Pong Su (No 3)
[2004] VSC 493
•6 December 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1424 of 2004
| THE QUEEN |
| v |
| YAU KIM LAM |
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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. 3) | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 493 | |
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CRIMINAL LAW – Application for the exclusion of record of interview on the grounds of illegality, unfairness and involuntariness – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Champion, S.C. | The Solicitor for the Commonwealth Director of Public Prosecutions |
| For Yau Kim Lam | Mr G. Meredith | Tony Danos |
TABLE OF CONTENTS
Background......................................................................................................................................... 2
Submissions on behalf of the accused Lam.................................................................................. 5
Submissions on behalf of the Crown............................................................................................. 8
Issue 1 – Intervention by Victorian Homicide Squad............................................................ 10
Issue 2 – Persistent questioning by the Police........................................................................ 10
Issue 3 – Understanding of Right to Silence........................................................................... 10
HIS HONOUR:
Background
The prosecution case is that the accused men Yau Kim Lam and Kiam Fah Teng arrived at Sydney airport from Beijing on 27 March 2003. The prosecution intends to call evidence that the two men were associated immediately prior to their journey to Australia.
It is alleged that the accused Teng rented a Tarago van from Europcar Geelong on 31 March 2003 and that Lam and Teng were subsequently observed by police to be together in the vehicle
At 6.57 a.m. on 16 April 2003, a Tarago van was intercepted by Federal Agents near Lorne. Two large packages were found in the vehicle. Upon reasonable grounds police believed them to be heroin. The accused Teng was found to be driving the vehicle and the accused Chin Kwang Lee was found to be a passenger. They were arrested.
At about 1.55 p.m. on the same day a blue Ford Focus motor car travelling along the Princes Highway towards Melbourne was intercepted by members of the Australian Federal Police. The accused Lam was the driver and sole occupier of the vehicle. The accused Lam was arrested and taken to Australian Federal Police headquarters where he arrived at approximately 2.40 p.m.
A search of the vehicle was conducted at about 4.30 p.m. Various items including a passport, Europcar rental documents and a mobile phone were seized.
On 16 April 2003 a search of Room 1106 of the Crown Towers Hotel at Southbank was conducted by members of the Australian Federal Police and various items, including travel documents in the name of Yau Kim Lam, were seized.
At 3.36 p.m. on 16 April 2003 at Federal Police Headquarters at Melbourne an interview was commenced by Federal Agent Woolard and Federal Agent Beckensall with Lam. A NAATI qualified interpreter, Ms Huang, was present to interpret in the Mandarin language. The interview (described as a “record of conversation” by police) was recorded but not videotaped. In the course of the so-called record of conversation the allegation was put to the accused Lam that he had been involved in the importation of heroin into Australia and then the accused Lam was informed by Federal Agent Woolard of his right not to say anything in response to questions being asked of him by the Federal Agents. The caution was repeated several times in different forms by Federal Agent Woolard before the accused Lam, when question 8 was put to him, responded that he did understand. The record of conversation was concluded at 3.46 p.m.
At 4.35 p.m. the accused Lam was taken to another room where the Victorian Homicide Squad requested he change his clothes to enable his clothes to be taken as part of the investigations by Victorian police in relation to the finding of a dead body on the beach near Boggaley Creek. It was the evidence of Federal Agent Beckensall that this took approximately 11 minutes.
The record of interview between Federal Agents Woolard and Beckensall and the accused Lam was recommenced at 5.11 p.m. on 16 April 2003. Ms Huang was again present to interpret in the Mandarin language. In questions 3,4,5,6 and 7 the allegation was put to the accused Lam that he was involved in aiding and abetting the importation of heroin into Australia. On each occasion the accused Lam indicated that he was not clear or did not understand what was being said.
He was subsequently informed by Federal Agent Woolard of his right not to answer any further questions and cautioned that what he said was being recorded. In response to question 10 he said he understood but subsequently, in response to question 11, queried whether it meant “not answering the questions or answering your questions.” In subsequent responses to Federal Agent Woolard’s questions 11 and 12 the accused appeared unclear as to what the caution meant.
