R v Phung and Huynh - [2001] NSWSC 115

CITATION: R v Phung and Huynh [2001] NSWSC 115 revised - 15/05/2001

CURRENT JURISDICTION: criminal

FILE NUMBER(S): SC 70215/99; 70089/99

HEARING DATE(S): 19/02/01

JUDGMENT DATE:
26 February 2001

PARTIES :

Regina
Johnny Phung
Thang Minh Huynh

JUDGMENT OF: Wood CJatCL at 1

LOWER COURT
JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) :

LOWER COURT
JUDICIAL OFFICER :

COUNSEL : Crown: W. Dawe QC
Phung: R. Webb
Huynh: R. McCrudden

SOLICITORS: DPP
Legal Aid
Legal Aid

DECISION: Records of Interview rejected

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WOOD CJ AT CL

MONDAY 26 FEBRUARY 2001

70215/99 - REGINA v JOHNNY PHUNG
70089/99 - REGINA v THANG MINH HUYNH

JUDGMENT - (On admissibility of records of interview
conducted with accused Johnny Phung.
See page 175 of transcript.)

1 HIS HONOUR: Counsel for the accused Johnny Phung has objected to two records of interview conducted electronically with him on 20 December 1998, and on 4 January 1999.

2 Evidence has been received on the voir dire in relation to the issues which arise, concerning compliance respectively with section 13 of the Children (Criminal Proceedings) Act 1987, with part 10A of the Crimes Act (New South Wales) 1900 and with the regulations made pursuant to that Act contained in the Crimes (Detention After Arrest) Regulation 1998.

3 Depending upon the outcome of those issues, his co-accused foreshadowed an application for a separate trial. I have dealt with that application along with an application for severance of the indictment and with various other objections concerning the admissibility of portions of the evidence this morning. It is now appropriate to deliver reasons for my ruling last week concerning the inadmissibility of the two electronic records of interview.

4 Each accused, I note, was arraigned and pleaded not guilty to an indictment containing four counts relating to offences, each of which is alleged to have occurred on 19 December 1998 at the EPI Centre, Liverpool.

5 In short form, the relevant charges in that indictment related to the following: Count one, the armed robbery of John Paul Nguyen; count two, the armed robbery of John Huu Vinh Tran; count three, the murder of Hiep Van Nguyen; and count four, the armed robbery of Van Tri Nguyen.

6 The offences giving rise to counts one and two, it may be taken, are each alleged to have occurred in the course of incidents at about 5pm at the Centre, while those the subject of counts three and four are each alleged to have occurred again in the course of one incident at the Centre at about 10.30pm.

7 The evidence on the voir dire, in the form of statements and evidence from some of the police involved, together with the custody management records, reveals the following:

a) At 12.15am on 20 December 1998, the two accused were arrested by police when stopped in a red Honda Civic that had been sighted driving from the EPI Centre shortly after the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWSC 115
Decision Date: 26 February 2001

CaseChat Overview and Summary

In the case of R v Phung and Huynh, the Supreme Court of New South Wales was tasked with determining the admissibility of two electronic records of interview (ERISP) conducted with the accused, Johnny Phung, on 20 December 1998 and 4 January 1999. The legal issues the court had to decide revolved around compliance with the statutory requirements concerning the provision of a support person, the accused's rights to legal assistance, and the admissibility of the interviews under the Evidence Act. The court found that there were significant non-compliance issues with the statutory regime, raising concerns about the protection of the accused's rights. In the first interview, the court noted issues such as the absence of a support person during forensic tests and the detention warrant process, the selection of an unsuitable support person, and the accused's apparent fatigue and drug use. These issues, taken together, led the court to exclude the first ERISP under sections 90 and 138 of the Evidence Act. For the second ERISP, the court identified similar concerns, such as the lack of proper advice to the accused regarding his rights and the absence of a suitable support person. The court excluded the second ERISP under sections 90 and 138 of the Evidence Act, finding that the failure to comply with the statutory regime outweighed the probative value of the admissions obtained. The court emphasized the importance of adhering to the legislative regime and ensuring proper compliance to protect the rights of vulnerable individuals, such as children and those with limited education or language skills. The court also highlighted the need for thorough documentation and understanding of the legislative requirements by both custody managers and investigating police.

Orders