R v Luo
[2018] WASC 226
•30 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: R -v- LUO [2018] WASC 226
CORAM: FIANNACA J
HEARD: 31 AUGUST & 3 OCTOBER 2017
DELIVERED : 30 JULY 2018
FILE NO/S: INS 62 of 2017
BETWEEN: THE QUEEN
Prosecution
AND
JIE LUO
Accused
Catchwords:
Admissibility of admissions - Voluntariness - Discretion to exclude - Foreign national - Access to lawyer - Turns on own facts
Legislation:
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Criminal Investigations Act 2006 (WA)
Evidence Act 1995 (Cth)
Maritime Powers Act 2013 (Cth)
Result:
TBA
Representation:
Counsel:
| Prosecution | : | Mr D W L Renton |
| Accused | : | Mr J J Morris |
Solicitors:
| Prosecution | : | Director of Public Prosecutions (Cth) |
| Accused | : | Morris Law Pty Ltd |
Case(s) referred to in decision(s):
Brott v The State of Western Australia [2016] WASC 300
Collins v The Queen [1980] FCA 88; (1980) 31 ALR 257
Duke v The Queen (1989) 63 ALJR 139
Ibrahim v The King [1914] AC 599
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
R v Lee [1950] HCA 25; (1950) 82 CLR 133
R v Narula (1986) 22 A Crim R 409
R v Swaffield [1998] HCA 1; (1998) 192 CLR 159
R v Williams (1992) 8 WAR 265
The State of Western Australia v Gandy [No 2] [2015] WASC 386
The State of Western Australia v Gibson [2014] WASC 240
The State of Western Australia v Smith [2010] WASC 279
Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396
Van der Meer v The Queen [1988] HCA 56; (1988) 35 A Crim R 232
Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559
FIANNACA J:
Pre-trial decision - Admissibility of interviews
The accused, Jie Luo, was charged on indictment with the offence of importing a commercial quantity of a border controlled drug, namely methamphetamine: s 307.1(1) Criminal Code (Cth). He was tried, with 12 co-accused, before a judge and jury in the Supreme Court in Perth from 9 October 2017 to 14 December 2017 and was convicted of the offence.
Prior to the trial, on 31 August 2017, I heard an application on behalf of Mr Luo to exclude two police interviews conducted with him during the investigation of the offence with which he was charged. The Crown had indicated its intention to adduce evidence of the interviews at the trial. The application was made on the basis that any admissions made by Mr Luo during the interviews were not admissible because they were not voluntary. In the alternative, it was submitted on his behalf that any such admissions should be excluded in the exercise of discretion to ensure a fair trial ('the fairness discretion').
On 3 October 2017, I ruled that, subject to the deletion of questions and answers numbered 162 and 217 in the interview of 3 May 2016, the contents of the interviews conducted with Mr Luo on 3 May 2016 and 25 May 2016 were admissible and would be received into evidence at the trial if tendered by the prosecution.
I stated at the time that I would publish my reasons. These are my reasons.
Background
Mr Luo, along with seven other persons who were on board, was arrested on a fishing vessel off the coast of Geraldton on 1 May 2016, after the vessel was intercepted by law enforcement authorities because it was suspected of having delivered a quantity of a border controlled drug to Western Australia. Mr Luo and the other persons on board were taken to Geraldton Port and from there to the Geraldton Police Station to be interviewed.
Mr Luo was first interviewed on 3 May 2016 by Federal Agent Bailey of the Australian Federal Police (AFP) and Senior Constable Mayo of the Western Australia Police. The interview commenced at 9.42 am and concluded at 12.05 pm. An electronic audio recording was made of the interview.
Mr Luo was subsequently released and taken into immigration detention at the Yongah Hill Immigration Detention Centre in Northam. He was arrested by police in respect of the importation charge on 25 May 2016, while in detention. He was then interviewed for a second time. On that occasion the interviewers were Federal Agent Gallardo of the AFP and AFP Special Member Jorgensen. The interview commenced at 11.05 am and concluded at 12.56 pm. An electronic audio-visual recording was made of the interview.
Mr Luo is a Chinese national from Guandong province, China. His native language is Cantonese. He does not speak English. Therefore, each of the interviews with him was conducted through a qualified Cantonese interpreter. In each instance the interpreter provided the service over the telephone and could be heard over the telephone speaker. The telephone was placed on the table in the interview room.
During the interview of 25 May 2016, it became apparent at a very early stage, while dealing with preliminaries, that Mr Luo and the interpreter were having difficulties understanding each other. A replacement interpreter was obtained and the interview continued after Mr Luo indicated he now understood the interpreter.
During the interview of 3 May 2016, Mr Luo made a number of admissions relevant to proof of the allegation that he was a party to the importation of a border controlled drug, although he did not admit he was involved in such an enterprise. He admitted that his job on the vessel was to navigate it, and he had done so, although others had also navigated it; that the vessel had travelled from China and had taken 21 days to travel to where it was located; that he communicated with someone on the telephone; and that he wrote the coordinates found on a piece of paper on the vessel. Those coordinates were subsequently linked to the landing site on shore where the drugs were alleged to have been delivered. Mr Luo claimed he did not know the purpose of the voyage or whether there were any drugs on the vessel. He also denied that the tender on the vessel (which the police alleged had been used to deliver the drugs from the fishing vessel to shore) had left the vessel. He claimed that the coordinates were written by him to train other persons on the vessel.
In the interview of 25 May 2016, Mr Luo again made relevant admissions of a similar kind to those he made on 3 May 2016, but he provided more detail about how he had come to get the job on the vessel and what had occurred during the voyage. He also said he was to be paid a sum of money for a months' work. He said that the voyage had taken 15 days and that he had navigated the vessel. He said there was a radio on the vessel and every now and then he would be given instructions as to where he should take the vessel. Again, he denied that the tender had left the fishing vessel.