Federal Agent Beckensall then explained at question 14 that the accused Lam could choose not to answer questions to which he, Lam, replied that he did not want to answer questions. Federal Agent Woolard informed the accused Lam of his right to speak to a friend or relative and a lawyer. The accused Lam stated in response that he did not want to answer and that he still did not understand. He was then asked if he had remembered speaking to a lawyer through the interpreter to which he answered, “Yes”. He was then asked whether he could recall who the lawyer was and he replied, “No comment”.
The accused Lam was then asked a series of questions between questions 22 and 46 by Federal Agent Woolard. Lam answered those questions. At question 48 he was asked about his income and he said, “Do I have to answer this question?” He was told he did not and then he was asked further questions which he answered. Finally, at question 86, Lam asked whether he had to answer a question as to where he had met Teng, and subsequently asked “the difference of not answering a question or answering.” The accused Lam then queried “What’s the benefit?”, to which Federal Agent Woolard replied that there was no benefit. Federal Agent Woolard confirmed with the accused Lam that he had received legal advice (when he was answering question 92). The accused Lam stated “Yeah, I understand.”
Federal Agent Woolard continued to ask several questions about the accused Lam’s knowledge of the accused Teng before Lam said, “Can’t I wait till I find a lawyer?” The record of interview was suspended.
Evidence was given before me that during the suspension of the record of interview there was further discussion about the right of the accused Lam not to answer questions put to him by the Federal Agents. The accused Lam agreed with Federal Agent Woolard that it had been explained to him that if he did not wish to answer a question they would move onto the next question until the interview was finished. The record of interview was resumed at 6.10 p.m. on 16 April 2003. None of this discussion was recorded. Federal Agent Beckensall then confirmed at question 108 with the accused Lam that she had told him that saying no comment was of no prejudice to him.
The accused Lam then replied “no comment” in answer to questions 110 to 117, again from question118 to question 136 and again from question 140, with insignificant variation, until the end of the questioning.
Submissions on behalf of the accused Lam
Mr Meredith of Counsel for the accused Lam submits that the interview ought to be excluded on three grounds. First that the accused Lam’s detention became unlawful when the Victorian Homicide Squad intervened to interview him in relation to an offence that was not a Commonwealth offence. Secondly, on the ground of unfairness that arose from persistent questioning by the Federal Agents after the accused Lam had indicated that he did not want to answer any further questions in relation to the importation of heroin. Thirdly, on the ground that any admissions made by the accused were not voluntary due to his imperfect understanding of his right to silence.
The accused was arrested in accordance with section 233 B of the Customs Act on a charge of importing heroin into Australia. On arrest for a Commonwealth offence, s.23 C of the Crimes Act 1914 provides”
(2)The person may be detained for the purpose of investigating either or both of the following:
(a)whether the person committed the offence;
(b)whether the person committed another Commonwealth offence that an investigating official reasonably suspects the person to have committed; but must not be detained for that purpose; or for purposes that include that purpose, after the end of the investigation period prescribed by this section.
(3)The person must be
(a)released…; or
(b)brought before a judicial officer within that period.
It is submitted by Counsel for the accused that the investigation of Lam by the Victorian Homicide Squad for an offence that is not a Commonwealth offence, during the time of the break between the record of conversation and the record of interview, involved the detention of Lam for a purpose beyond the scope mandated in section 23 C. Accordingly, it is submitted that his detention in custody became illegal from the time of the intervention until the time of his lawful remand in custody.
The second submission made on behalf of the accused Lam is that after he responded “I don’t want to answer” to question 14 of the Record of Interview in relation to questions about the importation of heroin, it was improper of the interrogators to persist in questioning him.
Counsel for the accused submits that the persistent questioning ought to cause the admissions made by the accused Lam to be excluded in accordance with the judicial discretion to exclude evidence otherwise admissible because of the unfairness of the manner of its discovery[1]. It is submitted that the persistent questioning led to unfairness which ought trigger the exclusion of the interview. It is further submitted that the questioning was such that it “crossed the line” and rendered the interview involuntary.
[1]The Queen v Ireland [1971-1972] 126 CLR 321 at 333.
At question 106 Federal Agent Woolard stated to the accused Lam that the interrogation would continue even in the face of Lam’s indication that he did not want to answer any questions. He said, referring to a discussion which had taken place in the absence of recording, “ … do you agree that if you did not want to answer a question we’ll move on to the next question until the interview is finished?” The answer of Lam was, “Yes”. However, immediately thereafter he answered “no comment” to every question asked.
