Pong Su (No 2)
[2004] VSC 492
•6 December 2004
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
CRIMINAL DIVISION
No. 1424 of 2004
THE QUEEN v TA SONG WONG
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JUDGE:
KELLAM J.
WHERE HELD:
MELBOURNE
DATE OF RULING:
6 December 2004
CASE MAY BE CITED AS:
In the Matter of the Pong Su (Ruling No. 2)
MEDIUM NEUTRAL CITATION:
[2004] VSC 492
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CRIMINAL LAW – Application for the exclusion of a record of interview and for the exclusion of evidence of the taking of fingerprints – Oppression – Illegality – Crimes Act 1914 (C’wealth) ss.3ZJ, 23WA, 23QI and 23WJ.
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APPEARANCES:
Counsel Solicitors For the Prosecution Mr J. Champion, S.C. with
Mr M.P. CahillThe Solicitor for the Commonwealth Director of Public Prosecutions For Ta Song Wong Mr A.R. Lewis Lethbridges TABLE OF CONTENTS
Background......................................................................................................................................... 1
Submissions on behalf of the accused Wong............................................................................... 2
Submissions on behalf of the Crown............................................................................................. 5
Conclusion........................................................................................................................................... 7
HIS HONOUR:
Background
1 At 6.57 a.m. on 16 April 2003, a Tarago van was intercepted by Federal Agents near Lorne. Two large packages which, upon reasonable grounds, police believed to be heroin were found in the vehicle. One Kiam Fah Teng was found to be driving the vehicle and Chin Kwang Lee was found to be a passenger. They were arrested. Following the arrest of Teng and Lee a search of Boggaley Creek was conducted by Federal Police throughout that and the next day.
2 At about 5.20 p.m. on 17 April 2003, police located an Asian man hiding in dense scrub. He was wet, cold and in a reduced condition. He had no passport upon him nor any other evidence of identity.
3 At approximately 6.30 p.m. that man was taken into custody and taken to Melbourne by Federal Agents Meagher and Robey. They arrived at Australian Federal Police headquarters in Melbourne at approximately 10.30 p.m. After arrival there the man in custody was given the opportunity to speak to a solicitor, Gerard Lethbridge. At 12.30 a.m. on 18 April 2003 at Federal Police Headquarters at Melbourne a record of interview was commenced by Federal Agent Meagher, who at the time held the rank of Detective Constable, and Federal Agent Robey, who at the time held the rank of Constable. A NAATI qualified interpreter was present to interpret in the Mandarin language.
4 The man in custody gave his name as Ta Song Wong. He was informed of his right to silence and he acknowledged his understanding of that. He was told of his right to contact a friend or relative to which he replied that he had no friends this being his “first time here”. The accused acknowledged that he had seen a lawyer and that he was happy to continue with the interview.
5 Federal Agent Meagher observed that Wong appeared tired and that he was not consistently coherent. Meagher held a belief that Wong had been at Boggaley Creek since early morning on 16 April and by reason of his apparent tiredness Meagher advised Wong that he would not continue the interview. Federal Agent Meagher then informed Wong that he intended to take his photograph and his fingerprints to help the police with their investigations and asked if Wong agreed to that being done to which Wong replied that it would be “okay”. Federal Agent Meagher again confirmed with Wong that he would be happy for police to take photographs and fingerprints, to which Wong again replied “Okay.” The interview then ceased.
6 Federal Agent Meagher gave evidence before me that his intention in conducting the short interview and taking the fingerprints was to establish both “the allegation” and Wong’s identity. He stated that he believed that in doing so he was acting in accordance with section 3ZJ of the Crimes Act 1914 (“C’wealth) (“the Act”), which he believed enabled him to take such identification material with the consent of the suspect. He gave evidence that it was because of concern for Wong’s welfare that he ceased the interview.
7 Within minutes of the interview concluding Federal Agent Robey took Wong’s fingerprints. This involved holding Wong’s hand physically, rolling his wrist and placing his fingers on the paper. Throughout this process Wong offered no resistance.
8 Fingerprints identified as those of Wong were found subsequently on the inner cardboard of one of the packages of heroin seized from the back of the Tarago as well as on packages located by police in bushland near Boggaley Creek on 7 May 2003.
