Tasmania v Liu
[2021] TASSC 53
•15 December 2020
[2021] TASSC 53
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmania v Liu [2021] TASSC 53
PARTIES: STATE OF TASMANIA
v
LIU, Ruhua (also known as Katy Liu)
MURPHY, Shayne Michael
FILE NO: 318/2017
DELIVERED ON: 15 December 2020
DELIVERED AT: Launceston
HEARING DATES: 1-3 December 2020
JUDGMENT OF: Blow CJ
CATCHWORDS:
Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Evidence unfair to admit or improperly obtained – Particular cases – Recording of phone conversation with police officer – Caution given to person of Chinese origin with imperfect English – Whether person able to communicate in English with reasonable fluency – Whether unfair to admit evidence of admissions made during conversation.
Evidence Act 2001 (Tas), ss 90, 138(1)(a), 139.
R v Jeffries (1947) 47 SR(NSW) 284; R v Lee (1950) 82 CLR 133; Director of Public Prosecutions v Natale [2018] VSC 339, referred to.
Aust Dig Criminal Law [2684]
Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Electronic recording – Recording of phone conversation when police officer questioned accused – No audio-visual recording made – Admissions not later confirmed by accused – Reasonable explanation as to why audio-visual record could not be made.
Evidence Act 2001 (Tas), s 85A(1).
Aust Dig Criminal Law [2753]
REPRESENTATION:
Counsel:
State: J Ransom
Accused Liu: K Baumeler
Accused Murphy: P O'Halloran
Solicitors:
State: Director of Public Prosecutions
Judgment Number: [2021] TASSC 53
Number of paragraphs: 37
Serial No 53/2021
File No 318/2017
STATE OF TASMANIA v RUHUA LIU (also known as KATY LIU)
and SHAYNE MICHAEL MURPHY
REASONS FOR DETERMINATION BLOW CJ
15 December 2020
These are my reasons for a ruling that I gave on 3 December 2020 to the effect that evidence objected to by the accused Ruhua Liu was to be admitted.
Ms Liu and her husband Shayne Michael Murphy were jointly charged on one count of trafficking in fish contrary to s 264A(1) of the Living Marine Resources Management Act 1995. They both pleaded not guilty to that charge on 1 December 2020. Immediately after the empanelment of the jury, I dealt with an objection by counsel for Ms Liu to the admission of the evidence of two interviews conducted with her by police officers.
The Crown case against Ms Liu was that on 14 December 2015 she unlawfully had possession of 186 abalone, and that she delivered them in sealed boxes to a transport company in Launceston for delivery to a company in Melbourne for the purposes of sale.
In December 2015 r 16(1)(b) of the Fisheries (Abalone) Rules 2009 prohibited any person from having possession of more than five abalone, subject to certain exceptions. The Crown contended that none of those exceptions applied, that Ms Liu was therefore guilty of an offence against r 16(1)(b), and that she thus possessed the abalone unlawfully.
Further, in December 2015, r 16(4) of the Fisheries Rules 2009, subject to certain exceptions, provided that a person who was not authorised to take a kind or species of fish for sale must not have possession of that kind or species of fish for the purpose of sale or resale unless the person had a receipt of a type referred to in r 16(1). The Crown contended that Ms Liu was not authorised to take abalone, that she had possession of the abalone for the purpose of sale or resale, that she did not hold a r 16(1) receipt, that she was guilty of an offence contrary to r 16(4), and that her possession of the abalone was thus unlawful on a second basis.
Section 264A of the Living Marine Resources Management Act, under which the accused were charged, reads as follows:
"(1) A person must not traffic in fish without lawful excuse.