I have not outlined all of the matters stated by Mr Luo in each interview, but the above summaries suffice to show that his admissions in both interviews had probative value in the proof of his involvement in the importation of methamphetamine if the Crown was able to establish on the whole of the evidence that the fishing vessel was used to bring that drug into Australia. There was a large body of circumstantial evidence from which that fact could be inferred.
Preliminary matters
There was no challenge to the legality of the detention of the vessel or its crew, or of the initial arrest of Mr Luo. Those actions were lawfully effected under the Maritime Powers Act 2013 (Cth) and the Crimes Act 1914 (Cth). Upon the police arresting Mr Luo, the provisions of Pt 1C of the Crimes Act were engaged. Those provisions impose obligations on investigating officials in relation to people arrested for Commonwealth offences.
The only provisions of relevance to this application are those concerned with an arrested person's right to communicate or attempt to communicate with a legal practitioner of the arrested person's choice, and his right to have such a practitioner present during questioning: s 23G Crimes Act. Section 23G(1) provides that, subject to exceptions that do not apply in this case, an investigating official must, before starting to question an arrested person, inform him of those rights and:
must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning
Section 23G(2) provides that if the arrested person wishes to communicate with a legal practitioner, the investigating official must:
(a)as soon as practicable, give the person reasonable facilities to enable the person to do so; and
(b)in the case of a communication with a legal practitioner ‑ allow the legal practitioner or a clerk of the legal practitioner to communicate with the person in circumstances in which, as far as practicable, the communication will not be overheard.
Section 23G(3) deals with the obligations that apply when an arrangement has been made for a legal practitioner to be present. That situation was not reached in this case.
The Crimes Act does not provide for consequences in respect of the admissibility of evidence if the provisions of s 23G have not been complied with. Section 138 of the Evidence Act 1995 (Cth) provides for such consequences, but it does not apply in proceedings in this court, notwithstanding that the proceedings are in respect of an offence against the Commonwealth law.[1] The laws of this State concerning procedure and evidence apply generally to the proceedings in this case, except as otherwise provided by the laws of the Commonwealth.[2] Both parties agreed that, as the Crimes Act made specific provision for the obligations of investigating officials in respect of arrested persons in criminal investigations, the provisions of the Criminal Investigations Act 2006 (WA) concerning the same matters did not apply. Therefore, the provisions of s 138 of the Criminal Investigations Act, which deal with the consequences of non‑compliance with similar provisions to s 23G of the Crimes Act, do not apply.
[1] Evidence Act 1995 (Cth), s 4.
[2] Judiciary Act 1903 (Cth), s 79(1).
However, the common law applies,[3] and the Crown accepted that, if there was non-compliance with s 23G, it would be relevant to the exercise of the discretion to exclude evidence of the interviews to ensure a fair trial.
[3] Judiciary Act 1903 (Cth) s 80.
The basis for the application
Mr Luo's application initially relied on four key arguments.
In respect of the interview on 3 May 2016, it was argued, firstly, that difficulties in the interpretation (at the time of the interview) regarding the caution meant that the court could not be satisfied that Mr Luo had properly understood the caution and had freely exercised a choice to answer questions. In other words, the court could not be satisfied any admissions were made voluntarily. Secondly, it was argued that the investigating officers had not made a reasonable attempt to provide Mr Luo with access to a legal practitioner after he had made a 'clear and unequivocal' request to communicate with a legal practitioner, with the consequence that he was placed in a vulnerable situation of feeling he should proceed, when he might otherwise not have. Although it was initially suggested this went to voluntariness, the argument on this ground was ultimately confined to exclusion on the basis of the fairness discretion.
During the hearing of the application, after discussion with the bench, counsel for Mr Luo did not pursue the first argument in respect of the interview of 3 May 2016, concerning perceived difficulties in the interpretation regarding the caution.[4] That course was appropriate, as it appeared from the transcript of the interview that any difficulty in the interpretation was resolved, and Mr Luo had ultimately indicated his understanding of the caution. Consequently, the ground that remained in relation to the first interview was the alleged lack of a reasonable attempt to provide Mr Luo with access to a legal practitioner, which was said to justify exclusion on the basis that admission of the evidence would result in an unfair trial.
[4] ts 94 - 95.
In respect of the interview of 25 May 2016, the first argument was that Mr Luo's answers concerning the caution do not unequivocally establish that he understood the caution. Therefore, the court cannot be satisfied that he participated in the interview and made admissions voluntarily. Secondly, it was argued that there were a number of occasions when the interpreter appeared to have difficulty either understanding or hearing what was said by the interviewing officers, and the court could not be satisfied that the interpreter had properly conveyed what the officers had asked, in which case it would be unfair to Mr Luo to admit the interview at his trial, because his answers may not be reliable responses to the questions. However, the accuracy of the translation of what the interpreter had said to Mr Luo, where that was included in the transcript of the interview, was not challenged. Further, the difficulties referred to appear to have been resolved by questions being put again. In any event, counsel for Mr Luo could not identify any specific way in which the difficulties that occurred occasionally with hearing or understanding could be said to have affected the fairness of using any of the answers given by Mr Luo. Ultimately, counsel appropriately abandoned that ground of objection.[5] So, what is left in respect of the second interview is an argument about voluntariness based on answers given by Mr Luo in relation to the caution.
[5] ts 115.
Legal principles
I outlined the relevant principles on an application of this kind in Brott v The State of Western Australia,[6] referring to the detailed analysis by Corboy J in The State of Western Australia v Gandy [No 2].[7] Relevant parts of my outline in Brott follow, with some additional comments.
(a) Voluntariness
[6] Brott v The State of Western Australia [2016] WASC 300 [16] ‑ [29].
[7] The State of Western Australia v Gandy [No 2] [2015] WASC 386.
An admission made by an accused person out of court is not admissible in evidence unless it was made voluntarily, that is, 'made in the exercise of a free choice to speak or be silent'.[8] This has been referred to as 'basal voluntariness' and is concerned with confessions made under compulsion.[9] An admission is not made voluntarily if the will of the accused has been overborne as the result of a threat, duress, intimidation, persistent importunity or sustained or undue insistence or pressure from a person in authority, or as a result of a promise held out to the accused by such a person.[10] If there is evidence that the accused's statement was preceded by an inducement, such as a threat or promise, held out by a person in authority, then it is not voluntary unless the inducement is shown to have been removed.[11]
[8] R v Lee [1950] HCA 25; (1950) 82 CLR 133, 149.
[9] Tofilau v The Queen [2007] HCA 39; (2007) 231 CLR 396, 417 [47], 420 [60] (Gummow & Hayne JJ).
[10] Lee, 144; Tofilau, 420 ‑ 421[60] (Gummow & Hayne JJ).
[11] Lee (144).
While the justification for the rule is that a confession obtained in such circumstances is 'deemed so unreliable as a class that it should not be available for consideration'[12] as a matter of policy, its application depends on the nature and effect of any inducement.[13] The issue under this head of exclusion is not the propriety of police conduct, but the effect of police conduct in all the circumstances on the will of the accused. The court must have regard to the age, background and psychological condition of the accused person and the circumstances in which the confession was made.[14]
[12] Tofilau (418) [53] (Gummow & Hayne JJ).
[13] Ibrahim v The King [1914] AC 599, 610 ‑ 611 (Lord Sumner); R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 168 [11] (Brennan CJ).
[14] Collins v The Queen [1980] FCA 88; (1980) 31 ALR 257, 307 (Brennan CJ).
However, as was pointed out by Gummow and Hayne JJ in Tofilau:
The conclusion that a confessionalist had no choice to speak or stay silent is not required (and without more being established, would not be open) if it is observed that the confessionalist acted under some misapprehension or mistake, even if that misapprehension or mistake was induced by the person to whom the confession is made. Nor is that conclusion required (and without more being shown the conclusion would not be open) if it is observed that there was some imbalance of power between the confessionalist and the person to whom the confession was made.[15]
[15] Tofilau, 421 [63] (Gummow & Hayne JJ).
Further, as was observed by Hall J in The State of Western Australia v Gibson:[16]
Voluntariness is not an issue to be determined by reference to a hypothetical standard. It requires a careful assessment of the effects of the actual circumstances upon the will of the particular accused: Collins v The Queen (1980) 31 ALR 257, 307 (Brennan J).
[16] The State of Western Australia v Gibson [2014] WASC 240 [161] (Hall J).
The onus is on the prosecution to establish, on the balance of probabilities, that a confession was made voluntarily, that is, that it was not induced by the conduct of a person or persons in authority in a manner referred to above.[17]
(b) Exclusion of voluntary admissions in the exercise of discretion
[17] Wendo v The Queen [1963] HCA 19; (1963) 109 CLR 559.
A confession that is held to have been made voluntarily may nevertheless be excluded in the exercise of a trial judge's discretion. In Swaffield the High Court identified three categories of cases in which that might occur, namely:
(a)where it would be unfair to the accused to admit evidence of the admission;
(b)where evidence of the admission should be excluded on public policy grounds;
(c)where the prejudicial effect of the evidence outweighs its probative value.
The purpose of the fairness discretion is to protect the rights and privileges of the accused person; the purpose of the discretion to exclude an admission on public policy grounds is to protect the public interest; and the purpose of the discretion to reject evidence where its prejudicial effect outweighs its probative value is to guard against a miscarriage of justice.[18]
[18] Swaffield (189) [52] (Toohey, Gaudron & Gummow JJ).
Where an admission has been made voluntarily, it is for the accused to establish, on the balance of probabilities, that evidence of the admission should be excluded on the ground of unfairness. The issue in respect of unfairness is not whether the accused has been treated unfairly, but whether the reception of the admission would be unfair to the accused in the conduct of his or her trial.[19] In determining that question, the reliability of the admission, in light of the circumstances in which it was obtained, will always be a factor to be considered, but it is not the sole factor, and there may be cases in which an otherwise reliable account will be excluded due to other factors, such as illegality or impropriety on the part of law enforcement officers.[20] In that context, the fact that no confession might have been made if the investigation had been properly conducted is a relevant factor.[21]
[19] Van der Meer v The Queen [1988] HCA 56; (1988) 35 A Crim R 232.
[20] R v Williams (1992) 8 WAR 265, 273 ‑ 274 (Rowland & Owen JJ); The State of Western Australia v Smith [2010] WASC 279 [9] (Hall J).
[21] Duke v The Queen (1989) 63 ALJR 139, 141 (Toohey J), referred to in R v Williams (273) (Rowland & Owen JJ).
Even if admissions appear to have been made in the exercise of a free choice to speak or remain silent, if there is an issue concerning the accused person's understanding of his rights, that fact will be relevant to the exercise of the fairness discretion. Where an accused is under some serious disadvantage by reason of his cultural, educational, or social background, or by reason of some intellectual or other handicap, the police may be required to take particular care to ensure that an accused understands his rights and is capable of making a free choice whether to speak or remain silent, so that no unfairness may result from the interrogation process.[22] A failure to take reasonable steps to ensure that such knowledge or capacity exists may provide part of the basis for a finding of unfairness and result in the discretionary exclusion of any statement made.[23]
[22] R v Narula (1986) 22 A Crim R 409, 426 - 427 (Vincent J; Young CJ & Murray J agreeing).
