R v Qiang Sun
[2004] VSC 275
•10 August 2004
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1497 of 2003
| THE QUEEN |
| v |
| QIANG SUN |
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JUDGE: | TEAGUE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1-4 and 5-17 March 2004 | |
DATE OF RULING: | 3 March 2004 | |
DATE OF REASONS: | 10 August 2004 | |
CASE MAY BE CITED AS: | R v Qiang Sun | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 275 | |
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Criminal Law - Evidence - Admissions to police - Voluntariness and fairness issues - Claims of police impropriety not made out - Material not excluded
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Leckie SC | Office of Public Prosecutions |
| For the Accused | Mr D. Brustman | Victoria Legal Aid |
HIS HONOUR:
These are the reasons for my having ruled against the application made to me to exclude from evidence what was said and done by the accused in the hours after his arrest on 2 January 2003.
The accused Qiang Sun was charged with the murder on or about 20 December 2002 of Mei Kei Wong. His trial on that charge was listed to start on 1 March 2004. Before a jury was empanelled, I heard an application to exclude evidence of what the accused said and did in the hours after his arrest. I heard evidence on the voir dire from ten witnesses. The accused himself gave evidence. Five members of the police force gave evidence. Their surnames were Daly, Grieve, Legg, Owen, and Stewart. They were present at one or more of the arrest, a later discussion in a police car, a formal taped interview, a medical examination and a welfare check. I heard evidence from the interpreter and a doctor brought in by the police, one to translate for the accused, the other to medically examine him. The evidence of the interpreter was that his focus was on translating. He said, and I accepted, that he had no contribution to make as to the substance of what was said or as to the position of the accused. His evidence had no impact on my ruling. I heard evidence too from two former teachers of the accused. Mr Brustman raised an objection to the calling of the teachers, but accepted that that objection need only be addressed in certain circumstances. As the evidence of the two teachers had no impact on my ruling, I need not address the issue of the admissibility of their evidence.
Apart from seeing ten witnesses questioned, I watched with care the videorecording of the interview of the accused. I note that I was impressed by the credibility of the five police, the interpreter and the doctor in their evidence before me. I was not impressed by the credibility of the accused. In the many areas where there were differences between his account and that of the other witnesses, I preferred their evidence to his.
The body of the deceased was located in a paddock at Coldstream on 27 December 2002. The body had been burnt to a substantial extent. No precise cause of death was apparent. Identification of the deceased took some time, as did investigations into who had been those last known to be with her. Through enquiries stemming from the use of an ATM card of the deceased in late December, suspicion fell onto the accused. Arrangements were made to arrest him on 2 January 2002. The evidence from the five police, the interpreter and doctor was, essentially, that the accused was from the time of his arrest, treated in a normal way, and as required by law. At the time of arrest, he was cautioned and told of his rights. He was escorted to where his car was parked, then to his flat, then to the offices of the Homicide Squad. There, he was again cautioned and told his rights. Arrangements were made for an interpreter to attend. After again being cautioned and told his rights, he was asked questions as to his links to the deceased. While in the police car outside his Collingwood flat, the accused said some things to the police about the deceased. Those things were not recorded on tape, but they were noted by the police. He was later spoken to in the interview about what he had said in the car.
Before the interview concluded, the accused was medically examined. No signs of injury were found, such as might have been found if the accused had been assaulted. After the interview concluded, the accused was asked by a senior independent police member if he was satisfied with police treatment. Through the interpreter, he said that he was very satisfied.
The accused gave evidence before me as to the events of and after his arrest that was very much at odds with that given by the police. What he said, included: that no police at the time of arrest had cautioned him; that no police then told him his rights; that he had not been asked for his address; that he had not been told at the time of his arrest, why he was being arrested; that a policeman yelled and swore at him; that a policeman accused him of being a murderer; that, while he was seated in the police car, a policemen threatened the accused by placing a shirt against the car window; that Detective Daly hit the accused while both were seated in the police car; that a policeman threatened to contact Chinese authorities; that a policeman used or went through the process of using a mobile phone in a way calculated to frighten the accused by referring to Chinese authorities.
The accused was questioned as to matters going to his understanding of the processes. What he then said included that he did not understand many of the matters put to him in the recorded interview, and that he had opted not to complain to the doctor or to other police about what had occurred, in part that because he felt that he could not trust anyone, and in part because he felt exhausted and frightened.
