R v Ng
[2002] VSC 560
•12 December 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1412 of 2002
| QUEEN |
| V |
| EDWARD SHANE NG |
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RULING No 1
JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25-28 November 2002 | |
DATE OF RULING: | 25 November 2002 | |
DATE OF REASONS: | 12 December 2002 | |
CASE MAY BE CITED AS: | R v Edward Shane Ng | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 560 | |
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Criminal Law – Evidence – Ruling as to admission of police interview – Breach of s.464C of the Crimes Act 1958 – Failure to tell accused of right to contact friend or relative and lawyer – Exercise of discretion.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Pullen | Office of Public Prosecutions |
| For the Accused | Mr J Montgomery | Victoria Legal Aid |
HIS HONOUR:
These are the reasons for my having made a pre-trial ruling on 25 November last. The accused, Shane Edward Ng has been charged with the murder on 14 November 2000 of Cameron Rudd. Before his trial began, I was called on to rule as to the admissibility of evidence that the prosecution sought to lead at the trial. The evidence was of an interview of the accused by the police on 11 May 2001, and of other matters preceding that interview, from the time that the accused was arrested that day. Mr Montgomery, who appeared before me for the accused, argued that I should exclude that material in the exercise of my discretion to exclude evidence on public policy and unfairness grounds. The position of Ms Pullen, prosecuting, was that the evidence ought not be excluded. She did concede that there had been, on the part of the police who arrested the accused and conducted the interview, a breach of s.464C of the Crimes Act 1958.
Shortly after 2 a.m. on 15 November 2000, the body of the deceased was found at the end of a cul de sac in an industrial area of Dandenong. It was soon established that death had resulted from the firing of one bullet into the head of the deceased. The deceased was a taxi driver. A few hours after his body was found, his taxi was found in Cranbourne. Further investigations led to the Homicide Squad being provided with various pieces of information which were not easy to link together. The deceased had been in his taxi at a taxi rank in Cranbourne at a time after 10 p.m. on the night of 14 November. The taxi had been seen by a number of witnesses that night at around 11.30 p.m. in James Street, Dandenong. James Street is about three to four kilometres from where the body was found. Other witnesses spoke of hearing a sound like a single gunshot around 11.30 p.m. in or near James Street. The accused was mentioned in investigations, but only in a minor way. He had been spoken to by police and civilians about his having parked his car just off the south Gippsland Highway for an unusually long time on 14 November. That indicated little more than that he was in the Cranbourne area on the day in question.
On 31 December 2000, the accused was apprehended in Burwood. He had been driving a Falcon, later established to be a stolen car. He pulled into a motel off Springvale Road to make some repairs to the Falcon’s bumper bar. Police from Nunawading, one a Senior Constable Jason Stewart, spoke to him in the driveway of the motel. The police told him to turn the motor off. Instead, he drove off and along Springvale Road at high speed. The police pursued him. He drove into Highbury Road. Off Highbury Road, he stopped the car. He ran off carrying a bag. After a time, he dropped the bag. He was caught not long after that. He was carrying a knife. The bag was collected. In the bag was a handgun. He was interviewed by the police. Before the interview, he was told of his rights, including that he did not have to say anything, and that he could contact a friend or relative and a lawyer. He exercised his right to contact a lawyer. He then was interviewed by Senior Constable Stewart. He did not decline to answer questions. He said that the handgun was not his. Charges were laid. The accused was released. The handgun was sent to the Victorian Forensic Science Centre for testing. More than four months passed.
In early May 2001, a firearm examiners established that the bullet which had killed the deceased had been fired by the handgun found on 31 December in the accused’s bag. Senior Sergeant Legg at the Homicide Squad was notified. Mr Legg decided to arrest and interview the accused. Mr Legg had concerns as to how that should be done. He contacted Senior Constable Stewart, as to the events of December 31. He contacted the Special Operations Group. He learned that the accused was believed to be staying at the home of his parents at 13 Hodgson Street, Lower Templestowe. Mr Legg obtained a warrant to conduct a search at that address. The police had more than one concern as to how the arrest and search should be carried out. One concern arose from the assessment that there was a risk that the accused might be armed. Another was that, unless the police went about the arrest and search in an appropriate way, evidence might be destroyed. On 11 May 2001, Senior Constable Stewart telephoned the home of the parents of the accused. At that time, the Special Operations Group were keeping the home under surveillance. Senior Constable Stewart spoke with the mother of the accused. He told her that he wished to speak with the accused. She told him that the accused was not there. Shortly after that, the accused was seen to leave the home, and to board a bus headed for a shopping centre. The concern of Mr Legg as to the possibility of the destruction of evidence was heightened by the indications of deception.