[23] R v Narula, 409, 427.
However, as was pointed out in R v Williams, in accepting that factors other than reliability may be relevant in the exercise of the fairness discretion:
Such other factors must, of course, go to the issue of relevant unfairness, that is, unfairness of such a nature whether procedural or substantive, as might jeopardise the right of the accused to a fair trial. It would follow that in the face of a confessional statement found to be reliable, the onus on the accused of establishing the relevant unfairness is necessarily high.[24]
[24] R v Williams, 273 ‑ 274 (Rowland & Owen JJ).
In considering whether to exercise the discretion, the court is required to weigh the factors that are said to give rise to unfairness against the public interest in placing otherwise relevant and admissible evidence before the jury, so that those who commit serious offences may be brought to justice. The weighing of the public interest is relevant to the exercise of discretion, whether exclusion is sought on the basis of unfairness or on the basis of public policy. The weight to be given to the public interest will vary according to 'the heinousness of the alleged crime and the reliability and unequivocalness of the alleged confessional statement'.[25]
[25] Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177, 203 (Deane J).
Counsel for Mr Luo did not specifically rely on the public policy head of exclusion. At times the argument in respect of the second interview, concerning the attempt to provide Mr Luo with access to a legal practitioner, appeared to invoke public policy considerations, but the argument was ultimately put on the basis that to admit the interview into evidence would result in unfairness to Mr Luo. Nevertheless, given that the complaint in this context is that the investigating officers did not do all that was reasonably necessary to comply with their obligation under s 23G of the Crimes Act, it is appropriate to identify the key aspects of the public policy head of exclusion.
In in Pollard v The Queen, Deane J observed that policy considerations transcend any question of unfairness to the particular accused where evidence has been procured by unlawful conduct on the part of investigating police.[26] His Honour noted that at the forefront of such considerations is 'the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice'.[27] It is the duty of the court to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. 'Unlawful' in this context includes non-compliance by law enforcement officers with the law or some applicable judicially recognised standard of propriety. The nature and seriousness of any such non-compliance is an important consideration.
[26] Pollard, 203.
[27] Pollard, 203.
Mr Luo's application does not rely on any argument that the contents of the interview would give rise to impermissible prejudice that would outweigh the probative value of his admissions in the interviews. It is, therefore, not necessary to canvass the principles concerning that head of exclusion.
Evidence adduced at the pre-trial hearing
At the hearing, as voluntariness was raised at least in respect of the second interview, the Crown was called on first. The prosecutor indicated that no witness would be called, but that a number of exhibits would be tendered, and the facts upon which the court would be asked to decide the issues in the application would emerge adequately from those materials. There was no objection to the receipt of those materials, and they were received into evidence.
The prosecutor tendered a CD of the audio recording of the interview of 3 May 2016 and a DVD of the audio-visual recording of the interview of 25 May 2016. He also tendered the original transcript that had been made of each of those interviews. In each case, what was transcribed was the questions asked by the interviewers and the answers in English spoken by the interpreter, interpreting the answers that had been given by Mr Luo, as well as any other exchanges between the interviewers and the interpreter for clarification. The Crown also tendered annotated copies of the transcripts. The extracts which are reproduced in the Annexure to these reasons are from the annotated transcripts. It is necessary to provide an explanation for the annotations.
The Crown engaged the services of Ms Jiping Zou, an accredited interpreter in Cantonese who was not one of the interpreters used during the interviews, to provide her interpretation of parts of the two interviews where the interpreters and Mr Luo were speaking in Cantonese. The purpose was to address any concerns about whether the interpreters accurately conveyed to Mr Luo what the officers had said and then accurately interpreted what Mr Luo had said in response in those parts of the interviews. Having listened to the recordings, Ms Zou, annotated the original transcripts with her interpretation of what each of them said in those passages. The annotations were made in red. It is apparent from the annotations that, if Ms Zou agreed with the interpreter's interpretation of the question or statement made by the interviewing officer, she did not include her interpretation of what the interpreter said. In those cases, where 'A' appears followed by an annotation in red, and there is no reference to 'LUO' in the margin, the annotation is Mr Luo's answer as interpreted by Ms Zou. However, if 'LUO' appears in the margin, then the text in red after 'A' is what the interpreter said to Mr Luo, as interpreted by Ms Zou, and the text after 'LUO' is what Mr Luo said, as interpreted by Ms Zou. I note also that, at times, the interviewing officer refers to Mr Luo by the name 'Kit'.
The Crown tendered a statement from Ms Zou dated 31 July 2017, which referred to her qualifications and explained the process she had adopted. Counsel for Mr Luo did not require Ms Zou for cross-examination. The contents of her statement were not in dispute; it is not necessary for me to refer to them in any detail. It is sufficient to say that she is an accredited interpreter in the Cantonese language, that she understood the interpreters and Mr Luo in the recordings of the interviews, and her annotations on the transcripts were accurate interpretations.
It is to be accepted that interpretation from one language to another may admit of more than one possible result, each of which may be regarded as a reasonable analogue of the original statement. That is particularly so when the structure and range of vocabulary of the two languages is very different and one would not expect a word‑for-word translation. What is necessary is an interpretation that reasonably conveys the meaning of the original statement. In this case, both parties were content to proceed on the basis that Ms Zou's interpretation into English of what both the interpreter and Mr Luo said in Cantonese should be accepted as accurate.
Ms Zou's interpretation of what the interpreters said to Mr Luo when interpreting the questions or statements of the interviewing officers suggests that the original interpretation was not always a literal or precise verbal equivalent of what the officers said. Her interpretation of what Mr Luo said in a number of places is not in the same terms as the interpretation given by the interpreter during the interview. It may be arguable whether the differences are significant. Ultimately, the parties were agreed that, if the interviews were admitted, the jury would be provided with the annotated transcripts and asked to accept the accuracy of the annotations.
