometimes to police officers, in circumstances where the maker of the statement is uninterested in, and unaware of, the legalities of the situation. Indeed if … a statement may be voluntary even though made pursuant to a legal obligation, a fortiori a statement may be voluntary even though the maker is unaware of what the law requires.
… There are numerous statements in the law reports to the effect that a confessional statement to a police officer is not inadmissible merely because no caution has been administered. It is hardly likely that those statements were intended to apply only in the case of an accused person who knows of his right to silence even without a caution.
[51] Tofilau [22], [55] - [64], [339] - [340], [362] - [364], [376].
[52] Tofilau [359] quoting R v Azar (1991) 56 A Crim R 414, 419 - 20.
So, in Australian law, an accused person does not need to have understood that he or she has a choice as to whether or not to speak before a statement is taken to be voluntary. A failure by police to give a caution at all or a failure by an accused to understand the caution will be relevant to the exercise of the residual discretion. However, such failures do not of themselves render a confessional statement inadmissible by reason of being involuntary.
In the present case it is not suggested that the police officers offered any threat or inducement in order to procure the admissions, or that the appellant's will was overborne by any external factor. The fact that he did not understand the caution and appreciate that he did not have to answer questions, if established, would be relevant to the exercise of the residual discretion but would not make the admissions involuntary for the purposes of the common law exclusionary rule. The appellant's counsel ultimately accepted that he could point to no authority for the contrary proposition, and focussed his oral submissions on ground 3 and the fairness discretion. He was plainly correct to do so.
Even if the first proposition noted at [69] above was established, the appellant would still need to overcome the trial judge's factual finding that the appellant did in fact understand the caution. Given the focus of the appellant's oral submissions, we shall address the finding as to the appellant's understanding of the caution in dealing with ground 3 and the fairness discretion.