The accused was arrested by members of the Special Operations Group. He was carrying a knife, but not a gun. He was asked for, and gave, his name. He was told he was under arrest and given the usual short caution as to not being obliged to say or do anything. He was then taken to the Heidelberg Police Station. There, an inspector from the Special Operations Group spoke briefly to the accused. Then Mr Legg again gave the accused the usual short caution. Mr Legg did not go on to tell him, as per s.464C of the Crimes Act 1958, of his rights to contact a friend or relative and a lawyer. Mr Legg proceeded to ask questions of the accused, which the accused answered. The accused then went to the home of his mother. En route, the accused was asked and answered further questions. The questions and answers were not recorded. Mr Legg asked the accused if he was responsible for the death of the deceased, and he said he was. In response to further questions, the accused said: that he shot the deceased once; that he was the only person involved; that he would assist in a search of his parents’ home; that he was wearing the same jeans and shoes as on the night of 14 November; and that he had thrown away items taken from the taxi that night. At his parents’ home, the police spoke with the mother and sister of the accused, and later to his father. The accused was then taken to the offices of the Homicide Squad. There he was interviewed and the interview was recorded on videotape. I have watched the videotape played. Before the interview got under way, the accused was given the usual caution and was told of his rights as per s.464C. He said that he understood his rights and that he did not want to exercise them. He made admissions as to having shot the deceased. He answered all the questions put to him by the police.
Before me, Mr Legg was cross-examined on the voir dire. He said that he was well aware of his obligations to tell an accused of his rights. He said that, because of his concerns as to the possible destruction of evidence, he had deliberately refrained from telling the accused of his right to contact a relative or friend and a lawyer, and enquiring as to the accused’s desire to exercise them. That was because he would not have permitted the exercise of the rights in the circumstances.
Mr Montgomery submitted to me that the admissions obtained by Mr Legg shortly after the accused was arrested, and evidence as to the items seized at 13 Hodgson Street, Lower Templestowe, and the record of interview should be excluded on the grounds that it would be unfair to the accused to admit them, and that such material had been obtained improperly or unlawfully. He relied on the principles spelt out, and referred me to particular passages, in the decisions of Shaw (1991) 57 A Crim R 425, Pollard (1992) 176 CLR 177 and Heatherington [1993] 1 VR 649. He argued that I should find: that there had been a blatant disregard by Mr Legg of the accused’s rights; that Mr Legg did not have a genuine concern about the destruction of evidence; and that Mr Legg should have exercised other options if there was such a concern. He argued that I should hold that the breach should be treated as having infected all the investigative work that followed.
Section 464C of the Crimes Act 1958 imposes a duty on police to inform a person in custody of the matters prescribed (including his right to have contact made with a friend or relative and a lawyer) and to defer questioning or investigation for a time that is reasonable in the circumstances to enable such person to communicate with a friend or relative and a lawyer. The section was analysed in depth in Pollard. The principles laid down in Pollard have been considered and applied in many later cases, including Percerep [1993] 2 VR 109, Heatherington (1994) 179 CLR 370, Tang [1998] 3 VR 508, and Swaffield (1998) 192 CLR 159. Those cases have underlined the need for the judge to assess the seriousness of a breach of s.464C. The object of the section is to ensure that a person is treated fairly while in custody. A breach of the section does not necessarily lead to a rejection of the evidence. Where there is a breach, a judge has a discretion to exclude the evidence.
I ruled that I would exclude the preliminary unrecorded questions and answers, but that I would allow into evidence the recorded interview and a short statement of the findings on the execution of the search warrant. There was a breach of s.464C. Mr Legg should have told the accused of his rights as required by that section. I accept that Mr Legg did have a genuine concern about the possible destruction of evidence. There were reasons for the police treating the accused and his family with special caution. Even allowing for the benefit of hindsight, I say that Mr Legg could and should have addressed his concern in a way that involved telling the accused of his rights. In the circumstances, I regard the breach as serious, but not very serious. I have taken into account considerations of public policy. I do not see any real risk that my not excluding this interview would encourage the thinking that further breaches of s.464C would be condoned. I do not accept that there would be unfairness to the accused, in the relevant sense, in admitting the interview. In that regard, I would note that I took account of the fact that the accused had, as recently as a little over four months before he was arrested, exercised his right to contact a lawyer. I allowed for it in two ways, one to some extent counterbalancing the other. On the one hand, it showed that he was well aware of the right. In a sense, therefore, it was not so significant that he had not been reminded of it. On the other hand, a right once exercised is a right valued which ought to be the subject of a reminder. Most importantly, I took account of the fact that the accused, when told at the start of the interview of his right to consult a relative or friend and a lawyer, promptly said that he understood those rights and did not want to exercise them.
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