R v To and Tran

[2006] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal)

R v TO AND TRAN

Reasons for Ruling of The Honourable Justice Vanstone

28 April 2006

CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - PROPRIETY OF POLICE QUESTIONING AND OTHER CONDUCT BY POLICE - ADMINISTERING CAUTION

Application to exclude evidence after voir dire - accused made statements to police on two occasions - no caution administered on first occasion - application for discretionary exclusion of statements - whether reasonable grounds for suspicion at time of first conversation - whether duty to inform accused that he was a suspect at time of second conversation - consideration of appropriate wording of caution - whether use of statements in evidence would be unfair to accused - discretion to exclude evidence not exercised.

Summary Offences Act 1953, s 74D, s 79A; Criminal Law (Forensic Procedures Act) 1998, s 14, s 15, referred to.
R v Tracey & Ors (No 5) (2005) 93 SASR 101; Van der Meer & Ors v The Queen (1988) 62 ALJR 656; R v Dolan (1992) 58 SASR 501; R v Murphy (1996) 66 SASR 406; R v Bueti & Morrissey (1997) 70 SASR 370; R v Lavery (1979) 20 SASR 459; Practice Note (Judges' Rules) [1964] 1 WLR 152, considered.

R v TO AND TRAN
[2006] SASC 126

Criminal

1. VANSTONE J:     The accused, Duong Thanh To, is charged, jointly with Mau Tran, with the murder of Man Bun Hung, on 18 February 2004 at Auldana.

2. By Rule 9 application dated 1 March 2006 the accused To sought the exclusion from the case against him of certain evidence, in the form of statements attributed to him by police.  In each case Ms O’Connor, for the accused To, submitted that the statements should be excluded as a matter of discretion.  There was no suggestion that the statements made by the accused were involuntary.  The onus of persuasion in respect of discretionary exclusion is on the accused. 

3. There were two occasions in issue. In respect of a conversation on 6 May 2004 it was suggested that it would be unfair to admit the statements as the accused should have been, and was not, cautioned. Further, it was said that the circumstances calling for a caution also required that the conversation should have been recorded in accordance with s 74D Summary Offences Act 1953.  It was then submitted that irrespective of my decision as to the need for a caution, the account of the conversation offered was so deficient in terms of accuracy that it should be excluded.

4. The next conversation occurred on 20 May 2004.  Here, the argument was that although a caution was administered, there was a further obligation on the police, and a failure by them, to inform the accused that he was a suspect in a murder enquiry.  Reliance was placed on the decision of Nyland J in R v Tracey & Ors (No 5) (2005) 93 SASR 101. Further it was argued that if the 6 May conversation was improperly obtained, then that, in its turn, “tainted” the 20 May conversation, as the accused would have been aware of what he had said earlier and might conceivably have been embarrassed and constrained by it. No authority was cited to support the latter proposition advanced in respect of the 20 May interview. Ms O’Connor did not suggest there was any contradiction between anything said by the accused on the two occasions.

5. In his statement of 26 August 2004 Detective Brevet Sergeant Mitchell deposed that on 6 May 2004 he attended, with two other detectives, at the home of the accused To at 25 Athol Avenue, Athol Park.  By this time almost three months had elapsed since the alleged murder on 18 February 2004.  At this time, the co-accused Tran was suspected of the murder, but had not been arrested.  Detective Mitchell’s statement records that he there spoke briefly with the accused To and that he made what he called “abbreviated notes” as the conversation progressed.  A copy of those notes, now marked “VDTO3”, were tendered on the voir dire.  The notes make no reference to the questions asked, but record answers said to have been given by the accused, although not verbatim.  Detective Mitchell gave evidence of his attendance and the conversation, relying on his memory as prompted by the notes.  As I understood his evidence, he was able to give the effect of the questions asked and, accurately, the answers given.  There were no other witnesses called on the voir dire.

6. Detective Mitchell said that during the conversation the accused To told him that he had known the accused Tran for two years, that he had not seen Tran since 18 February, that he had Tran’s mobile telephone numbers – which he gave to Detective Mitchell – that he knew Flora (Tran) “sort of”, that he knew nothing about the car park (being the State Centre Car Park in Gawler Place, Adelaide, owned by the deceased), that he had heard from a Thai girl named Jane, who was associated with a karaoke bar, that the accused Tran had committed the murder, that he knew Michael, the cook at the East Taste restaurant (being a restaurant where the accused Tran’s wife worked), that he was a security officer with Sterling Security, but had left two months earlier, that he knew the accused Tran as he had worked next door to the (East Taste) restaurant, that he did not see Tran very often and had not attended his wedding and that he had not been to Tran’s home.  Detective Mitchell said he also asked about the victim and the accused To said that he did not know him and had not been to his home.  As can be seen, the topics mentioned were fairly bald matters of history, susceptible of being simply answered by the accused.