Ground 3: Fairness discretion

In an appeal against the exercise of the residual discretion, the principles applicable to the review of discretionary decisions, stated in House v The King,[53] are applicable.[54]
[53] House v The King (1936) 55 CLR 499 at 505.
[54] Tofilau [24], [111].
In exercising the discretion, the trial judge found that, at both the first and second interviews, the appellant understood that he did not have to answer questions and that he could not be forced to do anything during the interview.[55] The appellant's ground of appeal in part contends that the exercise of the trial judge's discretion is premised on a finding of fact which was not supported by the evidence. This ground therefore challenges a factual finding made by a trial judge in the course of making a preliminary ruling.
[55] Primary Decision [54] (First interview), [72] - [75].
There is relatively limited authority on the principles of appellate review which apply to factual findings made by a trial judge in the course of making an evidentiary ruling of this kind.[56] Further, as discussed below, the existing authorities indicate divergent views as to the correct approach.
[56] Hunt J (Carruthers and Wood JJ agreeing) noted in R v O'Donoghue (1988) 34 A Crim R 397, 401 that '[t]he usual limits upon an appeal against the exercise of a discretion are well known, but those upon an appeal from such findings of the trial judge in a criminal trial do not appear so well known'. More recently, Weinberg and Beach JJA noted that there was comparatively little authority directly on point in Willis v The Queen [2016] VSCA 176; (2016) 261 A Crim R 151 [95] (Priest JA agreeing on this point at [222]).
In Willis,[57] Weinberg and Beach JJA, with whom Priest JA agreed on this point,[58] said that the better view seems to be that the appellate court ought not to conclude that a trial judge who has conducted a voir dire has made a factual error of a vitiating kind unless satisfied that the finding below was not reasonably open. Substantially the same view has been expressed by intermediate appellate courts in Queensland,[59] New South Wales[60] and the Northern Territory.[61] That approach reflects the view of Griffith CJ in Attorney General (NSW) v Jackson:[62]
It is a settled rule that, when the admissibility of a deposition is in question, all relevant questions of fact must be determined by the presiding Judge, and, although probably his decision on this point is subject to appeal, and would be set aside if it were manifestly not warranted by the evidence, yet, unless it appears that that is the case, his decision is final.
[57] Willis [95], see also the analysis of the authorities at [96] - [100].
[58] Willis [222].
[59] R v O'Dempsey [2018] QCA 364 [111] - [112] Sofronoff P (Gotterson JA and Brown J agreeing).
[60] R v O'Donoghue (1988) 34 A Crim R 397, 401 Hunt J (Carruthers and Wood JJ agreeing); R v Kyriakou (1987) 29 A Crim R 50, 57 Yeldham J (Carruthers and Grove JJ agreeing).
[61] Heiss v The Queen (1992) 2 NTLR 150, 154 (Gallop, Martin and Angel JJ).
[62] Attorney General (NSW) v Jackson (1906) 3 CLR 730, 742. Barton and O'Connor JJ were of the same opinion.
However, there is a division of opinion in the New South Wales Court of Criminal Appeal as to the proper approach to be taken to challenges to factual findings made by sentencing judges.[63] The approach taken by Basten JA and Hamill J in Hordern v The Queen[64] and Clarke v The Queen[65] rejects as clearly wrong the view that House v The King[66] requires that factual error can only be reviewed on a 'constrained' basis. Though the view is expressed in relation to findings by a judge during sentencing, the approach taken in the latter cases may be in tension with the authorities referred to in the previous paragraph.
[63] See the discussion in TH v The Queen [2019] NSWCCA 184 [22] - [23] Davies J (Leeming JA and Hidden AJ agreeing) as to the two approaches. See also AB v R [2014] NSWCCA 339 [60].
[64] Hordern v The Queen [2019] NSWCCA 138 [5] - [20].
[65] Clarke v The Queen [2015] NSWCCA 232; (2015) 254 A Crim R 150 [32] - [33], [133].
[66] House v The King (1936) 55 CLR 499, 505.
In EYO v The State of Western Australia,[67] this court noted a suggestion that the House v The King principles may not wholly govern appellate review of the exercise of a discretion of a trial judge to exclude otherwise admissible evidence in a criminal trial. The court went on to observe:
In particular, it has been suggested that the appellate basis of miscarriage of justice in s 30(3)(c) of the Criminal Appeals Act means that, if an intermediate appellate court considers that the evidence should have been excluded in the exercise of the unfairness discretion and it is reasonably possible that the failure to exclude the evidence affected the verdict, the ground of appeal should be upheld.
It was unnecessary to resolve this issue in EYO.[68]
[67] EYO v The State of Western Australia [2019] WASCA 129 [63] referring to Em v The Queen [2006] NSWCCA 336 [56].
[68] Cf, in the context of appeals against factual findings in a trial by judge alone: The State of Western Australia v Rayney [2013] WASCA 219; (2013) 46 WAR 1 [353] - [424].
Similarly, it is unnecessary to resolve issues as to the appropriate appellate standard of review in the present case. We have reviewed the material before the trial judge. We note that the material before the trial judge comprised documents and audio and visual recordings. This court is in as good a position as the trial judge to evaluate that material. Having reviewed the material before the trial judge, we are of the view that the appellant did understand that he did not have to answer questions and that he could not be forced to do anything during the interviews. We explain our reasons for reaching that conclusion at [90] - [108] below. We are, therefore, satisfied that the trial judge's conclusion on the issue of the appellant's understanding of the caution was correct. It follows that it is unnecessary to resolve the issue of the applicable standard of appellate review to be applied to the trial judge's factual finding in the course of making a preliminary ruling in the present case. It is undesirable to attempt to resolve this issue when it is not necessary to do so and where the issue has not been the subject of written or oral submissions.

