R v Cho - [2001] QCA 196

SUPREME COURT OF QUEENSLAND

CITATION: R v Cho [2001] QCA 196

PARTIES: R
v
CHO, Kwok Gein
(appellant)

FILE NO/S: CA No 1 of 2001
SC No 196 of 2000

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON: 25 May 2001

DELIVERED AT: Brisbane

HEARING DATE: 11 May 2001

JUDGES: de Jersey CJ, Williams JA and Mackenzie J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

ORDER: Appeal against conviction dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – appeal against conviction of murder – where an interpreter was not present during the police interview – whether during the voir dire the Trial Division judge applied “proper” principles in exercising his discretion to include the police video-taped record of interview – whether there was a “fair trial” – whether there was non-compliance with the Police Powers and Responsibilities Act 1992 (Qld).

Criminal Code s 592A
Police Powers and Responsibilities Act 1992 (Qld) s 4, s 5, s 8, s 101, s 260, s 249.

R v Li [1993] 2 VR 80; considered

COUNSEL: WJ Cuthbert for the appellant
PF Rutledge for the respondent

SOLICITORS: Witheriff Nyst Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

de JERSEY CJ: I have had the advantage of reading the reasons for judgment of Mackenzie J. I agree, for the reasons His Honour gives, that the appeal should be dismissed.

WILLIAMS JA: For the reasons given by Mackenzie J, I agree that this appeal should be dismissed.

MACKENZIE J: This is an appeal against conviction of murder. The ground of appeal essentially was that a video-taped record of interview should have been excluded had proper principles been applied by the judge of the Trial Division who conducted a hearing under s 592A of the Criminal Code. Leave was given to amend the ground of appeal by particularising further the basic premise that the judge had erred in his interpretation of what was then s 101 of the Police Powers and Responsibilities Act 1992 (Qld) and is now s 260. It will be more convenient, since any effect of this judgment will be prospective, to refer to the section as s 260.

The provision is as follows:

"260(1) This section applies if a police officer reasonably suspects a relevant person is unable, because of inadequate knowledge of the English language or a physical disability, to speak with reasonable fluency in English.
(2) Before starting to question the person, the police officer must arrange for the presence of an interpreter and delay the questioning or investigation until the interpreter is present.
(3) ... ."

It is in Pt 3 of the Act entitled "Safeguards ensuring the rights of and fairness to persons questioned for indictable offences". Section 4 sets out the purposes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Cho

Details

AGLC: R v Cho [2001] QCA 196
Case: [2001] QCA 196
Decision Date: 25 May 2001

CaseChat Overview and Summary

The appellant, Cho, sought an appeal against his conviction for murder, which was based on the improper admission of evidence during his trial. The matter was heard by the Court of Appeal, which included members of the Supreme Court of Queensland. The appellant contended that the trial judge had erred in allowing the admission of a video-taped police interview, as he had not been provided with an interpreter during the interview. This issue was raised in the context of the appellant's right to a fair trial under the Constitution Act 1982 (Qld), and the non-compliance with the Police Powers and Responsibilities Act 1992 (Qld).

The court was required to decide whether the trial judge had correctly exercised his discretion in admitting the video-taped police interview as evidence, and whether the appellant's right to a fair trial had been compromised. The court considered whether the trial judge had applied the appropriate principles in determining the admissibility of the evidence, and whether there was any prejudice to the appellant in the absence of an interpreter during the interview. The court also examined whether the failure to provide an interpreter during the police interview amounted to non-compliance with the Police Powers and Responsibilities Act 1992 (Qld).

The court found that the trial judge had exercised his discretion correctly in admitting the video-taped police interview as evidence, and that the appellant's right to a fair trial had not been compromised. The court held that the trial judge had considered the appropriate principles in determining the admissibility of the evidence, and had found that there was no prejudice to the appellant in the absence of an interpreter during the interview. The court also held that the failure to provide an interpreter during the police interview did not amount to non-compliance with the Police Powers and Responsibilities Act 1992 (Qld). The court therefore dismissed the appeal against conviction.

The court did not make any further orders in relation to the appeal. The conviction for murder remained in place, and the appellant's sentence was not altered. The court's decision was based on its finding that the trial judge had correctly exercised his discretion in admitting the video-taped police interview as evidence, and that the appellant's right to a fair trial had not been compromised. The court held that there was no basis for granting the appellant a new trial or an inquiry after conviction.

Orders

Orders of the court

Appeal against conviction dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Cho [2001] QCA 196
PARTIES:	R v CHO, Kwok Gein (appellant)
FILE NO/S:	CA No 1 of 2001 SC No 196 of 2000
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	25 May 2001
DELIVERED AT:	Brisbane
HEARING DATE:	11 May 2001
JUDGES:	de Jersey CJ, Williams JA and Mackenzie J Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
ORDER:	Appeal against conviction dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – appeal against conviction of murder – where an interpreter was not present during the police interview – whether during the voir dire the Trial Division judge applied “proper” principles in exercising his discretion to include the police video-taped record of interview – whether there was a “fair trial” – whether there was non-compliance with the Police Powers and Responsibilities Act 1992 (Qld). Criminal Code s 592A Police Powers and Responsibilities Act 1992 (Qld) s 4, s 5, s 8, s 101, s 260, s 249. R v Li [1993] 2 VR 80; considered
COUNSEL:	WJ Cuthbert for the appellant PF Rutledge for the respondent
SOLICITORS:	Witheriff Nyst Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent