R v Tan Phuong Le (No 1)

[2010] NSWDC 20

CITATION:	R v Tan Phuong LE (No 1) [2010] NSWDC 20
HEARING DATE(S):	24 February 2010
JUDGMENT DATE:	24 February 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	Interview to be admitted.
CATCHWORDS:	CRIMINAL LAW - Judgment - Admissibility of interview
LEGISLATION CITED:	Evidence Act 1995
PARTIES:	The Crown Tan Phuong LE
FILE NUMBER(S):	DC 2008/00018555001
COUNSEL:	Mr M Johnston - Crown Mr F Santisi - Defendant
SOLICITORS:	Director of Public Prosecutions (Cth) Tsambas & Co Solicitors

JUDGMENT

1 HIS HONOUR: Objection has been taken by Mr Santisi who appears for the accused to the tender of the contents of an interview which his client had with police officers. I have read a transcript of that interview and viewed an electronic recording of the early part of the interview.

2 The objection is taken on two grounds. The first is that Mr Santisi says that the police officers have failed to comply with the requirements of s 139(1)(c) of the Evidence Act, which requires that before starting questioning, the investigating official caution the person that the person does not have to say or do anything, but that anything the person does say or do may be used in evidence. It is important to understand here that the accused is far from fluent in the English language, and was assisted in the course of the interview by a Vietnamese interpreter. Of course I do not understand what was said between the interpreter and the accused when they were conversing in Vietnamese. I can only go on and rely on the words spoken in English.

3 The second aspect of the objection is that it was - according to Mr Santisi - improper for the officers to proceed the way they did, because it was incumbent upon them to ensure that the accused understood the caution that was given to him. I should also make reference at this stage to s 139(3) which requires that the caution is given in or translated into a language in which the person is able to communicate with reasonable fluency.

4 As I said, the interview was conducted with the aid of an interpreter. The interpreter spoke to the accused in what I understand was Vietnamese, and there has been no suggestion that the accused was not reasonably fluent in that language. I am satisfied that the police did not act improperly, either under s 139(1)(c) or more generally. I am satisfied that the accused well understood that he had the right to remain silent.

5 The relevant parts of the interview include these: at question 7 the officer says this:

“We intended to ask you further questions in relation to this matter, but before we do I must caution you that you do not have to say or do anything, but anything you do say or do may be used as evidence. Do you clearly understand this caution?”

As the interpreter is speaking to the accused after the police officer said those words in English, it is apparent that the accused nodded throughout. The answer given by the interpreter on behalf of the accused to that question was “Yes”.

6 The officer then, quite properly, asked the accused to tell him in his own words his understanding of the caution. This is the answer given:

“It is like those questions put to me there is no-one here forced me to say anything, but whatever I say is true that I am willing to say in no-one else is asked me.”

When that answer is looked at in the light of the following two questions and answers, it is apparent that the accused is not only explaining his understanding of the words that were just said to him, but goes on to volunteer his asserted honesty. I do not understand all of what he says to be his explanation of the caution that was given to him. Part of it is, as I said, but also part of it is him volunteering the idea that he will be telling the truth to the police officers.

7 These words are important: coming at the end of his answer to question 10. The accused says, “I have the right to refuse to answer”. Those words are rather important because Mr Santisi puts as one of his arguments the proposition that the words addressed to the accused did not make it clear that he had a right to refuse to answer. I had trouble with this submission when Mr Santisi put it to me. The officer complied with 139(1)(c) and the difference between telling someone that they do not have to do or say something, and telling them that they have a right not to do or say something, is one which escapes me. Nevertheless, the accused answers in a way which indicates that he understood that he had such a right in any case.

8 Further of importance is the circumstance that the police officers give a document to the accused which sets out, in the Vietnamese language as I understand it, the caution that the officer had earlier given in English. I am prepared to proceed on the assumption, and Mr Santisi did not suggest otherwise, that the document given to his client was a Vietnamese translation of the words which the police officer had already spoken, that is, that in Vietnamese the document said that the person does not have to do or say anything, but anything the person does or says may be used in evidence. Thus, that is a complete answer as I can see it to the suggestion that the police did not comply with 139(3).

9 I should point out that when that document was given to the accused, he appeared to read it and took a few minutes to do so before signing his name on that document. I should also point out that the police officers remind the accused that he does not have to answer their questions on at least two other occasions at questions 49 and 74. And finally, I should draw attention to the circumstance that police actually arranged for the accused to speak to a solicitor. We of course do not know what was said during the conversation that the accused had with this solicitor, but it would be a fairly safe assumption that during that conversation the solicitor explained to the accused that he did not have to answer police questions if he did not want to.

10 In those circumstances I have great difficulty in understanding how it could be suggested that the police have acted improperly. They have, as far as I can see, done a great deal to ensure that the accused understood that he did not have to answer their questions and that if he did what he said would be used in evidence against him. I am satisfied also that it is apparent that the accused understood that, both from what he said to the police and his actions during the interview.

11 On of Mr Santisi’s points is that the police officer fails to tell the accused that what he says can be used in evidence against him. Mr Santisi makes the point that although the officer says that the accused’s statements can be used in evidence he does not say that that could be evidence against him. I reject that argument as somewhat fanciful given the circumstance that immediately before the officer cautioned the accused he told him that he was investigating an allegation that the accused was in possession of a commercial quantity of methylamphetamine, also known as ‘ice’, and that he imported a commercial quantity of amphetamine. I have got no doubt at all that the accused well understood that if he said something to the police it could be used as evidence against him.

12 The material before me satisfies me that the police not only cautioned the accused as they were required to but also that the accused understood the caution.

13 I note in passing, although I have not found it necessary to take this matter into account, that there was no evidence from the accused, to suggest that he did not understand the caution, put before me on this application.

14 The result is that the interview will be admitted.

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