Appellant's submissions

The appellant contends that the transcripts of the recorded interviews give rise to an inference that the appellant did not understand that he did not have to answer any of the police questions if he did not want to. Counsel points to the following circumstances as generally supporting that inference, and the conclusion that it was unfair to admit evidence of the recorded interviews in those circumstances:[69]
(1)The appellant was a foreign national from a coastal area of southern China who only spoke Cantonese and no English.
(2)The appellant was an unsophisticated fisherman and there was no evidence that he had received any formal education.
(3)The appellant was in custody in an unfamiliar foreign country with no access to legal advice.
(4)The interpreters were not physically present at either recorded interview, but rather interpreted over a telephone link with attendant hearing and communications difficulties.
(5)The appellant was given an unsatisfactory and confusing explanation of his right to silence.
(6)There was no effective attempt at the first interview to test the appellant's understanding of the caution, and when a limited effort to that end was made in the second interview the appellant's answer indicated that he did not understand the right to silence.
(7)There was no evidence, such as the appellant exercising the right to decline to answer questions, demonstrating that the appellant satisfactorily understood he had a right to silence.
[69] Appeal ts 7 - 9.
Counsel also submitted that the vulnerability of the appellant in the interview was such as to make his position analogous to a traditional Aboriginal person being interviewed by police. He invited the court to apply the Anunga guidelines by analogy to the present case.[70] Counsel particularly sought to invoke the third guideline, which is:
Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms and say, 'Do you understand that?' or 'Do you understand you do not have to answer the questions?' Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent.
[70] Being the guidelines laid down by Foster J in R v Anunga (1976) 11 ALR 412, 414 ‑ 415.
The appellant's counsel properly accepted that the ground depended on a finding that the appellant failed to understand that he was not obliged to answer any of the police officer's questions. That is, if it were not established that the appellant failed to understand the caution, there would be no basis in all of the circumstances for the trial judge to have exercised the residual discretion on the unfairness ground.[71]
[71] Appeal ts 27.
The appellant submits that police took the appellant's answers that he understood the caution at face value. At the first interview, there was no examination as to whether the appellant understood the first limb of the caution (that he did not have to say anything) and only a very specific example given in relation to the second limb (that he did not have to do anything). At the first interview, police officers did not check the appellant's comprehension of the caution by asking him to explain it in his own words. When the appellant was asked to explain the caution in the second interview, his answer revealed he did not understand the first limb of the caution. The appellant invites the court to infer from the transcript that the appellant did not understand the first limb of the caution.

The appellant does not complain that unfairness arose from his lack of understanding of the third limb of the caution (that anything he said or did may be used in evidence).[72]
[72] Appeal ts 9.
We shall deal with the detail of the appellant's submissions as to these matters in resolving the ground of appeal below.

Should it be inferred that the appellant did not understand the caution?