Mr Luo did not adduce any evidence in the hearing of the application.
Consequently, any factual findings in respect of the circumstances, including Mr Luo's state of mind, had to be made on the basis of the contents of the two electronically recorded interviews (which I listened to and watched) and any inferences that could be drawn reasonably from those contents. For the purposes of determining the application I listened to the whole of the audio recording of the interview of 3 May 2016, and watched the whole of the audio-visual recording of the interview of 25 May 2016, in each case while referring also to the original transcript. I also read the annotated transcripts of the interviews.
Interview of 3 May 2016 - Evidence concerning right to communicate with legal practitioner
In relation to the interview of 3 May 2016, it is evident from the recording and the transcripts that the interviewing officer informed Mr Luo that he was making inquiries into an allegation that Mr Luo imported a commercial quantity of a border controlled drug into Australia. He then gave Mr Luo the standard caution and informed him of his rights under s 23G of the Crimes Act. In each instance, Mr Luo indicated that he understood, except when the officer said he could not force Mr Luo to do anything. When that aspect of the caution was explained, Mr Luo said he understood. In respect of his right to communicate with a legal practitioner, the following exchange took place (I have used Ms Zou's interpretation and specified when the original interpreter was speaking to Mr Luo, and have left in square brackets the original answer as spoken by the interpreter):
Q31. Okay. You may communicate with or attempt to communicate with a legal practitioner of your choice or attempt - - -
Yeah, go ahead, Kenneth.
INTERPRETER: You can also find a legal representative or a lawyer if you want to.
LUO: I don't have such an experience and I don't know how to use one.
[A. I've never experienced this, so I never know how to do that.]
Q32. Okay. I'll finish it off. Basically, to simplify it, legal practitioner, I'm going to use the term lawyer. So you can also attempt to arrange for a lawyer of your choice to be present during questioning. Do you understand?
INTERPRETER: So after this interview (indistinct…) to arrange (indistinct ...) to be present.
LUO: Oh, oh, what interview?
[A. Yes, I understand.]
Q33. Okay. Do you wish to communicate with a lawyer?
LUO: It is best to.
[A. I'd better.]
Sorry, Kenneth, I couldn't hear you, mate
INTERPRETER: He said I'd better.
Q34. He'd better? So that's yes, he would like to communicate with a lawyer?
INTERPRETER: Is it yes you want a lawyer, yes?
LUO: Yes, yes.
[A. Yes. Yes.]
The officer then explained to Mr Luo that the interview would be suspended for the purpose of Mr Luo speaking with a lawyer. Mr Luo said he did not know how to contact a lawyer. The officer told him they would give him a phone to make a call to Legal Aid. When that was explained to Mr Luo, he enquired whether they would charge. He was told he would be provided with a basic legal service over the telephone for free. The interview was then suspended at 9.55 am.
When the interview resumed at 10.39 am, the following exchange took place after the officer again cautioned Mr Luo and confirmed that the police had not discussed the matter with him in the intervening period:
Q46. Yep. Okay. Do you also agree that during the interview we've made attempts, we've made three attempts to contact Legal Aid for him on the phone?
INTERPRETER: (Indistinct)
LUO: Yes, clear.
[A. Yes, I agree.]
Q47. Yep. Okay. So we were on hold for about thirty or forty minutes to Legal Aid. We've also tried to call Legal Aid in Geraldton. They've advised that they only have two lawyers. One is at court and one is at the prison, so they have no lawyers available to talk to him right now.
INTERPRETER: (Inaudible)
LUO: Oh, oh.
[A. Yes.]
Q48. Yep. So just tell him - obviously during the suspension he's advised me that he's over waiting for a lawyer and he just wants to get on with it - but what I'm going to do is I'm going to put the question around a lawyer to him again and I'd just like him to answer that question for me.
INTERPRETER: (Inaudible)
LUO: Yes, I know.
[A. Yes, I know.]
Q49. Okay. So Kit, you may communicate with or attempt to communicate with a legal practitioner or a lawyer of your choice and arrange or attempt to arrange for a lawyer of your choice to be present during the questioning. Do you understand?
INTERPRETER: Do you understand you can find a legal practitioner or a legal lawyer to be present?
LUO: There is no need.
[A. That's not necessary.]
Q50. Okay. So just to clarify, he said that a lawyer is not necessary?
INTERPRETER: No need for a lawyer?
LUO: Yes.
[A. Yes.]
Q51. Okay. Okay. Can you ask him to explain to me why he's changed his mind and he doesn't want a lawyer now?
INTERPRETER: Why did you change your mind?
LUO: Because (they) have called for such a long time but cannot get one to come.
[A. I was waiting for a long time but no lawyer is available.]
Q52. Yep. Okay. So at this point is he happy to proceed without a lawyer?
INTERPRETER: (Inaudible)
LUO: Yes.
[A. Yes.]
Q53. Okay. So he's happy to proceed.
INTERPRETER: (Inaudible)
LUO: Yes.
[A. Yes.]
It was accepted on behalf of Mr Luo in the hearing that what the interviewing officer said about the attempts to contact Legal Aid in Perth, and also about the contact that was made with Legal Aid in Geraldton, was true. On that basis, no direct evidence was called in respect of those matters.
