R v Jie Hua Yu

[2001] VSC 55

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No.1498 of 2000

THE QUEEN

v

JIE HUA YU

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JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	1, 2 March
DATE OF RULING:	2nd March
CASE MAY BE CITED AS:	R v Jie Hua Yu
MEDIUM NEUTRAL CITATION:	[2001] VSC 55

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Evidence – Record of interview – Voluntariness – Fairness – Exclusion of whole or part

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	P. Coghlan	Office of Public Prosecutions
For the Accused	B. Bourke	Victorian Legal Aid

HIS HONOUR:

1. Prior to the commencement of the trial, I was asked to rule that the police record of interview of the accused should be excluded. Exclusion was sought upon the bases that the interview was not voluntary, and that I should exercise my discretion to exclude it as unfair, including after taking into account that the requirements of Section 464 C of the Crimes Act, as to a suspect having the right to see a lawyer, were said not to have been complied with. In the alternative I was asked to rule that certain questions and answers in the interview should be excluded. I was not prepared to rule out the whole of the interview, and these are my reasons.

1. The accused was charged with manslaughter arising out of the death of her second son in February 2000.  On 16 February 2000, the child was left in the rear seat of the accused’s car parked in the car park of the Ferntree Gully Hotel for a period of about 2 hours and twenty minutes, from about 9.30 a.m. to shortly before noon.  When the accused returned to the car, the child was seen to be in need of attention.  The child was taken promptly to the nearby Angliss Hospital, and later to the Royal Children’s Hospital.  There, on 22 February, the decision was taken to remove life support and the child died.

1. The accused was interviewed by police, and the interview was videorecorded, on 17 February.  The interview started around 11.48 p.m., continued until 1.12 a.m. on 18 February, was then suspended, started again at 1.44 p.m. and concluded at 2.06.  The transcript prepared from the tape contained 439 questions in 65 pages.  An interpreter was present during the interview, and considerable use was made of her services.

1. No evidence was led before me on the application.  I had access to the statements taken by police from witnesses.  I also viewed the videotape, assisted by the transcript.  During that viewing, I made many notations as to matters I noted that it would not have been appropriate to include in a transcript.

1. It appears that the accused and her husband were first spoken to by police at the Children’s Hospital around 8 p.m. on 17 February.  In the presence of an interpreter, and a social worker, the accused was given the usual warning and told of her rights including to a solicitor.  The police stated that she said that she understood that right, and did not want to exercise it.  Her husband stated that the police told his wife that she could speak to a lawyer.  After arrangements were made to have the oldest son of the accused looked after, the accused and her husband were taken to the Homicide Squad Office.  There, while a statement was taken from the husband, who looked after the sleeping third child, the accused was interviewed.

1. After the usual preliminaries, the accused was given the usual caution and there was then an exchange about her rights to communicate with a relative and a legal practitioner.  Before I turn to that exchange, I would note that I formed the impression from watching the whole of the interview that the accused adopted an unexceptionable approach to the use of the interpreter.  At times, and more obviously where questions were simply put and were susceptible of a simple answer, she provided the answer in English.  At other times, she made use of the interpreter.  At many times throughout the interview, she nodded or shook her head, in a way that appeared consistent with her oral answers. 

1. During the exchange about her right to communicate with a legal practitioner, she shook her head when asked if she knew what a legal practitioner is. That led to her being asked if she knew what a solicitor is, and she nodded. After that she was asked if she understood her rights, if she wished to exercise any right, and if she wanted to phone a solicitor. Each of the answers she gave was consistent with her not wanting to communicate with a solicitor. When she was asked a similar question after the interview was suspended, she gave a similar answer. I am not prepared to find that there was a breach of Section 464C of the Crimes Act which requires that a suspect be told of her right to a legal practitioner and given the opportunity to exercise that right if she wished to do so. The accused did not give evidence before me to say that she was not told of her right to see a lawyer, or did not understand that she had such a right, or was not given the chance to exercise the right. The only inference that I considered it proper to draw from viewing the record of interview was that she meant what she said.

1. I am satisfied that the accused was interviewed voluntarily.  The submission to the contrary was based on what was said in R v Li. (1993) 2 VR 80. There, Coldrey J expressed the view that voluntariness 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 the case before him, the accused had given evidence: that he did not understand that he did not have to answer questions; that if he had known, he would not have answered any. Further, the accused there, who had only a limited ability to speak and understand English, did not have an interpreter available. I am not prepared to infer any lack of understanding on the material before me. On my viewing of the record of interview, it appeared that she understood the process and was intent of providing full co-operation.

1. The aspect of the primary submission as to unfairness that Mr Bourke, for the accused, spent most time elaborating, was that which focused on the character and form of many of the questions put to the accused in the interview.  The submission was that those matters should be taken with other matters.  I do accept that it is appropriate to have regard to matters including the physical and emotional state of the accused, her difficulties with English, and her unfamiliarity with legal processes.  She does have difficulties with English, but as I have noted earlier, she had access to and made appropriate use of an interpreter.  Also, as I have noted earlier, she chose not to exercise her right to consult a lawyer.  When viewing the videotape, I looked for signs of distress or tiredness or both, and there were some.  But they did not appear to be major, let alone extreme.  Again as I have noted earlier, she appeared to be intent on being co-operative.

1. The questioning was effectively in five stages.  First, there were the usual preliminaries, including caution, rights and formal details.  Secondly, the accused was asked to tell in her own words what occurred on 16 February.  Thirdly, she was asked a miscellany of questions about her family.  Fourthly, she was asked to elaborate on aspects of her account of what occurred on 16 February.  Fifthly, she was asked some more intrusive questions about her account.  Mr Bourke took me to many questions during the third and fifth stages.  He submitted that, at times, the questions were unfair for reasons that included that they were irrelevant or clearly not understood or in the nature of cross-examination.  At times, I indicated that my preliminary view was that his criticism was well-founded.  What I was unable to accept was that the ultimate consequence of many poorly-framed or otherwise inappropriate questions having been asked was that the whole interview had to be excluded as unfair.

1. At to the applicable legal principles, I would repeat the summary I gave in excluding the whole of a police interview in Jones (20 February 2001):

“In exercising the discretion to exclude for unfairness, I have applied the principles reviewed in paragraphs 53 and 54 of Swaffield v The Queen (1998) 192 CLR 159. In short: the purpose of the discretion is to protect the rights and privileges of accused persons; I must evaluate all the relevant circumstances; I must not focus only on whether the police have acted unfairly; I should have regard to the risk that the accused might be improperly convicted; the unreliability of the disputed material may be a touchstone of unfairness, but is not the sole one.”

1. In my assessment, the police did not act unfairly.  There may be some sting in the criticisms that the questioning could have been left to another day, and that some of the questions were unduly intrusive and could have been better framed.  However, I could not accept that the interview was held at a time that was patently too early, or that there was a pervasiveness to the inappropriately framed questions.  And, in my assessment, there were no indications that more than an occasional answer, such as one as to the colour of the accused’s car, was unreliable.

1. I have no doubt that, in an appropriate case, I could and would exclude the whole of an interview if I concluded that the whole was infected by unfairness by parts that were unfair, whether viewed from the perspective of quantity or quality or both.  In the present case, I was satisfied that it would not be appropriate to exclude the whole of the interview.  I was satisfied that I would exclude many particular questions and answers.  Accordingly, I indicated that, in the event that counsel were unable to agree as to what particular questions and answers ought to be excluded, I would make rulings on those in contention.

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