In the context of the residual discretion, the onus was on the appellant to establish, on the balance of probabilities, the facts justifying the exercise of the discretion. In our view, the evidence before the trial judge did not support the inference, on the balance of probabilities, that the appellant failed to understand the caution. Further, in our view, the trial judge was correct to find that the appellant understood the caution at both the first and second interviews.
In considering what inferences should be drawn from the transcript, it is appropriate to focus on the English re-interpretation of what was said by the interpreters to the appellant, rather than what was said in English by the police officers. The appellant's understanding is to be determined by reference to what he heard in his own language, rather than what police officers said in a language the appellant did not understand.
In assessing what is said in an interpreted interview, account must be taken of the nature of the interpretive task and the limitations in the capacity of an interpreter to convey the precise meaning of words spoken in one language into another language. Particularly when account is taken of differences in grammatical structure, the process of interpretation from one language to another cannot be expected to convey a sense and nuance identical to the original speech. The limitations in the capacity of an interpreter mean that the interpreted evidence should not be subject to microscopic examination for inconsistencies. This court has recognised these limitations in de la Espriella-Velasco v The Queen.[73] The need to take account of those limitations seems to us to be particularly acute when examining the English interpretation of words spoken in Cantonese which were themselves an interpretation of words originally spoken in English.
[73] de la Espriella-Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 esp at [9], [17], [31], [52] - [54, [75], [363].
The Cantonese interpretation of the caution in Q19 of the first interview (as interpreted back into English) appears somewhat garbled, but informed the appellant that 'you don't have to answer him or do anything'. The appellant's answer indicated that he understood.
The first limb of the caution was clearly interpreted in Q22, where the English interpretation of what the interpreter told the appellant in Cantonese is:
Do you understand there is no need for you to talk?
That is a simple question clearly asked in the appellant's own language. The appellant indicated that he understood this.
The appellant's written submissions focussed on the interpretation of Q22 of the first interview. The question asked in English was 'Do you understand that you don't have to talk to me?'. The English interpretation of what was said to the appellant in Cantonese is 'Do you understand there is no need for you to talk?'. The appellant's reliance in written submissions on the difference between the words 'have' and 'need' seems to us to be unduly semantic, particularly given that we are concerned with the interpretation of English words to Cantonese and vice versa. Ultimately, the appellant's counsel (quite appropriately in our view) did not press this point in oral submissions.[74]
[74] Appeal ts 10 - 11.
In Q23 of the first interview, when he was asked if he understood the police officers could not force him to do anything, the appellant indicated that he did not. It is significant that the appellant said so when he did not understand something that was being put to him by the police officers. The police officer's subsequent explanation in Q25 was not confined to a specific example about asking the appellant to draw a house. After the example was given, the officer said 'I can't force him to do things'. There is no issue as to the interpretation of this part of what the officers said.
Further, the interpretation of Q111 and Q112 of the first interview, in which it was made clear to the appellant that he did not have to speak to the police officers, is not impugned. In addition, when asked in Q261 whether, in saying he did not know, the appellant was exercising his right not to incriminate or give evidence against himself, the appellant indicated that he was not.
The second interview got off to a false start before it became apparent that the appellant could not properly communicate with the interpreter who was initially engaged. This again illustrates that the appellant was willing to say something when he could not understand what was being put in the interview.
After an interpreter who the appellant did understand was engaged, the caution was administered in clear terms at Q43 and Q44 (see [29] above). The appellant's counsel submits that the appellant's answer to Q45 shows that he did not understand the caution. We do not accept that submission. The appellant's answer to Q45 needs to be understood in the context of Q42 and the manner in which Q45 was interpreted for the appellant. In Q42, the police officers explained the allegation which was the subject of the interview. While the English version of Q45 asked the appellant to explain the caution, the Cantonese interpretation of that question (as re-interpreted into English) asked the appellant to explain his understanding of 'what we just said to you'. The appellant could reasonably have understood the Cantonese question as referring, at least in part, to what had just been said about the allegation. His answer makes sense if the question was understood in that manner.
The expression of the caution in Q46 is interpreted to inform the appellant that 'you don't need to say anything'. When the appellant responds, he says:
[That is, what they ask me, some of them I don't need to say or do anything. Is that right?]
The appellant's counsel submits that the reference to 'some of them' indicates that the appellant understood that he could decline to answer some questions. It did not indicate that he did not need to answer any questions, and the use of the word 'some' indicated the appellant's understanding that he may have been obliged to answer some questions. The trial judge dealt with this argument in the manner noted at [47] - [48] above. We agree with his Honour's approach in that regard.
