R v Tang - [2010] VSC 578

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1484 of 2009

THE QUEEN
v
TAI SHUM TANG	Accused

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	8,9, 10, 12 and 15 November 2010.
DATE OF RULING:	15 November 2010
CASE MAY BE CITED AS:	R v Tang
MEDIUM NEUTRAL CITATION:	[2010] VSC 578

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EVIDENCE ACT 2008 (Vic)- Sections 84; S 85; Admissibility of interview – S 90 Whether discretion engaged – S 138 Whether illegalities or impropriety.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C Quin	Solicitor for Public Prosecutions
For the Accused	Mr S Johns	Balmer & Associates

HIS HONOUR:

Introduction

The body of Van Nguyen was found partially burnt in a rubbish skip at Keysborough in the early hours of 14 September 2008. The accused, Tai Shum Tang, was arrested at his unit in Richmond at 3.10am on Thursday 18 September. He was taken to the Homicide Squad offices at the St Kilda Road complex some time later at about 7.30am. There is very little, if any, dispute about the events between accused’s arrest and the commencement of the interview at 8.59am. I shall summarise those events.

At 3.10am a number of Homicide investigators, including the informant Senior Detective Gray, executed a search warrant at Unit 3, 97 Elizabeth Street Richmond. The accused who had been asleep, opened the door. Detective Gray, the subsequent informant, pushed the door open after it had been unlocked. It may have contacted the accused’s knee. There is dispute as to whether the accused went to ground after police gained access to his flat. It is unnecessary to resolve this as the accused did not suffer any significant physical injury upon his restraint and subsequent arrest by the police. He was handcuffed and his flat was searched. A number of other occupants were interviewed.

Using another occupant as an interpreter, Detective Gray sought to advise the accused that he was under arrest for murder. The accused speaks no English. A telephone interpreter was engaged. Through the telephone interpreter the accused identified himself and was informed that:

(a)he was not obliged to say or do anything, but anything he did say or do may be given in evidence (“the right to silence”). The accused stated that he understood this;
(b)he may communicate with or attempt to communicate with a friend or relative to inform that person of his whereabouts and that he may communicate or attempt to communicate with a solicitor. I consider that it is apparent from Detective Gray’s statement dealing with this conversation[1] that he had a broad understanding of these rights (“the rights to communicate”). He indicated he wished to contact a solicitor.

[1]See Statement of Detective Senior Constable Gray p 55ff depositions.

At 4.55am Detective Gray made an unsuccessful attempt to contact Victorian Legal Aid. The accused was told that a solicitor would be contacted when the accused was taken to the Homicide Squad.

At 5.20am the accused’s vehicle, a…

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.

Continue reading R v Tang

Details

AGLC: R v Tang [2010] VSC 578
Case: [2010] VSC 578
Decision Date: 15 November 2010

CaseChat Overview and Summary

The case of R v Tang before the Victorian Court of Appeal involved a conviction for drug trafficking and related charges. The appellant, Tang, sought to appeal against the conviction on the basis that certain evidence obtained during a police interview was inadmissible. The evidence in question was an interview conducted by police after the appellant had been arrested and was in custody. The primary judge had admitted the interview evidence despite objections from the appellant's counsel. Tang contended that the evidence should not have been admitted because it was obtained in a manner that breached the provisions of the Evidence Act 2008 (Vic), specifically sections 84 and 85, and that the discretionary provisions under sections 90 and 138 should have precluded its admission.

The central legal issues the Court of Appeal had to address were whether the discretionary provisions of the Evidence Act 2008 (Vic) were properly engaged and whether the evidence was obtained through illegalities or impropriety. Specifically, the court needed to determine if the interview was conducted in a manner that violated the appellant's rights and whether the evidence derived from this interview should have been excluded under the discretionary provisions of the Act. The court also had to consider whether the primary judge correctly applied the law in admitting the evidence.

The Court of Appeal held that the primary judge did not err in admitting the interview evidence. The court found that the discretion under section 90 of the Evidence Act 2008 (Vic) was not engaged because there was no significant unfairness in admitting the evidence. Additionally, the court concluded that the evidence was not obtained through any illegalities or impropriety that would warrant exclusion under section 138 of the Act. The court found that the police adhered to the necessary protocols and that the evidence was relevant and probative. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders