R v Dung Ngoc Nguyen
[2000] QSC 265
•10 July 2000
SUPREME COURT OF QUEENSLAND
CITATION: R v DUNG NGOC NGUYEN [2000] QSC 265 PARTIES: THE QUEEN
v
DUNG NGOC NGUYENFILE NO: 93 of 2000 DIVISION: Trial Division DELIVERED ON: 10 July 2000 DELIVERED AT: Brisbane HEARING DATE: 15, 23 June 2000 JUDGE: Mackenzie J ORDER: 1. I rule that the confession may be admitted in evidence. CATCHWORDS: CRIMINAL LAW - EVIDENCE - ADMISSIBILITY - questioning by police officer - accused’s willingness to participate in record of interview - judicial discretion - failure to electronically record conversation - failure to warn accused - right to have solicitor present
Police Powers and Responsibilities Act (Qld) 1997, s5, s7, s93, s95, s99, s103, s106
Criminal Code s 592A
Police Responsibilities Code, s 66(2)(3)(4)MacPherson v The Queen (1981) 147 CLR 512
R v Lee (1980) 82 CLR 133
Wendo v The Queen (1963) 109 CLR 589COUNSEL: D Lynch for the accused
P Smid for the CrownSOLICITORS: Legal Aid Ipswich for the accused
Queensland Director of Public Prosecutions for the Crown
MACKENZIE J: This is an application under s592A of the Criminal Code for a ruling as to the admissibility of evidence. Specifically challenged is questioning by Plain Clothes Constable Hartley as to the accused's willingness to participate in a record of interview and the subsequent record interview.
Briefly, the facts are that after attending a briefing concerning a suspected murder with regard to which police had been given information by a person who was by then under arrest, Detective White attended an address at Darra. While he was there he saw a vehicle of interest going past. He intercepted it a short distance away at 12.25 pm. The accused was a passenger. Detective Smith obtained his particulars and informed him that he wanted to interview him regarding the death of the man whose body had been found. They went back to the residence at Darra where Detective Smith spoke to other police and they then went back to Goodna Police Station.
After arriving there Detective Smith spoke to P.C.C. Hartley who is attached to the Asian Taskforce and has studied Vietnamese language and culture. At about 4.20 pm P.C.C. Hartley spoke to the accused. According to him it was principally to ascertain if he was prepared to be interviewed although there may also have been conversation designed to make the accused comfortable in the surroundings of the police station. There is evidence that suggests that it is one of the roles or functions of the Asian Taskforce to overcome perceptions of the police that may be held by migrants from Vietnam arising from the differences between police practices under the Vietnamese and Australian systems.
P.C.C. Hartley denied that the purpose of putting him at ease was to make him more amenable to participating in an interview. P.C.C. Hartley agreed that he did not explain the accused's rights to him at that time. The conversation was not recorded electronically or otherwise.
While Mr Lynch asked for this conversation to be excluded on the ground that the Police Powers and Responsibilities Act had not been complied with, his position was that if the electronically recorded record of interview was admitted he would wish P.C.C. Hartley's evidence to be led. He accepted that his position was that both P.C.C. Hartley's conversation and the electronic record of interview should be excluded but if the record of interview was admitted so should P.C.C. Hartley's evidence.
The record of interview commenced at 5 pm and was conducted by Detective White through an interpreter in the presence of P.C.C. Hartley. P.C.C. Hartley did not profess to understand everything that was said in Vietnamese during the interview due to the speed at which it was spoken but claimed comprehension of 60-70% of it. With recourse to the transcript of the record of interview he was questioned about aspects of passages where the accused's rights were explained to him. From his evidence it seems apparent that the familiar problems with translations, of differences between literal and idiomatic versions of foreign words and expressions, and the consequent difficulty with shades of meaning may arise at the trial.
It may also be observed that the transcript shows that the process of conducting the interview had other complexities. The transcript records the Vietnamese words spoken and gives what purports to be an exact translation into English of what was said in Vietnamese by the translator and the accused. The transcript also includes what was actually said in English by the translator to the police officers by way of relaying the accused's Vietnamese answers. This is often a paraphrase of what was said, which is in itself an unsatisfactory way of doing things and contrary to what should be done by a translator for the purposes of an interview of this kind.
Leaving out the Vietnamese text the relevant passage of the record of interview before questioning about the offence began is as follows:
"WHITE:Okay. Ah Dung are you happy to have ah Mr Don HOANG present as an Interpreter during this interview?
INTERPRETER: Is this interview today, do you wish to use me as your interpreter.
NGUYEN:Yes, I do.
INTERPRETER; Yes I do.
WHITE:Okay Dung now ah just before I, I ask you any further questions ah I'm obliged to warn you that you're not obliged to make any statement.
INTERPRETER: During the interview, I'm telling you first that you have the right not to make any statement.
WHITE:Or answer any questions.
INTERPRETER: Or
WHITE:Or answer any questions
INTERPRETER: ask any questions
WHITE:As anything that you do say
INTERPRETER: ...anything that you say here will be recorded
WHITE:Is being recorded.
WHITE:And may later be tendered as evidence in a court of law.