(2) For the purposes of subsection (1), a person is taken to traffic in fish without lawful excuse if –
(a) the fish have been taken unlawfully or possessed unlawfully; and
(b) on one or more occasions, the person –
(i)possesses the fish; or
(ii)conceals the fish; or
(iii)processes the fish; or
(iv)sells or otherwise disposes of the fish; or
(v)receives or delivers the fish from or to another person; or
(vi)transports the fish from one place to another; or
(vii)otherwise deals with the fish; or
(viii)carries out any combination of the activities referred to in this paragraph.
(3) For the purposes of subsection (2) –
(a) it does not matter whether the fish referred to in that subsection are all of one species or a mixture of different species; and
(b) a person is taken to have carried out an activity if the person –
(i)carries out, or participates in the carrying out of, the activity; or
(ii)directs, controls or supervises the carrying out of the activity; or
(iii)provides finance, facilities or other resources to enable the activity to be carried out or to facilitate it; or
(iv)is knowingly concerned in the carrying out of the activity."
Section 6A of that Act contains provisions relating to the meaning of "possession". That section reads as follows:
"(1) A person is taken to be in possession of something for the purposes of this Act if the person has, either alone or jointly with others, actual possession or actual custody of the thing.
(2) A person is also taken to be in possession of something for the purposes of this Act if –
(a) the thing is at or in a place that the person, either alone or jointly with others, occupies; or
(b) the person, either alone or jointly with others, enjoys the thing at or in any place; or
(c) the person has, whether it is exercised for the person's own benefit or for the benefit of others, any control over the thing.
(3) Subsection (2) applies whether or not any other person has actual possession or actual custody of the thing.
(4) However, subsection (2)(a) does not apply if the person proves that the person had no knowledge of the thing."
The indictment contained particulars of the charge against the two accused that read as follows:
"RUHUA LIU (also known as KATY LIU) and SHAYNE MICHAEL MURPHY at Launceston and/or other places in Tasmania, on or about the 14th day of December 2015, without lawful excuse, trafficked in abalone (genus Haliotis), possessed unlawfully by:
(a) possessing the said fish;
(b) processing the said fish;
(c) selling or otherwise disposing of the said fish;
(d) receiving or delivering the said fish from or to another person;
(e) transporting the said fish from one place to another; and
(f) carrying out combinations of the abovementioned activities."
Two police officers gave evidence on the voir dire in relation to the objection. The first of them, Const O'Neill, gave uncontroversial evidence to the following effect. On 14 December 2015 he received a phone call from the transport company. He went to its premises. He was shown three boxes. He was given a copy of a consignment note relating to the boxes. It showed that the boxes contained fish, that they weighed 78Kg, that the sender was Katy Liu, her mobile phone number, and the name and address of the receiver – a seafood business in Melbourne. He and another officer opened the boxes, found abalone, photographed them, seized them, and arranged for the transport company to hold them and keep them refrigerated. The receiver's address on the consignment note was the address of a fish market in Melbourne. Const O'Neill became concerned that the intended recipient of the abalone might take steps to change or destroy evidence if they did not arrive at the fish market by around 12 noon on 15 December.
Const O'Neill and another officer obtained a business address for Ms Liu. They went to that address on the morning of 15 December but were told that Ms Liu was not at work that day and would not be back for a few days. He decided to phone her on her mobile phone. He phoned her at 11.38am. He recorded the conversation using a second mobile phone. In the course of that conversation, Ms Liu said that she was at Miena, travelling with a friend from China. The Crown wished to tender the recording of that conversation on the trial but counsel for Ms Liu objected to its admission as evidence. Some weeks later, on 11 January 2016, Const O'Neill and another officer, Sgt Bidgood, conducted an audio-visually recorded interview with Ms Liu at the Launceston Police Station. During that interview they played the recording of the 15 December telephone conversation to Ms Liu. The Crown wished to tender an edited version of the recording of that second interview on the trial, but that was also objected to by counsel for Ms Liu.
In the telephone conversation on 15 December, Ms Liu acknowledged that she had gone to the transport company to send some fish to Victoria, told Const O'Neill that the fish were abalone, told him that she did not know the person who gave her the fish to send to Melbourne, and told him the name of the company to which the fish was consigned.
