R v Nguyen, Ho and Nguyen (Ruling No. 1) - [2006] VSC 517

IN THE SUPREME COURT OF VICTORIA	Not Restricted
AT MELBOURNE CRIMINAL DIVISION
No. 1524 of 2005
THE QUEEN
v
NGUYEN, HO AND NGUYEN

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JUDGE:

WILLIAMS J

WHERE HELD:

Melbourne

DATE OF RULING:

17 November 2006

CASE MAY BE CITED AS:

R v Nguyen, Ho and Nguyen (Ruling No. 1)

MEDIUM NEUTRAL CITATION:

[2006] VSC 517

Revised 31 October 2007

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Pirrie with	Office of Public Prosecutions
Mr R Hammill
For the First Defendant	Mr W Toohey	Haines & Polities
For the Second Defendant	Mr W Stuart	Valos Black & Associates
For the Third Defendant	Mr M Rochford	Michael J Gleeson & Associates
HER HONOUR:

The defendants are charged with the murder of Hieu Trung Luu, the attempted murder of Chau Nguyen and with intentionally causing injury to each of Hung Nguyen and Viet Tran in the early hours of 8 November 2004 at Carlton.
Mr Dang Quang Nguyen was interviewed by Detective Senior Constable Andrew Kilpatrick, the informant, and his corroborator, Senior Constable Habben. The interview commenced at 8.24pm on the day of the alleged offences. It was first suspended six minutes later at 8.44pm when Mr Kilpatrick informed Mr Nguyen that police were about to make further inquiries. The interview re-commenced at about 11:22pm After 31 minutes, the interview was again suspended in order for the police to ascertain the result of a search being conducted at Mr Nguyen’s home. The third part of the interview took place in the seven minute period between 1.30 and 1.37am on 9 November 2004.
The prosecution seek to have the record of interview admitted into evidence on a number of bases yet to be fully articulated. Counsel for the prosecution have indicated that they will submit that some statements of Mr Nguyen can properly be characterised as admissions and that others are lies demonstrating consciousness of guilt on his part. More generally, they contend that the record of interview is evidence relevant to his credit.
There are a number of challenges to the admissibility of the interview by counsel for Mr Nguyen. The first is to the effect that his statements were not made voluntarily. It is submitted on Mr Nguyen’s behalf that he did not speak voluntarily in the free exercise of his right to speak or remain silent; see McDermott v The King.[1] I note that the relevance of the record is also disputed and counsel for Mr Nguyen has foreshadowed argument relating to the allegations that he made admissions or told lies to the police. Mr Nguyen may also argue that the evidence should be excluded in the exercise of the Court’s discretion on the basis that its prejudicial effect outweighs its probative value or in the exercise of the discretion to exclude evidence which it would be unfair to admit.
[1] (1948) 76 CLR 501.
A voir dire hearing was conducted, during which the videotaped record of the police interview with Mr Nguyen was played. The informant, Mr Kilpatrick, and Mr Nguyen both also gave oral evidence to the Court. I note that I was not persuaded by Mr Nguyen’s evidence to the extent that it conflicted with that of the informant in relevant respects.
Mr Kilpatrick told the Court that Mr Nguyen was arrested at 7.40pm on 8 November 2004 and brought to the Richmond police station in his brother’s car. He arrived at the police station at 8.15pm and was placed in an interview room where he remained whilst police searched the car. After some 20 minutes, the first part of the interview commenced.
Mr Kilpatrick told the court that he was satisfied of Mr Nguyen’s fitness to be interviewed. He expressed the opinion that Mr Nguyen was feigning sleepiness when it suited to avoid responding to questions, the answers to which might incriminate him. He said that he had spent time with Mr Nguyen and that day observed no signs that he was affected by alcohol or drugs. He did not smell of alcohol on his breath or notice any glazing of his eyes.
Mr Kilpatrick also said Mr Nguyen was able to be easily understood when he was speaking clearly and that, in his opinion, he did not require the services of an interpreter. In this regard, the informant told the Court that he had looked at records of previous police interviews and had noted that Mr Nguyen had not required an interpreter on those earlier occasions.
Mr Kilpatrick said that Mr Nguyen was not drunk at the time of the interview, although Mr Nguyen stated during the interview that he had been drunk on the previous night. Mr Kilpatrick referred to his experience and said that he commonly allows people detained by police time to sleep before interrogation, if there is a need to do so. He said that he would have adopted that course with Mr Nguyen, had he thought it necessary.
Before his interview commenced, Mr Nguyen had told police that he had indigestion. The videotape records that Mr Kilpatrick subsequently asked Mr Nguyen if he needed to see a doctor in relation to the indigestion and that Mr Nguyen had indicated that he did not, by shaking his head. Mr Nguyen agreed that a drink would settle his to stomach and was told that, if he had pain, or if there was something wrong with him, the doctor would be rung for. In effect, he was asked if this was “okay”. He responded to this information, saying, “Yes, thank you”.
Counsel for Mr Nguyen submits that the combined oral evidence of Mr Nguyen and that provided by the videotape of the interview should persuade the Court that the prosecution has not discharged its onus to satisfy it that Mr Nguyen made his statements voluntarily. He submits that the Court might accept that Mr Kilpatrick was truthfully stating his opinion whilst, nevertheless, coming, independently, to the conclusion that the requisite voluntariness was absent.
Counsel relies in support of his contentions that Mr Nguyen was not in a fit and proper state to be interviewed, and therefore not exercising the requisite choice, upon Mr Nguyen’s demeanour and manner of speaking during the interview. He relies upon Mr Nguyen’s yawns at various stages of the interview and failures to reply on others at other times.
Counsel for the prosecution responds that a viewing of the videotape indicates that the accused man understood the questions asked and answered responsively. He argues that Mr Nguyen understood his rights when informed of them and chose not to exercise any of them. I agree. Indeed, as counsel points out, at one point, that Mr Nguyen said in his oral evidence to the Court that he did understand the information given to him, in English, as to those rights.
In relation to his alleged sleepiness, counsel for the prosecution points out that Mr Nguyen told police that he had been drunk on the night of 7 November and that he had returned home to sleep at 11pm that night. He maintained during the interview that he had slept when he went home and that he had woken at 9am on the morning of 8 November. He said that he had stayed at home on the day of the 8th, having nowhere to go and having been drunk the night before. As a result, the Court should not conclude that he was so tired as to be unfit to be interviewed on 8 November, at the relevant times, according to the prosecution.
I have watched the videotape of the interview again, after hearing the submissions of counsel and the evidence of Mr Kilpatrick and Mr Nguyen. I note that the videotape shows that Mr Nguyen often appears to close his eyes and to remain still and silent after being asked a question. I have taken into account both Mr Nguyen’s evidence and that of Mr Kilpatrick as to his opinion that Mr Nguyen was feigning sleepiness, in order to have time to consider the answers to what might be described as more difficult questions, or questions, the answers which might incriminate him.
The evidence from Mr Kilpatrick that he is an experienced police officer was not contested. Mr Kilpatrick was present with Mr Nguyen, and had been with him earlier in the evening.
As far as Mr Nguyen’s evidence is concerned, I am not persuaded by it, to the extent that he maintained that he did not understand the questions put to him or that he did not seek an interpreter because he had asked police for one on several previous occasions and his requests had been refused. Under cross examination, Mr Nguyen also acknowledged that he knew how to say that he did not understand, in English.
I note that Mr Nguyen explained his tiredness during the interview on the basis that he had been drunk the previous night, rather than on the night of the interview. He acknowledged that he was asked whether he was happy to go on talking to police, and said simply that he wanted to continue to “get it over with” and have a rest. He did not say that he wanted to stop the interview.
I am satisfied, on the balance of probabilities, that Mr Nguyen was not overcome with sleepiness when he delayed answering what might be described as significant questions. He readily responded to some matters, such as the make of his car, and showed interest when being shown clothes police had found at his flat, in my opinion. It is also common ground that Mr Nguyen had some sleep during the intervals between the two interview periods.
I note further that Mr Nguyen told the Court that it was the night before the interview when he was drunk, not the night of the interview. Further, there was no evidence that he was affected by drugs at the time of the interview. Mr Nguyen was asked his name and address and replied responsively. He was informed that he was being interviewed in relation to the murder of Hieu Luu and informed of his rights. At no time did he state he did not understand what was being said. Indeed, throughout the interview, in my opinion, Mr Nguyen demonstrated an understanding of the questions being put to him in English. He answered a number quite readily. But, as I have said, he delayed answering others touching on matters which might have been characterized as more significant in terms of his incrimination.
In my opinion, the prosecution has established on the balance of probabilities that the statements in the interview were made voluntarily.

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