Mr Brustman for the accused put to me that the matters sought to be led in evidence should be excluded as not having been made voluntarily. He argued, in the alternative, that I should exercise my discretion to exclude the material as it was unfair to the accused. In the alternative, he argued that there had been a failure to effectively confirm, in the recorded interview, as per legislative requirements, what had been said in the police car outside the Collingwood flat.
The legal principles as to voluntariness and fairness to be applied by me are well known and much reviewed. They are relatively recently summarised in the reasons given in The Queen v Swaffield and Pavic (1998) 192 CLR 159.
The legislation that Mr Brustman referred to is section 464H of the Crimes Act 1958. The relevant part of the section reads:
464H. Tape-recording or video-recording of confessions and admissions
(1) …evidence of a confession or admission made to an investigating official by a person who –
(a) was suspected; or
(b) ought reasonably to have been suspected –
of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless…
(e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the question and anything said by the person questioned was tape-recorded, or the substance of the confession or admission was confirmed by the person questioned and confirmation was tape-recorded…
I have earlier mentioned that I accepted the evidence of the five police officers and the doctor, and not that of the accused, where his evidence differed. I would add that I also doubted that the evidence of the accused as to his lack of understanding was to be accepted at face value. My assessment of the evidence of the five police officers and the doctor was that they were following routine, rather than together or individually going out of their way to be threatening or nasty. I recognise the need for a degree of scepticism as to making too wide a generalisation about how the police proceed normally. Nevertheless, it seemed to me that the police who gave evidence before me were rather of the kind disposed to consider that being polite and respectful was more likely than force to lead to co-operation.
My assessment of the evidence of the accused was that most questions were carefully weighed up by him in a process of calculating not so much the truth, as what answer would best advance his position. Further, there were occasions when he gave answers that I found inherently incredible. As to some matters, I had the benefit of watching him answer police questions on the videotape. For example, as to not understanding the caution despite it having been put to him several times, he claimed that, when given the translated version, he was not paying attention. There were other times when he was not prepared to make what appeared to be to sensible concessions sought from him. Further, if the story of the accused was correct, a number of police officers had used against him various means of force and intimidation, and had conspired to disadvantage him. I am even more disposed to be sceptical about claimed group improprieties than individual ones. Further, there was little if any independent support for the story of the accused. Further, I formed the impression from viewing the videotape of the interview that the two policemen involved in the interview were appropriately polite and respectful, and that the accused was appropriately co-operative. Both generally, and more particularly as to matters going to his rights, the accused appeared to act and speak as if he understood what was put to him, and made deliberate choices accordingly.
A minor additional consideration stemmed from a review of the questions put to the police by Mr Brustman, who is experienced and thus assumed likely to get detailed instructions. Several claims later made by the accused of allegedly improper acts and omissions on the part of the police were not earlier put to the police. Some matters of impropriety that were put earlier to the police were not claimed by the accused later to have occurred.
Finally, I was satisfied that section 464H of the Crimes Act had been complied with. Mr Brustman criticised the broad questions used by Detective Ryan in the interview to draw the attention of the accused to what he had earlier said in the car. There is not just one focused formula or unexceptional approach which must be applied in framing the question or questions asked to seek to confirm the substance of the confession or admission. I have set out in the next paragraph a table prepared by me. One column contains a short version of what was said by the accused in the car as claimed by police. The other contains a short version of what the accused said in the interview in response to Detective Ryan’s questioning. A comparison of the two makes it sufficiently clear that there was a confirming of the substance as required by the section.
Car Interview Mickey asked me at lunchtime where I was going after work Mickey asked me at about lunchtime where I will be going in the evening I lock her up and take her here I took Mickey home I lock her inside my room I left Mickey at home I went to Box Hill and get some money I drove to Box Hill
I went to withdraw moneyI pick up Julie at work I drove my car to pick up Julie She say Mickey got to disappear She say we need to make Mickey disappear We get here and Mickey asleep in bed. When we returned, Mickey was lying down in my bed. I suppose she must have just gone into sleep Julie put cloth on Mickey’s face She used the towel to close Mickey’s mouth I held her legs I was holding her legs Julie tie her hands Julie tied up her hands I tie her legs (Q re Mickey’s legs) I just tie it up I go to my girl friends in Little Bourke Street I went back to my girlfriend’s place
For the reasons set out above, I was well satisfied that there was no justifiable basis for excluding the whole of the material sought to be excluded. That left for separate consideration the possible exclusion of, for example, a particular segment of the interview.
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