Returning to the interview, after questions about some further preliminary matters concerning Mr Luo's citizenship and his right to contact his Consular office, Mr Luo was provided with two documents, which the interviewing officer said were 'a version of [Mr Luo's] rights written in Chinese'. One was said to be in 'traditional Chinese' and the other was said to be in 'simplified Chinese'. The annotated transcript shows that, while Mr Luo had some difficulty understanding the first document, he was able to read the simplified document. No evidence was tendered in the hearing as to the contents of the 'rights documents', as they were referred to by the Crown. If my decision turned on the provision of those documents to Mr Luo, I would not have considered it adequate to rely on the description by the interviewing officer to make a finding that the documents conveyed the rights (including the caution) that had been stated already by the officer. That is notwithstanding the fact that no submission was made on behalf of Mr Luo that the documents he was shown might not be as described by the officer during the interview. Ordinarily one would expect production of the best evidence of the contents of the documents, which would be the actual documents with a certified translation into English. It seems to me it should not be difficult to adduce such evidence.
The annotated transcript shows that the interpreter said to Mr Luo, when the documents were handed to him, 'This is your right'. Given what had transpired earlier, in terms of the giving of the caution, and the explanation of Mr Luo's rights, which he had indicated he understood, and given that Mr Luo said he was able to read the documents, I was prepared to proceed on the basis that the documents reinforced what Mr Luo had already said he understood.
Interview of 25 May 2016 - The 'rights documents'
During the interview of 25 May 2016, after being cautioned and being informed of his rights, Mr Luo was again provided with two documents that have been referred to as 'rights documents'. The passage in the interview where that occurs is reproduced below, when I deal with the merits of the voluntariness argument in respect of that interview. The views I have expressed about proof of the contents of those documents, when dealing with the interview of 3 May 2016, apply equally in the present context. Again, I was prepared to proceed on the basis that the documents reinforced what Mr Luo had already said he understood. The explanation of the documents to him by the interpreter during the interview of 25 May 2016 specifically drew a link with what had already been said to him by the interviewing officer about his rights. Mr Luo did not say anything thereafter to indicate that the document he was able to read (the simplified Chinese version) was different to what he had been told a short time earlier about his rights.
Consideration of the application
Interview of 3 May 2016 - voluntariness
As I noted earlier, counsel for Mr Luo ultimately did not pursue his initial argument going to voluntariness in respect of the interview of 3 May 2016, based on difficulties in the interpretation concerning the caution. I have, nevertheless, considered the contents of the interview to satisfy myself that Mr Luo participated in the interview and answered questions in the exercise of a free choice to speak or be silent.
At the start of the interview Mr Luo acknowledged, in answer to questions, that he had been told the interview would be recorded and that the recording had commenced. He said he was 'clear' about that. He was cautioned soon after. The relevant passages are set out in the Annexure, being questions 18 to 26. It can be seen that on the very first occasion on which the caution was stated (question 19), the interpretation was faithful in most respects and certainly conveyed the meaning of the caution adequately. Mr Luo said he understood. Although his next answer, 'I know', might be thought to be unresponsive to the question whether he understood the caution, it might equally be regarded as an indication that he knew what it meant. In any event, Mr Luo's answers to the questions that followed demonstrate that he understood he did not have to answer questions and, after some clarification, that he could not be forced to do anything during the interview.
The fact that Mr Luo understood his rights is confirmed by the fact that he exercised one of those rights by asking to contact a lawyer.
Nothing in the balance of the interview suggests that Mr Luo was under any duress or inducement or otherwise feeling under any obligation to speak. In the absence of any evidence from Mr Luo, I am satisfied on the balance of probabilities that he participated in the interview and answered questions voluntarily.
Interview 3 May 2016 - Exclusion in the exercise of discretion
Before dealing with the remaining ground in respect of the interview of 3 May 2016, I note that I have given consideration to the question whether the matters that were initially raised on Mr Luo's behalf in respect of his understanding of the caution give rise to circumstances of the kind referred to in Narula, outlined in [32] above. In my opinion, the approach of the interviewing officers was sensitive to Mr Luo's cultural background and his inability to speak English, and they took reasonable steps, beyond providing an interpreter, to ensure that Mr Luo understood his rights and had the capacity to make a free choice whether to speak or remain silent. There is no basis for discretionary exclusion on that account.
As I noted earlier, the remaining ground in relation to the first interview is in effect that the interviewing officers did not defer the questioning for a reasonable time to allow Mr Luo to communicate or attempt to communicate with a legal practitioner, in circumstances in which he had made it clear that he wished to speak to a lawyer. The argument does not rely on any suggestion of deliberate wrongdoing, for which there is no evidence, but on the proposition that, given the seriousness of the crime alleged against Mr Luo and his circumstances ‑ a foreign national who did not speak English and said he had no experience of police interviews - more time should have been allowed to enable contact to be made with a legal practitioner, and further efforts should have been made by the officers.
In particular, counsel argued that no attempt was made by the police to contact other organisations on Mr Luo's behalf, including private practitioners, community law centres or the Law Society. In the course of his submissions, counsel put a number of speculative propositions about the availability of lawyers at the time of the day the calls were made. It is improper to speculate, and I make no assumptions about what the outcome might have been if other lawyers or organisations had been contacted. It is relevant to keep in mind that Mr Luo had queried whether the lawyer would charge a fee, which may have indicated that he was not in a position to engage a private lawyer.
The interview was suspended for approximately 45 minutes while the officers attempted to speak with someone at Legal Aid in Perth, but were put on hold for 'about 30 or 40 minutes'. They also contacted the Geraldton office but were told that neither of the lawyers there was available. It is clear from what was said by the officer, which was not disputed by Mr Luo, that it was he (Mr Luo) who had brought the attempts to an end by telling the officer that he was 'over waiting for a lawyer' and he just wanted to 'get on with it'. Mr Luo was again informed of his right to communicate with a lawyer, but he said there was no need. When asked why he had changed his mind, he said that it was because the police had called for 'such a long time' but could not get a lawyer to come.
