R v Quach

[2002] NSWCCA 519

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:     REGINA v QUACH [2002]  NSWCCA 519

FILE NUMBER(S):
60311/02

HEARING DATE(S):    29/11/02

JUDGMENT DATE:      20/12/2002

PARTIES:
Regina
Tan Gai Quach

JUDGMENT OF:        Spigelman CJ Sully J James J   

LOWER COURT JURISDICTION:       District Court

LOWER COURT FILE NUMBER(S):     01/11/0930

LOWER COURT JUDICIAL OFFICER:   Andrew DCJ

COUNSEL:
A J Bellanto QC / P Byrne SC (Appellant)
D M L Woodburne (Crown)

SOLICITORS:
Borak & Co (Appellant)
S E O'Connor (Crown)

CATCHWORDS:
CRIMINAL LAW
EVIDENCE
Admissibility of evidence of prior criminal conduct where not adduced for tendency purpose
Relationship between propensity evidence at common law and tendency evidence under Evidence Act 1995
Where accused was subject of telephone intercepts said to reveal prior heroin supplies
Where accused charged with supplying heroin
CRIMINAL LAW
DIRECTIONS TO JURY
Whether directions to jury about evidence of prior criminal conduct were adequate to prevent tendency reasoning
Where directions were given in terms requested by accused's counsel
CRIMINAL LAW
EVIDENCE
Improperly obtained admissions
Discretion  to admit ERISP
Where answers obtained after accused claimed right to silence
Where caution not given until part way through interview
Whether cause to believe truth of answers adversely affected

LEGISLATION CITED:
Drug Misuse and Trafficking Act 1985
Evidence Act 1995

DECISION:
Appeal dismissed

JUDGMENT:

- 42 -

IN THE COURT OF
CRIMINAL APPEAL

60311/02

SPIGELMAN CJ
SULLY J
JAMES J

Friday 20 December 2002

REGINA  v  Tan Gia QUACH

Judgment

1. SPIGELMAN CJ:  I have had the benefit of reading the judgment of Sully J in draft. I agree generally with his Honour’s reasons but wish to add some observations on the admissibility of the intercepted telephone calls. The submissions in this respect were expressed in terms of “tendency reasoning”, invoking s97 of the Evidence Act 1995. A parallel submission could perhaps have been based on “coincidence”, invoking s98. Nothing turns on the distinction and I will focus on s97 as the submissions did.

2. The Appellant’s submissions proceeded on the basis that the intercepts were only admissible as “contextual background” to prove an association between the Appellant and Phuong Tan Le.  It was submitted to this Court, but not to the trial judge, that for that purpose parts of the conversations could have been admitted without any reference to drugs.  A distinction was suggested between the use of the tapes to establish the fact and frequency of conversations between Le and the Respondent, the relevance of which was conceded, and the content of the conversations.

3. The trial judge was not invited to undertake any such task of editing.  Nor were the individual conversations analysed separately with a view to a separate decision being made on each of them for any purpose including, for example, the separate application to each of s135 or s137 of the Evidence Act 1995. Experienced counsel objected to the entirety of the tapes, including the evidence of voice identification.

4. The more refined analysis suggested, but not developed, in submissions to this Court was never attempted below.  In any event, there are parts…