Submissions on behalf of the accused man Wong
9 Mr Lewis of Counsel who appears for Wong submits that the evidence of the interview and the evidence of the taking and analysis of Wong’s fingerprints should not be admitted.
10 On the basis that Mr Wong had been exposed to the elements for two days prior to being taken into custody during which time he had no access to food and limited access to water and was found by police to be tired, Mr Lewis submits that it was oppressive of police to conduct the interview and to obtain fingerprints at the time they did.
11 It is further submitted that the fingerprints were illegally obtained as the police failed to comply with the provisions of Division 1 of Part 1D of the Act which deals with the carrying out of forensic procedures. Section 23 WA of the Act defines the taking of fingerprints as a forensic procedure. Sections 23 WI and WJ of the Act outline the information that the suspect must be given in order for consent to be valid. Federal Agent Meagher conceded that those sections were not complied with as the police considered that they were entitled to and were acting in accordance with the provisions of section 3ZJ. Both Federal Agents Meagher and Robey gave evidence that they believed that they were acting properly in accordance with section 3ZJ of the Act when they sought the consent of Wong to the taking of his fingerprints.
12 Section 3ZJ (2), (3) and (4) of the Act provide as follows:
“(2)A constable must not:
(a)take identification material from a person who is in lawful custody in respect of any offence except in accordance with this section; or
(b)require any other person to submit to the taking of identification material, but nothing in this paragraph prevents such a person consenting to the taking of identification material.
(3)If a person is in lawful custody in respect of an offence, a constable who is of the rank of sergeant or higher or who is for the time being in charge of a police station may take identification material from the person, or cause identification material from the person to be taken, if:
(a)the person consents in writing; or
(b)the constable believes on reasonable grounds that it is necessary to do so to:
(i)establish who the person is; or
(ii)identify the person as the person who committed the offence; or
(iii)provide evidence of, or relating to, the offence; or
(c)the constable suspects on reasonable grounds that the person has committed another offence and the identification material is to be taken for the purpose of identifying the person as the person who committed the other offence or of providing evidence of, or relating to, the other offence.
(4)A constable may use such force as is necessary and reasonable in the circumstances to take identification material from a person under this section.”
13 The evidence of Federal Agents Meagher and Robey was that they took fingerprints primarily for the purposes of identification of Wong as there was no other evidence as to his identity, but they acknowledged that the fingerprints could also be used in ascertaining Wong’s involvement in the alleged events of two days earlier. In the interview Federal Agent Meagher informed Wong that his reason for taking the fingerprints was to help “us with our investigations”.
14 Mr Lewis submits that the reason given by Meagher to Wong does not equate to the purpose of identification, as provided by section 3ZJ. Furthermore, he submits that the fingerprints were in fact not used to identify Wong but have been used to provide evidence of commission of the offence. He submits that, given the physical state of Wong the agents needed to be very clear in their explanation to him and if they required the fingerprints for identification purposes they should have told him so. He submits that if the purpose of obtaining the fingerprints was to help the police in their investigations then the relevant section under which fingerprints are to be taken is s.23 of the Act which provides for the undertaking of forensic procedures.
15 In addition, Mr Lewis submits that as neither Federal Agent Meagher nor Federal Agent Robey was of the rank of sergeant or higher that s.3ZJ was not the appropriate section to be relied upon by them and that the provisions of section 23 of the Act ought to have been complied with instead.
16 Accordingly counsel for Wong submits that the fingerprints and those parts of the transcript relating to the fingerprints should be excluded because of the confluence of Wong’s condition, the lack of information given to him about the use that would be made of his fingerprints and the failure of the police to comply with the provisions of ss. 23WA, 23WI and 23WJ of the Act.
Submissions on behalf of the Crown
17 Counsel for the Crown submits that the police were entitled to operate in accordance with section 3ZJ of the Act which falls within Part 1AA, Division 4 of the Act relating to “arrest and related matters”, that being the more appropriate section to be taken into account.
18 It is submitted that the interview was a preliminary one conducted in a manner of apparent fairness where the main concerns of the police were to identify Wong, to obtain information to assist the police in their investigations and for the welfare of the accused. I accept that it is clear from a viewing of the video tape of the record of interview that at all times the intention of Meagher was not to conduct a full interview but to put the basic allegation that he Wong was involved in the importation of heroin, advise him of his rights and to seek his consent to the taking of fingerprints. Indeed in the course of the interview and before any substantive matter relating to the alleged offence was asked of Wong, Meagher said that after consultation with Robey, and the interpreter and the solicitor Mr Lethbridge, he intended not to further question Wong.