It is common ground that Ms Liu's answers to the constable's questions contained admissions for the purposes of the Evidence Act 2001. The Crown wished to rely on those admissions as evidence of guilty knowledge on her part.
At the start of the phone conversation on 15 December Const O'Neill told Ms Liu that he was from the police, that they had done a check of the transport company, and that he needed to speak to her in relation to the fish she sent to Victoria. The conversation continued as follows:
"O'NEILL:I'll just caution you, I, basically, the fish, we, we need to know what the fish was. So I just need to caution you
LIU:Yeah
O'NEILL:and let you know that you don't have to say anything, but anything you do say I will record and it may be given in evidence. Do you understand that?
LIU:Yeah, I understand.
O'NEILL:What, what kind of fish did you sent to Melbourne?
LIU:Is abalone."
Ms Baumeler argued that the evidence of the phone conversation and the January 2016 interview with Ms Liu should be excluded on three bases:
· That the evidence of the telephone conversation was inadmissible because no audio-visual record of the questioning of her client was made in accordance with s 85A(1)(a) of the Evidence Act.
· That the evidence of the telephone conversation was improperly obtained, and should be excluded pursuant to s 138(1)(a) of the Evidence Act, on the basis that Ms Liu was not adequately cautioned and was not provided with an interpreter.
· That, pursuant to s 90 of the Evidence Act, I should refuse to admit the evidence because it was evidence of admissions and, having regard to the circumstances in which the admissions were made, it would have been unfair to Ms Liu to use it as evidence.
No audio-visual recording
Section 85A(1) of the Evidence Act provides as follows:
"(1) Evidence of an admission in a proceeding for a serious offence made by a defendant during official questioning is not admissible unless –
(a)there is available to the court an audio visual record of an interview with the defendant in the course of which the admission was made; or
(b)if the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) could not be made, there is available to the court an audio visual record of an interview with the defendant about the making and terms of the admission or the substance of the admission in the course of which the defendant states that he or she made an admission in those terms or confirms the substance of the admission; or
(c)the prosecution proves on the balance of probabilities that there was a reasonable explanation as to why an audio visual record referred to in paragraph (a) or (b) could not be made; or
(d)the court is satisfied that there are exceptional circumstances which, in the interests of justice, justify the admission of the evidence."
In the telephone conversation Ms Liu made an admission that the fish in the boxes were abalone. It was common ground that the trial was a proceeding for a serious offence, and that the phone conversation constituted official questioning. Obviously s 85A(1)(a) does not apply because, although the constable made an audio recording of the conversation, he did not make not an audio-visual recording of it.
The Crown prosecutor, Mr Ransom, conceded that s 85A(1)(b) did not apply. Although an audio-visual recording of the interview with Ms Liu on 11 January 2016 was available, and she was asked during that interview about the contents of the recording of the phone conversation, Mr Ransom conceded that, in the course of the January interview, Ms Liu did not state that she made an admission in the terms alleged or confirm the substance of the admission. The recording of the phone conversation was played to her, and she was asked about the phone call, but her responses suggested that there was some uncertainty as to what had been said over the phone.
However Mr Ransom relied on s 85A(1)(c). He argued to the effect that the prosecution had proved on the balance of probabilities that there was a reasonable explanation as to why no audio-visual recording as referred to in s 85A(1)(a) or (b) could be made. As to s 85A(1)(a), he argued that it was reasonable for Const O'Neill to phone Ms Liu and question her when he did, and that no audio-visual record could be made because she was in Miena and he was in Launceston. I take judicial notice of the fact that it takes more than an hour to drive from Launceston to Miena. As to s 85A(1)(b), Mr Ransom argued that no audio-visual recording within the scope of that provision was available because, although the recording of the phone conversation was played to Ms Liu during an audio-visually recorded interview, she stopped short of confirming the terms or substance of the admission made during the phone call.