Counsel for Mr Luo argued that it was unclear whether Mr Luo considered the efforts made by the police to locate a lawyer to be 'just, appropriate and reasonable' or whether he was just 'going along with what he considered to be assisting the investigation', having regard to his personal circumstances.[28] With respect, the submission invites speculation as to the Mr Luo's state of mind in the face of answers that explain his decision to continue in terms of not wanting to wait any longer. Mr Luo did not give evidence. He has the onus of persuading the court on the balance of probabilities that the interview should be excluded. I am not persuaded that there is any basis to conclude that Mr Luo felt he should continue with the interview, when otherwise he might not have.
[28] ts 100.
In the latter regard, counsel for Mr Luo put speculative propositions about the advice Mr Luo would have received. Those propositions were directed to an argument that no admissions might have been made if the investigation had been properly conducted, which, as I indicated at [31] above, may be a relevant factor in the exercise of the fairness discretion. Again, speculation is unhelpful, and I make no assumption about the advice Mr Luo might have received. In any event, I am not satisfied that the officers acted improperly in the conduct of the investigation.
As McLure P said in Wright v The State of Western Australia [2010] WASCA 199 at [34], where a suspect expressly or impliedly indicates that they do not want to exercise the right to communicate with a lawyer, in the context of a reasonable opportunity being given to obtain legal advice, no further time is required. I accept the Crown's submission that, when faced with the clear indication from Mr Luo that he did not want to wait any longer for a lawyer, the officers had no obligation to do anything further in regards to that right. I also accept that the officers were transparent and fair in putting on record what had occurred during the suspension of the interview, which explained why their efforts stopped, and in giving Mr Luo a further opportunity to consider whether he wished to communicate with a legal practitioner.
I have given consideration to whether there is anything in the manner the interview was conducted or in the answers given by Mr Luo to suggest that the reliability of his admissions might be called into question. In my opinion, there is nothing to suggest that his answers were unreliable or that their reliability might in any way have been affected by the fact that he did not pursue his right to communicate with a legal practitioner.
There was no illegality or impropriety on the part of the investigating officers that would give rise to any public policy reason for exclusion of the interview.
Interview of 25 May 2016 - Voluntariness
In respect of the interview of 25 May 2016, the passages concerning the giving of the caution and Mr Luo's understanding of it, are set out in the Annexure to these reasons, being questions and answers 43 to 48.
The particular answer relied on by Mr Luo's counsel in support of this ground of the application is Mr Luo's answer to question 46. He submitted that the court could not be satisfied on the balance of probabilities that Mr Luo unequivocally understood he had a right not to answer any questions. If that is so, it was submitted, the court cannot be satisfied on the balance of probabilities that Mr Luo truly exercised a free choice to speak or remain silent when he took part in the interview and made admissions.
The first point to be made is that the answer to question 46, as interpreted at the time of the interview, apart from what appears to be either a grammatical infelicity or a typographical error,[29] indicated a proper understanding of the caution, in that Mr Luo was interpreted as saying that what he had been told was 'something like, when you ask me things, I do not [have] to say or do anything'. However, the parties agreed that the court should accept as accurate the interpretation by Ms Zou, whereby Mr Luo is attributed the following answer:
That is, what they ask me, some of them I don't need to say or do anything. Is that right?
[29] 'I do not to say' should read 'I do not have to say'.
The interviewing officer, proceeding on the basis of the interpretation made at the time, said, 'That's correct.'
Counsel for Mr Luo argued that I should conclude from Mr Luo's answer to question 46 that he did not adequately understand that he was not required to answer any question put to him by the officers; rather it appears as though he understood his right to silence applied to only 'some' of the questions, and that misapprehension was not corrected by the officers or through the interpreter. At the very least, it was submitted, the uncertainty should mean that one cannot be satisfied on the balance of probabilities that Mr Luo understood he had a right to remain silent in respect of all questions and freely made a choice to answer questions in that knowledge.
The Crown submitted that the critical part of Mr Luo's response at question 26 was that he acknowledged he had a choice whether he said or did anything. It was submitted that the defence suggestion that he may have thought the freedom of choice applied to only some questions is not borne out in the interview, in that at no time did Mr Luo query whether any particular question was one in respect of which he had a choice to answer. I do not find that argument persuasive, as it assumes a level of sophistication and acumen on Mr Luo's part for which there is no evidence. However, the Crown's first point is more pertinent.
In my opinion, Mr Luo's answer to question 46 demonstrates an understanding that he did not have to answer any particular question if he did not wish to. I am satisfied, having regard to all of the circumstances, that, by referring to 'some of them' Mr Luo was not indicating a belief that there was some category of cases or some particular questions in respect of which he did not have to say anything. Had that been the case, one might well have expected him to seek some clarification at that stage. On the other hand, there would be no need for clarification if he understood that it was a matter for him to decide which questions he answered and which he did not.
The circumstances to which I have had regard include the fact that Mr Luo had already participated in an interview with police three weeks earlier, and had demonstrated an understanding of the caution at that time. It was argued on Mr Luo's behalf that the lapse of time might be expected to have eroded his earlier understanding. There is no evidence to that effect, unless one regards the answer to question 46 as indicating such erosion. The counterweight to that argument is that this was the focus of Mr Luo's life at that point in time. He had been arrested on suspicion of having imported a border controlled drug and was in detention. The first interview had been a very significant part of that process.
The circumstances also include Mr Luo's answer to question 43 in the interview of 25 May 2016, when, the question having been interpreted faithfully, making clear he did not have to say or do anything, he said he understood. Further, as appears from the following passage (which is not in the Annexure), Mr Luo was provided with the rights document in simplified Chinese, which he read:
Q66. No. I'm just going to get a copy of the rights in Chinese, in Cantonese.