In R v Robinson[2], which concerned an application on similar grounds, the Court of Appeal noted the questioning of a suspect “in total disregard of his strongly expressed wish to terminate the interview” with questions that were unfairly formulated “constituted departure from proper interrogation standards which ‘ clearly possessed the potential of overbearing the will of the applicant or of rendering the admission of statements made by him unfair or subject to an exclusion as an expression of public policy.’” Counsel for the accused submits that admissions made by the accused Lam ought to be excluded on similar grounds.
[2][1998] 1 VR 570 at 583.
Thirdly, it is submitted on behalf of the accused Lam that he had an imperfect understanding of his right to silence and that that should have been apparent to his interrogators. Accordingly, the record of interview ought not to be admissible on the ground that it was not voluntary.
Mr Meredith submits that the right to silence is hardly an aid to the accused if he has not had the right explained to him or if the interview is not conducted in a manner that makes the right intelligible to him or if he does not possess an understanding of the exercise of the right.
Counsel made reference to the decision in R v Li[3] where His Honour Justice Coldrey said:
“The breadth of the concept of voluntariness is often misunderstood. In my view it extends to and encompasses the situation where answers are given by an accused person who lacks understanding that such questions need not be answered, and, as a result, feels compelled to participate in the interview process. In such circumstances the interview will be non-voluntary.”
[3][1993] 2 VR 80 at 87.
Counsel for the accused Lam submits that his responses of “Do I have to answer?” at question 15 and “what do you mean?” demonstrate a lack of understanding. It is further submitted that his responses of “yeah” and “yes” when queried about whether he understood his rights at question 10 and 19 do not show substantively that he did understand those rights.
At questions 86 –89 the accused Lam’s answers indicate his confusion as to his entitlement to silence and of the benefit that it might be to him. This was not clarified by either of his interrogators but rather, it is submitted by Counsel for the accused Lam, it was misrepresented to him that there was no benefit to be had by exercising his right to silence.
Counsel relies upon the evidence of the interpreter, Ms Huang, which was that the accused might have been a bit confused about his right to silence during the interview.
Accordingly, it is submitted that voluntariness is in issue as the accused Lam had an imperfect understanding of his right to silence and that that fact should have been apparent to his interrogator.
Submissions on behalf of the Crown
Counsel for the Crown submits that at all times whilst the accused Lam was at Australian Federal Police headquarters he was lawfully detained within the provisions of section 23C of the Crimes Act 1914 for the purposes of investigating whether he had committed a Commonwealth offence. That lawfulness was not vitiated by the short interruption of approximately 11 minutes whilst he was having his clothes taken by the Victorian Homicide Squad detective. Even if there were some unlawfulness about the interruption, it is submitted that it was not of such a nature as to excite the exercise of judicial discretion aimed at protecting an accused person from procedural or substantive unfairness (Bunning v Cross (1978) 141 CLR 54).
As to the second ground that it would be unfair to admit the accused Lam’s answers against him because he had given an indication to police that he did not want to answer any further questions, the Crown submits that the police do not have to accept the first answer given, but are entitled to ask further questions.
In this regard Counsel for the Crown referred to R v Smith [1964] V.R. 95 at 97 where it was observed that:
“The questions which were addressed to him by the police may have been a little persistent in respect of certain matters, but it seems to me that it is the duty of the police to ascertain facts which bear upon the commission of a crime … and they are not bound to accept the first answer that is made, as long as they do not carry the investigation to a point of impropriety in the sense of bringing pressure to bear upon the accused or bringing about an unfair or unreliable result.”
Counsel submits that R v Ireland stands for the proposition that such a circumstance is one for the Court to consider in the exercise of its discretion but that it does not require the Court to exclude the interview as unfair. It is further submitted that the procedure involved in R v Ireland was a particular South Australian procedure relating to police questioning and that it should not be applied as a rule of thumb.
It is submitted that whilst the Federal Agents were somewhat persistent in the continued questioning of the accused Lam, that persistence did not “cross the line” and overbear the will of the accused Lam so as to render it unfair to use the answers in evidence.
In relation to the third submission regarding the understanding of the accused Lam of his right to silence, Counsel for the Crown distinguished the matter of in R v Li [1993] 2 V.R. 80 on the basis that the boy who was interrogated in that matter had limited understanding of English and was interviewed without the assistance of an interpreter. It was noted that the accused Lam did have the assistance of an interpreter.