As to s 85A(1)(a), Ms Baumeler argued that it was not reasonable for Const O'Neill to question Ms Liu as he did on the phone on the morning of 15 December 2015. She argued that he should have either made contact with her the previous day and invited her to take part in a formal audio-visually recorded interview at the Launceston Police Station, or else waited until she returned to Launceston and conducted a formal audio-visually recorded interview with her there then. There was evidence that he was told on the morning of 15 December that she would be away for a few days.
I reject that submission. Before Const O'Neill phoned Ms Liu, he had not formed a view as to whether she was an innocent participant in a plan for the unlawful sending of abalone to Victoria or whether she knew that the sending of the abalone was illegal. I accept his evidence that he phoned her to ask about three things – whether she knew what was in the boxes, who got her to send the fish to Victoria, and who the intended recipient was. He expected the intended recipient to suspect that the authorities knew of the illegal shipment at about 12 noon on the day of the phone call when the shipment did not reach the fish market. He made a strategic decision to seek information from Ms Liu before 12 noon in the hope of advancing the investigation before it was too late. In my view it was reasonable for him to ring Ms Liu when he did, for the reasons that he did.
It may well be that he could have made contact with her and arranged a formal interview the previous day, before she went to Miena. However he was not to know that she would be out of town on 15 December. Further, I accept his evidence to the effect that he was hoping to receive further information from the Victorian authorities before speaking to Ms Liu. I accept that those matters made it reasonable for him not to conduct an audio-visually recorded interview on 14 or 15 December 2015.
For these reasons, I accepted Mr Ransom's submission to the effect that the evidence was admissible pursuant to s 85A(1)(c).
Evidence improperly obtained?
Counsel for Ms Liu submitted that the evidence of what she said in the telephone conversation was improperly obtained, and that the evidence objected to should therefore be excluded pursuant to s 138(1)(a) of the Evidence Act. She contended that the evidence was improperly obtained because Const O'Neill did not question Ms Liu about her understanding of his caution, and did not arrange for her to be questioned through an interpreter. The argument as to impropriety was based on s 139 of that Act, which contains the following relevant provisions:
"(1) For the purpose of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to have been obtained improperly if –
(a)the person was under arrest for an offence at the time; and
(b)the questioning was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and
(c)before starting the questioning the investigating official did not 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.
(2) For the purpose of section 138(1)(a), evidence of a statement made or an act done by a person during questioning is taken to be obtained improperly if –
(a)the questioning was conducted by an investigating official who did not have the power to arrest the person; and
(b)the statement was made, or the act was done, after the investigating official formed a belief that there was sufficient evidence to establish that the person committed an offence; and
(c)the investigating official did not, before the statement was made or the act was done, 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.
(3) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately."
Section 139(1) did not apply because Ms Liu was not "under arrest", in any sense of that term, at the time of the phone conversation. Under certain circumstances, s 139(5) requires a person who is in the company of an investigating official to be treated as a person under arrest, but Ms Liu was not in the company of Const O'Neill or any other investigating official when questioned. She was at Miena. It follows that there was no basis for the evidence in question to be excluded on the basis of s 139(1).
Section 139(2) did not apply because Const O'Neill was not "an investigating official who did not have the power to arrest" Ms Liu. A limited power of arrest is conferred on fisheries officers by s 199 of the Living Marine Resources Management Act. By virtue of a definition in s 3 of that Act, a police officer is a fisheries officer. Section 199 provides as follows:
"A fisheries officer may arrest a person without warrant if –
(a)the person does not give the information or details required under section 196; or
(b)the fisheries officer reasonably believes that the person has given a false name or address; or
(c)the fisheries officer reasonably believes that the person has committed an offence under this Act and that –
(i) the offence is likely to continue or recur if the person is not arrested; or
(ii) any other procedure for dealing with the offence would not be effective; or
(d)the fisheries officer reasonably believes that the person has contravened a control order."