INTERPRETER: There is a copy of the rights for you in Chinese.
LUO: Okay.
JORGENSEN:
Simplified or traditional? ... (indistinct) ... GALLARDO:
Q67. Yeah, and is it simplified or traditional Chinese?
INTERPRETER: Do you read simplified or traditional Chinese?
LUO: Simplified.
INTERPRETER: Simplified.
Q68. Simplified. This is a copy of the rights that we've just gone over, Mr LUO, if you can read them and complete the information at the end?
INTERPRETER: Mr Luo, just now he told you in English all your rights, he explained to you. Now this statement is in Chinese. Now you have a look and after you read it, sign there.
LUO: Okay.
INTERPRETER: Fine.
Q69. Okay. Here's a pen, so if you can write your name, sign and date the bottom of the page when you've concluded?
INTERPRETER: Now this is a pen. When you finish reading it, you can sign your name, in Chinese or in English, write it down and then sign your name. Then put on the paper.
LUO: Okay, I know.
INTERPRETER: Understand, yes.
As I noted earlier, at [52] above, although I do not have direct evidence of the contents of the document, the interviewing officer indicated that it reflected the rights he had explained, and Mr Luo did not say anything, after he had read and signed the simplified Chinese version, to indicate that the document was different to what he had been told a short time earlier about his rights.
In any event, as was observed by Gummow and Hayne JJ in Tofilau,[30] the fact that an accused who has made admissions in an interview may have been under some misapprehension or mistake, even if that misapprehension or mistake was induced by the person conducting the interview, does not lead, without more, to the conclusion that the accused had no choice to speak or stay silent. Nor would the existence of some imbalance of power between the accused and the interviewer lead to that conclusion, without more being established.
[30] See [26] above.
Mr Luo did not give evidence in the hearing of his application. There is no direct evidence of his state of mind, in particular whether he felt under some compulsion to answer questions by virtue of the conduct of the police. His state of mind is to be inferred from the contents of the interview. It is significant that at the conclusion of the interview the following exchange took place:
Q188. Okay. Have the questions you answered here today been of your own free will?
A Yes.
Q189. Has there been any threat made to you to answer any of the questions here today?
A No.
Q190. Has there been any inducement made to you to answer any of my questions or Kelly's questions today?
A No.
Q191. And had there been any promise made to you to answer any of my questions here today?
A No.
Q192. Is there anything further that you wish to say?
A No.
Mr Luo's understanding of those questions and the accuracy of the interpretation of his answers has not been challenged. The exchange goes to the core of the issue of voluntariness, namely whether Mr Luo's will was overborne by some conduct of the interviewing officers that had the capacity to do so. My observation of the interviewing officers was that they were polite and respectful of Mr Luo's needs. The exchange at the end of the interview (although formulaic) is evidence that supports, on the balance of probabilities, the conclusion that Mr Luo participated in the interview and made the relevant admissions voluntarily.
Interview of 25 May 2016 - Fairness
Although Mr Luo's argument for the exclusion of the interview of 25 May 2016 rested on the issue of voluntariness, I have given consideration to whether the same factors relied on by counsel on behalf of Mr Luo would justify exclusion of the interview in the exercise of the fairness discretion. It might be, for instance, that while a misapprehension by an interviewed accused about his rights would not justify the conclusion that any admissions were not made voluntarily, the circumstances may render the use of the interview at trial unfair.
I am not satisfied that Mr Luo was under a misapprehension about his rights in such a manner as would justify exclusion of the interview in the exercise of the fairness discretion. For the reasons I have given in the preceding section, I consider he had an adequate understanding of his rights.
There is no doubt that Mr Luo was at a disadvantage - detained in an alien country, unable to speak the language, never having been interviewed by police before and with few resources at his disposal. I am satisfied, however, that any disadvantage suffered by Mr Luo of that kind was adequately addressed by the provision of an interpreter and the careful approach taken by the police to ensure he understood the rights.
Finally, there is no public policy reason to exclude the interview. There is no suggestion of unlawful conduct or impropriety on the part of the police.
Conclusions
In summary, having listened to and viewed the interviews and read the annotated transcripts, which contain the further interpretations, and in the absence of any evidence from Mr Luo, I am satisfied that he understood the caution on each occasion and took part in the interviews voluntarily, so that any admissions made by him were made in the exercise of a free choice to speak or remain silent.
There is no evidence that Mr Luo's will was overborne by anything done by the interviewing officers.
I am also satisfied that Mr Luo understood his rights in relation to communicating with a legal practitioner, and he made the choice ultimately on 3 May 2016 to proceed without a lawyer. On 25 May 2016, he made that choice from the start. I am not satisfied that he felt pressured to take part in either of the interviews without a lawyer.
For the reasons I have given, I am not satisfied that it would be unfair to Mr Luo to admit the interviews into evidence. In respect of each interview, there is nothing in the conduct of the officers or the circumstances of the interview to satisfy me on the balance of probabilities that the admission of the interview would result in an unfair trial for Mr Luo.
Therefore, on 3 October 2017, I ruled that both interviews were admissible and neither would be excluded on the ground of unfairness. I ruled that they would be received into evidence subject to deletion of certain portions I mentioned in the first section of these reasons.
ANNEXURE
| Interview | Record of Interview Transcript Excerpts |
| 3 May 2016 Q18-26 | |
| 3 May Q33-34 | |
| 3 May Q46-47 | |
| 3 May Q49-52 | |
| 3 May Q61-63 | |
| 25 May Q43 | |
| 25 May Q44-48 |
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BC
RESEARCH ASSOCIATE/ORDERLY TO THE HONOURABLE FIANNACA
27 JULY 2018
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