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 DARWINTan 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)
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.
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.
In summary form the Crown case against the applicant was that he was knowingly concerned in the importation into Australia of a…
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- AGLC
- Tan Seng Kiah v The Queen [2001] NTCCA 1
- Case
- [2001] NTCCA 1
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine two primary legal issues. Firstly, whether the record of interview was admissible, considering potential breaches of statutory rights under the *Crimes Act 1914*. Secondly, the court had to consider whether the denial of the appellant's rights, specifically the right to legal or consular access and the right to an interpreter, created such unfairness as to warrant the exclusion of the confessional material, even if it was not involuntary or unreliable, on public policy grounds.
The court reasoned that the admissibility of the interview depended on whether the detention period complied with the *Crimes Act 1914*. It considered the concept of "down time" in relation to the four-hour limit and whether an application to a magistrate for an extension was necessary. Furthermore, the court examined the interplay between the right to legal or consular access and the right to an interpreter, assessing whether the latter subsumed the former or existed as a separate right. The court applied principles relating to the exercise of discretion to exclude unlawfully obtained evidence and considered public policy implications.
Orders
Orders of the court
Shanvale Pty Ltd v Council of the Shire of Livingstone [1999] QCA 483; 105 LGERA 380
Supreme Court of Queensland - Court of Appeal
24 Nov 1999
2 citations
Bondareff, Usachov & McCabe 109 A Crim R 23
Australian Criminal Reports
1999
3 citations: Page 42, 45
R v Swaffield [1998] HCA 1; 192 CLR 159
High Court of Australia
20 Jan 1998
5 citations: Page 196
R v Tang, Dang and Quach [1998] 3 VR 508
Supreme Court of Victoria
2 Oct 1997
2 citations: Page 517
R v Tan Seng Kiah 7 NTLR 61
Northern Territory Law Reports
1997
1 citation
R v Su, Katsuno, Katsuno, Katsuno, Asami and Honda [1997] 1 VR 1; 129 FLR 120
Supreme Court of Victoria
15 Dec 1995
1 citation
Edwards v The Queen [1993] HCA 63; 178 CLR 193
High Court of Australia
17 Nov 1993
2 citations: Page 201
Pollard v The Queen [1992] HCA 69; 176 CLR 177
High Court of Australia
24 Dec 1992
4 citations: CLR 196, 223; A Crim R 203, 413
Williams v The Queen [1986] HCA 88; 161 CLR 278
High Court of Australia
26 Aug 1987
2 citations
R v Su [1977] 1 VR 1
Victorian Reports
1977
1 citation
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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