19 Federal Agent Meagher considered that he was acting appropriately in accordance with the requirements of section 3ZJ as Wong was a lawful person in custody who was considered a serious offender with no means of identification. Section 3ZJ(3)(a)-(c) provides the power for a constable to take fingerprints in the circumstances therein set out. Counsel for the Crown relies upon language used by Federal Agent Meagher during the interview which he submits supports his evidence that he, Meagher, acted pursuant to section 3ZJ and not under the Forensic Procedure provisions of section 23 of the Act.
20 Counsel for the Crown submits that as the circumstances that faced the police related directly to the arrest of Wong and to the related matter of identification, consent to the taking of fingerprints was sought appropriately within the meaning of section 32ZJ of the Act. The failure of the section to provide for the necessary order of a Magistrate, and in circumstances where the fingerprints may be taken by reasonable force, confirms that the taking of fingerprints pursuant to section 3ZJ is a matter that can lawfully occur entirely within a police station. This is consistent with the object of the provision.
21 The Crown contends that no force was required to take the fingerprints and that Wong, although tired, was able to and did consent to the taking of the fingerprints. The answers he gave to questions were appropriate, mostly timely and, in most cases, able to be understood by the interpreter. Accordingly counsel for the crown submits that the consent was valid and that Federal Agents Meagher and Robey acted in good faith in relying upon that consent in order to take the fingerprints.
22 The significance of the fingerprints to the Crown’s case including the identification of the fingerprints of Wong on the wrappings of the parcels containing heroin render the evidence of high probative value.
23 Finally, Counsel for the Crown submits that even if any illegality or breach of procedure took place there is no unfairness to Wong as a result of the admission of the evidence as:
·The nature of any illegality has not affected the cogency of the evidence;
·The breach, if found to have occurred, was not egregious, nor committed in bad faith to gain an improper advantage. It is submitted that any breach was in the nature of a procedural requirement being overlooked;
·There is no doubt that at some point the fingerprints of Wong would have been taken, and taken lawfully. This was open to have taken place by or on the instruction of a sergeant of police, or person in charge of a police station. Pursuant to section 3ZJ there is no provision for the intervention of a Magistrate in respect of a person in the position of the accused.
Conclusion
24 Section 3ZJ of the Crimes Act 1914 provides for the taking of fingerprints as identification material both in circumstances where an accused person who is in lawful custody consents and where the accused does not consent to the taking of fingerprints. The section provides that a constable of the rank of sergeant or higher or who is for the time being in charge of a police station may take fingerprints if the person consents in writing or if he or she reasonably considers that to do so is necessary to establish who the person is, identify the person who committed the offence or to provide evidence relating to the offence.
25 Section 23 WA the Crimes Act 1914 defines the taking of fingerprints as “a forensic procedure” and sections 23 WF, WI and WJ outline the nature of consent required and the information to be given to the suspect for the consent to be valid, including the right of the suspect to refuse to give fingerprints. It is apparent that this legislation relates to persons who are not in custody as well as to those who are. Although the legislation does include fingerprints as forensic material the sections in question also relate to a number of considerably more invasive procedures. In my view the clear legislative intention in leaving section 3ZJ in the Act when section 23 was later introduced was that certain procedures relating to fingerprints are available to police for identification and the other purposes under section 3ZJ upon arrest and upon taking a person into custody, but that otherwise the procedures under section 23 are to be followed.
26 I accept that at all relevant times Federal Agents Meagher and Robey believed that they were acting lawfully in accordance with the provisions of section 3ZJ in obtaining the consent of Wong to the taking of fingerprints and believed that there was no requirement therefore to involve a constable of the rank of sergeant or above. I accept that had Wong refused to consent to the taking of his fingerprints or had they believed that there was any other need to involve a constable of the rank of sergeant or higher, Federal Agents Meagher and Robey could easily have suspended the interview and readily sought the opinion of a higher ranking officer present within the station or the person in charge of the station. It is to be remembered that the interview took place at Australian Federal Police headquarters.
27 Furthermore, I accept that it was appropriate in the circumstances for fingerprints to be taken, either with consent, or without consent for the purposes set out in s.3ZJ(3)(b) of the Act. The accused man had been found apparently hiding and with no documentation whatsoever upon him. Obviously an endeavour to identify him was required and was justified. However, the police did not comply with the requirements of s.3ZJ. It is clear that Wong was in “lawful custody in respect of an offence” and thus s.3ZJ(2)(a) of the Act required that any identification material be taken only in “accordance with” s.3ZJ of the Act. Mr Champion relies upon s.3ZJ(2)(b) as enabling a person in the position of Wong to consent to the taking of identification material, but as I read that sub-section (or paragraph) it applies only to a person who is a person, other than a person who is in lawful custody, who may consent to the taking of identification material.
28 On that basis the police were required to take the fingerprints only in accordance with s.3ZJ(3) which required a person of the rank of sergeant or higher to take or cause to be taken identification material if the person in lawful custody consented, or if, for the reasons set out, the police officer believed on reasonable grounds it was necessary to do so. Neither Federal Agents Meagher or Robey were of that rank and to that extent there was a failure by them to comply with the legislation.
29 Furthermore, s.3ZJ(3)(a) requires that any consent be in writing. Although the consent was not strictly in writing, quite clearly the intention of the legislation, of providing proof of such consent, was met by the videotaping of both the interview and the request for provision of the fingerprints.
30 Accordingly, in my view, any illegality relates to the failure of Federal Agents Meagher and Robey to ensure that a person of the rank of sergeant or higher or who was the person in charge of the police station took or caused the taking of the identification material.
31 As stated above, I am satisfied that Federal Police in all the circumstances had reasonable grounds to believe that it was necessary to obtain fingerprints from the accused Wong in an endeavour to establish his identity and/or to identify him as a person who committed the offence and/or to provide evidence relating to the offence. I am satisfied that in all the circumstances they behaved properly in putting their request for the provision of fingerprints to the accused by way of a brief interview recorded by videotape after the accused man had obtained legal advice. I am satisfied, having reviewed the videotape of the record of interview that the accused man clearly understood the nature of the request made and that he consented to the provision of his fingerprints. I do not accept the submission of Mr Lewis that the circumstances under which the request was made were oppressive. In my view, any breach of the requirements of s.3ZJ was not egregious, or in bad faith, or grounded in malice. At the most any breach was a failure to comply with a procedural requirement. In all the circumstances there is no basis to exercise my discretion to exclude the evidence of either the record of interview or the taking and analysis of the fingerprints.
32 It is appropriate to add that even if my conclusion was that the police were required to follow the requirements of Division 1 of Part 1D of the Act, the failure to do so would in the circumstances before me nevertheless not in my view amount to a serious or flagrant disregard of the law and would not call for the exercise by me of the Bunning v Cross[1] discretion to exclude the evidence.
[1](1978) 141 CLR 54.
33 It follows that the application by the accused Wong to exclude the evidence of his record of interview of 18 April 2003 and the evidence of fingerprints taken soon thereafter is dismissed.
34 Bearing in mind the high probative value of the evidence, there is no doubt that had the fingerprints not been obtained by Federal Agents Meagher and Robey at the conclusion of the interview on 18 April 2003, they would have been lawfully obtained at some subsequent stage.
35 I accept the submission on behalf of the Crown that Federal Agents Meagher and Robey were entitled to consider that they were acting under section 3ZJ of the Crimes Act 1914 and that they were entitled to take steps to identify the suspect who was in lawful custody at the time. Any omission or failure to comply fully with the requirements of that section was not malicious or intended to obtain an advantage by the agents. There was no deliberate attempt by the police to exceed their authority and the nature of the illegality does not affect the cogency of the evidence.
36 Whilst they were of the opinion that Wong had an adequate grasp of their intention to take his fingerprints as a means of identification and to help in their investigations and justifiably so in my view, it was clear that the police were conscious of Wong’s tired state and took no steps to take advantage of that state to enter any lengthy form of questioning.
37 Accordingly the application to exclude evidence of the fingerprints that were taken from Wong and that part of the interview that pertains to those fingerprints is dismissed.
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