Tan Seng Kiah v The Queen

[2001] NTCCA 1

Tan Seng Kiah v The Queen [2001] NTCCA 1

PARTIES:TAN SENG KIAH

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL

OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA19 of 1997 (9512894)

DELIVERED:  8 March 2001

HEARING DATES:  20 and 21 November 2000

JUDGMENT OF:  MARTIN CJ, ANGEL AND RILEY JJ

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION AND SENTENCE.

Record of interview – whether admissible or in breach of Part 1C of the Crimes Act 1914 (Cth) – where no application to magistrate to extend time for the investigation period – whether accused was unlawfully detained beyond four hours or whether the period of detainment was “down time”.

Denial of rights – unfairness arising from denial of rights created by legislation – exercise of the discretion to exclude confessional material unlawfully obtained – whether involuntary or unreliable – public policy consideration – whether the right to seek access to a legal practitioner or a consular official exists separately from, or is subsumed by, the requirement for an interpreter.

Williams v R (1988) 161 CLR 278, referred to.
Bondareff, Usachov & McCabe (1999) 109 A Crim R 23, applied.
Pollard v The Queen (1992) 176 CLR 177, applied.
R v Su (1977) 1 VR 1, applied.
R v Swaffield (1997) 192 CLR 159, considered.
R v Pavic (1997) 192 CLR 159, considered.
Edwards v The Queen (1993) 178 CLR 193, referred to.
R v Tang, Dang & Quach (1998) 3 VR 508, referred to.

R v Crooks (1999) QCA 483, referred to.

Crimes Act 1914 (Cth), Part 1C, s 23C, s 23D, s 23G, s 23N and s 23P.

REPRESENTATION:

Counsel:

Applicant:P. Boulten

Respondent:  G.J.Bellew

Solicitors:

Applicant:Dalrymple & Associates

Respondent:  Commonwealth Director of Public Prosecutions

Judgment category classification:    A

Judgment ID Number:  ril0103

Number of pages:  32

ril0103

IN THE COURT OF CRIMINAL
APPEAL OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Tan Seng Kiah v The Queen [2001] NTCCA 1
No. CA 19 of 1997 (9512894)

BETWEEN:

TAN SENG KIAH

Applicant

AND:

THE QUEEN

Respondent

CORAM:    MARTIN CJ, ANGEL AND RILEY JJ

REASONS FOR JUDGMENT

(Delivered 8 March 2001)

1. On 5 September 1997 the applicant was convicted of being knowingly concerned in the importation into Australia of a commercial quantity of heroin between 20 May 1995 and 1 July 1995.  On 21 October 1997 he was sentenced to 24 years imprisonment with a nonparole period of 16 years.

1. The applicant sought leave to appeal against conviction and sentence.  The application was made out of time and this Court ordered an extension of time on 20 November 2000.  On 21 December 2000 it was ordered that the appeal be allowed, the conviction be quashed and that a new trial be had.   These are the reasons for those orders.

2. In summary form the Crown case against the applicant was that he was knowingly concerned in the importation into Australia of a…