INTERPRETER: ... and will be used as witnesses in court
WHITE:Do you understand?
INTERPRETER: ...do you understand
NGUYEN:Yes I do.
INTERPRETER: Yeah I do
WHITE:Um I'm also obliged to warn you that you have the right to remain silent.
INTERPRETER: And I'm also telling you that you have the right to remain silent ...
WHITE:You have the right to contact a solicitor.
INTERPRETER: you have the right to call a solicitor ...
WHITE:You also have the right to contact a interview friend to be present during the interview if you wish.
INTERPRETER: and you have the right to call a friend for moral support during the interview if you wish ...
WHITE:Do you understand?
INTERPRETER: do you understand.
NGUYEN:I understand.
INTERPRETER: Yes I do.
WHITE:Do you wish to have a solicitor or any other person present during this interview?
INTERPRETER: Do you want to have a solicitor present or your friends present at this interview today?
NGUYEN:I don't have a solicitor, whether my friends have a solicitor or not I don't know, the friends who were arrested together with me, whether they have a solicitor or not I don't know because I don't have a solicitor.
INTERPRETER: Ah I don't have any solicitor. I have friend. My friend has solicitor but I don't know about it.
WHITE:Are you happy to be interviewed without a solicitor or another, another interview friend present?
INTERPRETER: Are you.
WHITE:Are you happy to be interviewed without a solicitor or another interview friend?
INTERPRETER: You, do you want an interview today without a solicitor or your friends, do you agree.
NGUYEN:Agree
INTERPRETER: Yes."
At the end of the record of interview Detective White obtained an acknowledgment by the accused that he had been warned at the commencement of the interview that he had the right not to make a statement or answer questions as the interview was being recorded and would be used in evidence. He also acknowledged that he was told of his right to remain silent. With respect to the right to a solicitor the following passage was focused upon by Mr Lynch:
"NGUYEN: Yeah.
WHITE:And you don't want anybody else to be present during the interview.
INTERPRETER: And
WHITE:And he didn't want anybody else to be present during the interview.
INTERPRETER: But you do not wish anyone, solicitor or a friend here ...
NGUYEN:Yes. I don't have a solicitor now.
INTERPRETER: I don't have any solicitor.
WHITE:But he didn't, you were quite happy to continue with the interview without a solicitor?
INTERPRETER: But you still wanted to participate in the interview without a solicitor, right.
NGUYEN:Yeah."
The grounds relied on by Mr Lynch were that the evidence should be excluded because there had been non-compliance with the Police Powers and Responsibilities Act in several respects and that in all of the circumstances it was unfair to admit the evidence against the accused with the consequence that it should be excluded in the exercise of the judicial discretion.
The Police Powers and Responsibilities Act does not affect the common law with respect to discretionary exclusion of evidence (s7). According to s5 it is Parliament's intention that a police officer should comply with the Act in exercising powers and performing responsibilities under it, and that sanctions apply for contraventions. These may be disciplinary or criminal depending on the circumstances, according to the examples appended to the section.
The first allegation of breach of the Police Powers and Responsibilities Act was a breach of s103 by failing to record electronically the conversation between Detective Smith and the accused at the time the accused was apprehended in the motor vehicle. This was not electronically recorded. Detective Smith did not have a tape recorder with him at the time. This submission proceeds on a misapprehension since s103 is concerned with recording information given to the accused where there is an obligation under division 3 of Pt 12 of the Act to give information. There is no obligation imposed to record an accused's apprehension under that division or elsewhere. There is therefore nothing in that point.
The second relates to P.C.C. Hartley's inquiry whether the accused was prepared to take part in an interview. It was submitted that this was not in compliance with s103 because it was not recorded and not in compliance with s99 because no warning was given to the accused. Mr Smid was prepared to concede that there were contraventions of the Act. Although the question was not directly asked, it is probable that at the time the inquiry was made P.C.C. Hartley expected to be present during the interview with the accused. In the circumstances there appears to be sufficient nexus with the commencement of questioning with respect to the murder to require the inquiry as to the willingness to participate to be coupled with an explanation of the accused's rights.
I am not satisfied that the approach was made out of any sinister motive in this case. It can be accepted that the cultural differences between some overseas countries and Australia may make it appropriate for suspects who are not familiar with the system to be treated in a way which does not make them feel threatened and helps them understand how it operates. However, since the process of speaking to persons who are suspects is capable of being misused if someone were minded to do so and lays an officer open to allegations being made against him if the process is not transparent, it is extremely prudent that any steps taken to try to put the suspect at ease are electronically recorded so that the transparency of the process can be determined on the basis of objective evidence. This is especially so if the contact occurs in the period when the suspect is at a police station and is expected to be interviewed in connection with the alleged offence while he or she is there.
Where, in a situation like that, an inquiry is made whether a person wishes to participate in an interview, steps should be taken to ensure that the accused person is fully aware of his rights and options contemporaneously with the request being made. It is noted that there is nothing probative in what was said during that interview, so in that sense, admission into evidence is really at the option of the defence if admission for tactical reasons is desired.
The main thrust of the application was that the passages quoted above indicated that the accused did not understand his right to have a solicitor present. One of the obligations in s95 of the Police Powers and Responsibilities Act is to inform the person of the right to telephone or speak to a friend or relative and ask the person to be present or to telephone or speak to a lawyer and arrange or try to arrange for that person to be present.
Section 66(1) of the Police Responsibilities Code sets out the requirements of what must be substantially conveyed to the accused person. There is also provision, in permissive terms, where a police officer reasonably suspects the person does not understand the advice for the officer to ask the person to explain the meaning of the advice in his or her own words (P.R.C. s66(2)) and an obligation to further explain the advice if necessary (P.R.C. s66(3)). It was not suggested that any of the exceptions in s106 of the Police Powers and Responsibilities Act applied.
In the first passage quoted above, the accused acknowledged that he understood that that he had the right to call a solicitor or call a friend for moral support during the interview. The next passage is that which Mr Lynch particularly relied on. The fact that the accused said that he did not have a solicitor was conveyed by the interpreter to the police. The next question by Detective White was "Are you happy to be interviewed without a solicitor or another interview friend?". The interpreter conveyed that to the accused as "You, do you want an interview today without a solicitor or your friends, do you agree?" and the accused then agreed. The passage at the end of the record of interview returned to the notion that he did not have a solicitor but then put the proposition to the accused "But you still wanted to participate in the interview without a solicitor, right?" to which the applicant replied "Yeah".
There are three additional elements to the matter. The first is the accused was not called to give evidence and therefore there is no direct evidence that he did not understand that he had the right to contact a solicitor. The second is that Detective White was not cross-examined, except perfunctorily, with a view to establishing that he suspected that the accused had not understood the advice. All that was put to him was one question, with which he agreed, to the effect that he would say that he was satisfied that he understood he could contact a solicitor if he wished. P.C.C. Hartley, as indicated below, thought that the accused had clearly understood this right. The third is that the accused has a criminal record of significant proportions. Questioning with regard to those offences on a number of occasions should have made the accused familiar with the format of police questioning and with the notion that he had the right to silence. It may be that those questionings which occurred mostly, if not totally, before the Police Powers and Responsibilities Act came into force or interstate might not have specifically referred to the right to contact a solicitor, but I am satisfied that he chose to speak to the police knowing at least that he had the right to silence.
There may in hindsight be some ambiguity in the translated response with respect to the question of whether the accused may have chosen to have a solicitor present had he had one, but it at least indicates, by responding that he did not have a solicitor, he knew that he had been told he had the right to contact one. Further, immediately subsequent questioning elicited agreement by him to be interviewed without a solicitor. The possibility that the accused may subjectively have been attempting to convey in response to the earlier question the notion that he was not pursuing the option of contacting the lawyer because he did not have a solicitor cannot be wholly excluded. However, if that was what he was trying to convey he did not elaborate on it further since Detective White asked through the interpreter if he was happy to be interviewed without a solicitor or another interview friend present and an affirmative answer was made by the accused to the interpreter and conveyed to Detective White by him. According to P.C.C. Hartley's evidence (pp22-25) the right to have a solicitor was clearly explained and apparently understood by reference to the Vietnamese words used.
In the absence of any more than that the obligations under P.R.C. s66(4) did not arise and the police officer was justified in continuing on the assumption that the accused understood the right to have a solicitor or a friend present, but had decided to proceed with the record of interview without their presence.
The issue of unfairness is impacted on by the fact that the accused was warned as to his right to silence, but indicated his willingness to proceed with the record of interview nonetheless. The probability of familiarity with the conventional warning from interviews with the police on several previous occasions is another factor suggesting that an informed choice to speak rather than remain silent was made. Further, the accused did not give evidence on the voir dire. The particular consequence of this is that there is no direct evidence that he was under any misapprehension as to the possibility of trying to obtain legal advice despite not having an existing solicitor/client relationship. The onus is on the applicant in a case of this kind to prove a basis for the discretion to exclude evidence being exercised (R v Lee (1980) 82 CLR 133; Wendo v The Queen (1963) 109 CLR 589; MacPherson v The Queen (1981) 147 CLR 512). This is a serious obstacle to the accused's success on the application.
With regard to factors to be taken into account in an application for discretionary exclusion nothing was suggested which affects the reliability or cogency of what the accused said. For the reasons set out above, I am not satisfied that it is established that the confession might not have been made but for any failure to appreciate that the accused may not have understood that he could attempt to contact a solicitor notwithstanding that he did not have an ongoing relationship with one (on the assumption that that is what the accused meant).
If the matter is looked at from the criteria for "public policy" exclusion on the assumption that there was a breach of the obligation under s93 the application fails. There is no evidence of a deliberate breach of the proper procedures during the record of interview. The police were not "cutting corners". It is not established that the officers acted in disregard of a statutory intent to circumscribe police powers. Nothing is suggested which affects the cogency of the evidence. A charge of murder is a most serious offence.
In my opinion the accused has not established that the record of interview should be excluded. Accordingly, I rule that the electronically recorded record of interview may be admitted in evidence. It follows from the stance taken by Mr Lynch that the conversation between the accused and P.C.C. Hartley may also be led in evidence.
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