It is submitted that answers given by the accused Lam demonstrate clearly that he did have the requisite understanding of his right to remain silent as well as his right to communicate with a friend or relative or a legal representative. At both question 8 of the record of conversation and question 10 of the record of interview he expressly acknowledged that he understood the caution.
Furthermore, the prosecution submits that the probative value of the answers given by the accused Lam are such that it is open to infer that there may have been some gamesmanship on his part and that he may have been seeking to buy time when being asked about his association with Teng.
Accordingly it is submitted that the answers were made voluntarily and that Lam did understand the caution that had been given to him and chose to answer some questions and not others.
Issue 1 – Intervention by Victorian Homicide Squad
I am not satisfied that the intervention by the Victorian Homicide Squad for the period of approximately 11 minutes was sufficient to render the subsequent remand of the accused Lam unlawful. I do not consider there was any malice on the part of the police nor do I consider that the accused Lam suffered any procedural or substantive unfairness as a result of the interruption. Accordingly, even if such an interrogation was of relevance to the period of custody I do not consider that any illegality is such that I should exercise my discretion to exclude the Record of Interview.
Issue 2 – Persistent questioning by the Police
In response to questions 14 and 16 the accused Lam made it clear that he did not wish to answer any further questions relating to the importation of heroin. In spite of this Federal Agents Woolard and Beckensall continued to question him. At question 106 Federal Agent Woolard indicated to the accused Lam that the interrogation would continue even in the face of Lam’s indication that he did not want to answer any further questions.
I accept the submission for the Crown that, in spite of expression by the accused of a desire not to answer any further questions, the police do not have to accept the first answer but are entitled to continue to put questions to the accused (R v Smith [1964] V.R. 95).
I do not consider that the continued questioning was so unfair as to constitute a departure from proper interrogation standards which “clearly possessed the potential of overbearing the will of the applicant or of rendering the admission of statements made by him unfair or subject to an exclusion as an expression of public policy.” (R v Robinson [1998] 1 VR 570 at 583)
Issue 3 – Understanding of Right to Silence
Answers given by the accused Lam to questions about his understanding of his right to silence included “Do I have to answer?”, “I still don’t understand” , “what’s the difference of not answering a question or answering” and “What’s the benefit?” appear to indicate a lack of clear understanding of his right to silence.
It was apparent to the interpreter that Lam was not clear in his understanding of his right to silence. In the circumstances it ought to have been apparent to his interrogators, both of whom had considerable experience in interrogation, that he might not have been clear in his understanding of his right to silence.
It was therefore incumbent on his interrogators to attempt to ensure that he did understand the right to silence. This might readily have been ascertained by adopting what both Federal Agents gave in evidence as the reasonably common technique of asking the accused to explain the right in his own words. It might also have been achieved by using less complicated language. Had this been done the Crown might have been able to establish that Lam was engaged in gamesmanship. However, I do not accept the submission on behalf of the Crown that the apparent lack of understanding by Lam of his right to silence and his questions about the benefit of not answering amounted to gamesmanship on his part. Accordingly, when the accused Lam queried the benefit to him of not answering questions, the response of Federal Agent Woolard that there was no benefit, was misleading. The accused Lam ought appropriately to have had his right to silence explained to him again at that point, rather than it being assumed that he was attempting to gain an advantage.
The only time when it appears that the accused Lam may have had an understanding about his right to silence was following the resumption of the record of interview at 6.10 p.m. on 16 April 2003. At that point the accused Lam agreed with Federal Agent Woolard that it had been explained to him that if he did not wish to answer a question that they would move onto the next question until the interview was finished. Federal Agent Beckensall then confirmed at question 108 with the accused Lam that she had told him that saying no comment is of no prejudice to him. From that point the accused Lam replied “no comment”, with insignificant variation, until the end of the questioning.
The Crown bears the onus of proving voluntariness. I am not satisfied that the accused Lam had a sufficient understanding of his right to silence to enable him to determine when he should answer questions and when he should provide no comment. It appears that at times he felt compelled to answer questions which had he fully understood his right to remain silent he might not have answered. His participation in the interview was not consistently voluntary.
Accordingly the application to exclude the record of interview in exercise of the fairness discretion is granted.
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