7. The police officer was asked what information he had about any possible involvement of the accused To in the murder, prior to attending to speak to To.  He said he was “probably aware” that DNA samples, apparently connected with the crime, but not attributable to the accused Tran, had been found at the crime scene.  He also knew that there was telephone contact between the accused Tran and the accused To on the day of the murder.  Indeed, that information was apparently behind the particular tasking or “action” to which Detective Mitchell was responding.  He said that his purpose was to see what knowledge the accused To had of the accused Tran;  “what the connection was between them, where they basically fitted in with each other”.  He said that he did not then consider the accused To to be a suspect in the murder of the victim.

8. I accept Detective Mitchell’s evidence, both as to the conversation and as to his state of mind as regards To.  The terms of the conversation were not challenged and were supported by the contemporaneous notes, which I accept he made.  His state of mind is borne out by the nature of the conversation and the nature of the notes he made of it.  Administration of a caution would have been wholly at odds with the type of enquiry the detective had embarked upon.  It is also supported by subsequent events.  On both 10 and 11 May 2004 Detective Mitchell re-attended at the accused’s home and asked him to voluntarily give a buccal swab for the purposes of DNA analysis.  The accused declined to do so.  Had the accused been “under suspicion” of having committed the offence and had Detective Mitchell suspected on reasonable grounds that the procedure might produce evidence of value to the investigation of the murder, then he could have embarked upon a category 3 (suspects) procedure under sections 14 and 15 of the Criminal Law (Forensic Procedures Act) 1998.  In that circumstance the accused’s co-operation would not have been needed.

9. In fact, that was done later, on 15 May, by which time the investigation had progressed.  On 24 May 2004 To was arrested.

10. Identification of the point at which the caution is required as a prelude to questioning a person is not free from difficulty.  In Van der Meer & Ors v The Queen (1988) 62 ALJR 656 Mason CJ spoke of a caution to a suspect being required once the investigation has reached the accusatory stage. One of the indicators of that stage being reached was police having sufficient evidence in their possession to charge the suspect.

11. In R v Dolan (1992) 58 SASR 501 at 505, King CJ, with whose judgment Mullighan J agreed, gave this guidance:

    It has always been accepted that while the investigation is at the stage at which the police officer is simply gathering information or giving possible suspects the opportunity of clearing themselves, there is no need for the caution.  At that point there can be no question of involuntariness or unfairness arising out of omission of the caution.  It seems to me, however, that where a police officer has reached a stage in his investigations at which he has reasonable grounds for suspecting a particular person, he ought not to interrogate that person without advising him of his right not to answer questions.

12. In R v Murphy (1996) 66 SASR 406, 412 Doyle CJ, with whom Lander and Bleby JJ agreed, observed that the ultimate question was whether it was unfair to use the relevant answers against the accused and therefore the relevant touchstones could not be dogmatically laid down. (See also R v Bueti & Morrissey (1997) 70 SASR 370.)

13. In my view it is clear that on 6 May 2004, the accusatory stage of the investigation had not been reached in respect of To. Consequently I find there was no obligation on Detective Mitchell to caution the accused before speaking to him on that day. For the same reason there was no obligation to follow the procedures laid out in s 74D Summary Offences Act 1953.

14. As to the failure to record the conversation in a more systematic way, I make these observations.  I am prepared to assume for the purposes of this ruling that if evidence of statements made by a person not then under suspicion is unreliable by reason of the police officer not having recorded it adequately, then that is a matter which could enliven the discretion to exclude the evidence on the basis that it is unfair to use the evidence against the accused.  Since the matter has not been fully argued before me, I proceed on that basis.  (The contrary view would be that if there is no impropriety under consideration then the question of what was said by the accused at a time before he was suspected is ultimately one for the jury.)

15. In my view, once suspicion rested upon the accused To, it would have been prudent for Detective Mitchell to have reconsidered the events of 6 May and to have expanded the record he had made of the conversation (as his memory permitted) into, preferably a verbatim account, but, at the least, a more comprehensive account.  At the very latest, that should have been done after the accused To was arrested.  However, when the notes are examined, it is apparent that what are recorded, contemporaneously, are the assertions made by To.  It is noteworthy that there was no cross-examination of Mitchell to suggest that any of the evidence he gave about the conversation was inaccurate or incomplete.  Nor is it suggested by Ms O’Connor that when he spoke to police on 20 May, with the benefit of a caution, that he said anything inconsistent with the earlier statements.

16. In those circumstances, even assuming that the discretion is enlivened, I am not persuaded that there would be any unfairness in using these statements against the accused To.

17. I turn to the conversation of 20 May 2004.  As I mentioned, by this time, the accused To was a suspect.  The conversation was recorded electronically.

18. On 20 May the conversation again occurred at the accused’s home.  It effectively commenced with the following question by Detective Mitchell:

    Q.We just want to clarify a couple of points if you can.  I’ll be asking you some further questions.  You don’t have to answer them.  Anything you do say may be recorded and may be used in evidence.  Do you understand that?  And the same goes for the Detective Sergeant here.  If he asks you anything you don’t have to answer any of the questions.  Do you understand that, do you?

    A.    Yes.

19. Certainly the caution was not administered using the more formal wording which has come to be accepted.  In particular, I do not think there should have been reference to a wish to “clarify a couple of points”.  This expression tended to depreciate the importance of the caution and the questions which might follow. 

20. Neither the wording of the caution to suspects, nor the essential elements of it, have been prescribed by legislation in this state.  In R v Lavery (1979) 20 SASR 459, Wells J referred (at 459) to the Judges’ Rules of 1912 (Kings Bench Division of the High Court of England) as having been “with some reservations” adopted in South Australia. Those Rules provided a form of words to be used after the charging of a prisoner, but did not set out the wording of the caution to be administered where a police officer had reasonable grounds to suspect a person and proposed to interrogate him, rather than immediately arresting. However, the form of words provided was readily adaptable to the earlier stage.

21. The Judges’ Rules were revised in 1964 and are reported as Practice Note (Judges’ Rules) [1964] 1 WLR 152. In the revised edition, the proposed format of the caution was as follows.

    II.  As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence.

    The caution shall be in the following terms:

    “You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.”

22. Although Wells J observed in Lavery that no attempt had been made in South Australia to adopt the revised Rules, the Criminal Law and Penal Methods Reform Committee of South Australia (Second Report) 1974 referred (at pages 87 and 105) to the custom in South Australia to administer a caution similar to that contained in Rule II, once the interviewing officer had a suspicion on reasonable grounds that the person being interviewed had committed, and was to be charged with, an offence.

23. No evidence was called before me as to the current state of the Police Commissioner’s General Orders dealing with this topic.  However, if such Orders provide the wording of the relevant caution, it would be surprising if there were much deviation from Rule II.  I say that because it is that form of caution which is commonly seen in police statements setting out interviews with suspects.

24. The Summary Offences Act 1953, s 79A sets out the rights a person has – and must be informed he has – upon being arrested on suspicion of having committed an offence. The section speaks of such a person being “entitled to refrain from answering any question” and of the requirement to “warn” that what he says may be taken down and used in evidence. Such requirements indicate a measure of formality which reflects the Rule II wording and which I consider should be employed, not only as required by the Act, but at the earlier stage as well.

25. My final observation about Detective Mitchell’s approach is that the suspect should have been told what matter was under investigation:  R v Szach (1980) 23 SASR 504. But having regard to the train of events in this case, he could hardly have been in any doubt about the nature of the investigation.

26. In summary, I consider it would have been appropriate for Detective Mitchell to have commenced his conversation with the accused on 20 May with words such as these:

    As you know, I am Detective Mitchell of the Major Crime Investigation Section.  This is Detective Sergeant Rowe.  We are investigating the murder of Mr Hung on 18 February 2004 at Auldana.  I intend to ask you some questions about that matter.  You are not obliged to answer them unless you wish to do so, but anything you do say will be recorded and may be used in evidence.  Do you understand that?

    Had such a formula been employed, I do not think that the detective could have been criticised. 

27. I do not agree with the submission that the police were obliged to advise the accused that he was a suspect in the inquiry.  (In fact, he had already been told as much by the same officers in the course of the 15 May conversation when he provided a buccal swab.)  Leaving aside any statutory obligation, I know of no authority which requires that a person be told, at any stage, that he is a suspect. 

28. In the result, although I consider that the caution should have been delivered with more formality and that the nature of the inquiry should have been reiterated, I see no reason to believe that using the statements the accused made against him would be in any way unfair.  Since I have found that there was no impropriety associated with the earlier conversation, the further argument, that the later conversation was tainted, falls away.

29. For these reasons I declined to exercise my discretion to exclude the accused’s statements on either occasion.