The appellant's counsel made the point that the appellant never exercised his right to silence in either interview by declining to answer any of the questions posed to him. However, he did exercise other rights of which he was aware, such as the right to attempt to contact a lawyer. The fact that he did not exercise his right to silence is consistent with him appreciating that he had that right and choosing not to exercise it. Failure to exercise a right is not a positive indicator that the appellant did not understand that he had the right.
Taken as a whole, the transcript supports the inference that the appellant understood at all material times that he did not have to answer police questions during the recorded interviews. Further, and significantly, the appellant did not give evidence either in the pre-trial hearing or at trial to the effect that he did not understand the caution. There was no evidence before the trial judge sufficient to support the inference that, despite the appellant saying that he understood the caution, he did not actually do so. That is a fundamental problem for the appellant in the context of the residual discretion, where the onus of proving facts supporting the exercise of the discretion to exclude evidence falls on the appellant.
We do not accept the appellant's submissions that this court should apply the Anunga guidelines to the present case by analogy. The operation of those guidelines in this State is discussed in EYO.[75] They are based on the long experience of the courts in dealing with Aboriginal interviewees. The guidelines are designed in part to address particular linguistic issues, such as differences between 'Aboriginal English' and other English and the difficulty in translating legal concepts into traditional indigenous languages. The guidelines also respond to concerns about common cultural factors which may impact on the reliability of statements made to police, such as deference to authority and a desire to provide the answer which the interviewee thinks the questioner wants to hear. The extent to which the guidelines apply may be affected by factors such as the English language skills, education levels and social experience of the particular person of Aboriginal descent concerned. There was no evidence in the present case that the linguistic issues and cultural considerations which inform the Anunga guidelines are in any way applicable to the appellant.
[75] EYO [54] - [56].
Limited details of the appellant's background were disclosed in his recorded interviews. He was born and lived in Guangdong Province in China, and gave his address in China which was described by the interpreter as 'a village farmland'. He had worked as a fisherman.[76] There was nothing to indicate his level of education. He had the capacity to navigate a large fishing vessel to a particular location off the Western Australian coast, a task which would require some expertise and sophistication. He was at an obvious disadvantage in being interviewed by police in a country with a legal system which would be foreign to him, and in a language he did not speak. However, he was provided with an interpreter who spoke Cantonese, and so was asked and answered questions in his native language. The language issue having been addressed, there was no evidence to indicate that the appellant's capacity to understand and exercise his right to silence was otherwise impeded.
[76] Exhibit 152B (blue and green appeal book, p 121).
Given the language issues, it would have been preferable for the police officers to have obtained a more thorough explanation from the appellant as to his understanding of the caution in his own words. The omission of questions of that nature may have been significant if the appellant had given evidence at the pre-trial hearing that he actually did not understand the caution. An inference, drawn from other evidence, that the appellant did not understand the caution may have been assisted by the absence of an explanation from the appellant at the interviews which more clearly demonstrated an understanding of the caution. However, absence of such explanations does not itself support an inference that, contrary to his answers to leading questions, the appellant did not actually understand the caution.
We note one further matter which influenced the trial judge's conclusion and on which the Crown relied in the appeal. In both interviews, the appellant was given a card with text written in Cantonese, which the appellant said he could read, which was described in the interview as informing the appellant of his legal rights. However, beyond that general description, there was no evidence at trial as to what the cards said, in particular about the appellant's right to silence. We would not give the evidence as to these cards any weight in assessing whether the appellant understood the caution, in the absence of evidence as to the content of the information which the cards conveyed.
For the above reasons, the evidence led at trial did not establish that the appellant failed to understand that he did not have to answer police questions. Further, in our view, the trial judge correctly inferred from the whole of the transcript of both interviews that the appellant understood in both interviews that he did not have to say anything to police.
Once that conclusion is reached, there is, as the appellant's counsel properly accepted, no basis on which the refusal of the trial judge to exercise the court's residual discretion to exclude the evidence of the recorded interviews can be described as unreasonable or plainly unjust. There was no police misconduct. The appellant was cautioned in accordance with s 23F, informed of and afforded his rights under s 23G and given interpreters as required by s 23N of the Crimes Act. He understood that he did not have to answer the officers' questions. There is nothing about his admissions which suggests they were unreliable. The fact that the appellant was in a highly unfamiliar environment, while relevant, does not establish unfairness.

Orders

In our view, neither of the remaining grounds of appeal are reasonably arguable. We would refuse leave to appeal on both ground 1 and ground 3, and dismiss the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Associate to the Honourable Justice Mitchell
6 NOVEMBER 2020