Since neither s 139(1) nor s 139(2) applied, s 139(3) did not apply either. That is to say, even if English was a language in which Ms Liu was not able to communicate with reasonable fluency, s 139(3) did not operate so as to deem it improper for Const O'Neill to have cautioned her in English.
In any event I am not satisfied that Ms Liu was unable to communicate in English with reasonable fluency. The accused bears the burden of establishing on the balance of probabilities any facts on which an allegation of impropriety is based: Evidence Act, s 142. Ms Liu's first language is Chinese. She was assisted at the trial by a Mandarin interpreter. Her English is far from perfect. However she has been in Australia since 2007. She has an Australian husband. Police officers who conversed with her during searches on 11 January 2016 had no difficulty communicating with her. In December 2015 she was working in a business in Launceston with English speaking people. She gave evidence on the voir dire that she did not understand Const O'Neill's caution. She did not dispute that he had asked her whether she understood the caution, and that she replied, "Yeah, I understand." However she said that she gave that reply out of politeness. There was nothing about her demeanour to indicate that that assertion might be unreliable. However, having regard to all the evidence as to her ability to communicate in English, I am not affirmatively satisfied on the balance of probabilities that she was unable to understand the caution because of an inability to communicate in English with reasonable fluency.
Even if the evidence of Ms Liu's admissions during the telephone conversation was improperly obtained, I would exercise my discretion to admit that evidence. In the words of s 138(1), I consider that "the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained". In reaching that conclusion, I have taken into account the following matters in accordance with s 138(3):
· The trafficking charge relates to 37.4Kg of "black market" abalone, worth tens of thousands of dollars. The person or persons responsible for attempting to send that abalone to Melbourne committed a serious crime.
· Ms Liu's admissions that she knew the boxes to contain abalone, and that she knew the name of the company to which it was consigned in Melbourne, are highly probative of her involvement in the trafficking of that commercial quantity of abalone.
· Without those admissions, the Crown might have difficulty proving knowledge of the contents of the boxes on the part of Ms Liu. The Crown might also have difficulty rebutting a defence of honest and reasonable mistaken belief, assuming (without deciding) that such a defence can be available to a charge of trafficking in fish.
· Any impropriety on the part of Const O'Neill was far from grave. There is no suggestion that he acted dishonestly, recklessly or in bad faith. It would have been apparent to him from the start of the telephone conversation that Ms Liu was speaking with an Asian accent, and that her English was by no means perfect, but the worst that can be said is that he failed to take time to make sure that she understood his caution.
· When Const O'Neill phoned Ms Liu, he was expecting that the intended recipient of the abalone in Melbourne would very soon realise that something had gone wrong. It was reasonable in the circumstances for him to phone Ms Liu, given that she was out of town, and possibly had no knowledge that anything illegal was going on. It was prudent for him to caution her in case she was involved in illegal activity relating to the abalone. That is what he did. If there was any impropriety, it was in not taking steps to ensure that she understood the caution. The situation may have been somewhat stressful for him. He was neither a detective nor a senior officer, but a uniformed constable.
· Ms Liu's right to silence is not a right recognised by the International Covenant on Civil and Political Rights.
· No other proceeding has been or is likely to be taken in relation to any impropriety on the part of Const O'Neill.
· It is possible that, whatever her level of fluency in English, Ms Liu did not realise that she was under no obligation of any sort to answer any of Const O'Neill's questions. If it had been made perfectly clear to her that she an absolute right to silence, it is not possible to say whether she might have made any admissions at the time of the phone call. Without any such admissions, the Crown would have only circumstantial evidence as to her knowledge of the contents of the boxes that she had delivered to the transport company.
On balance, because of the seriousness of the charge, the importance of the evidence, and the fact that Const O'Neill did not act recklessly or in bad faith, I consider that it would be appropriate to admit the evidence, if it had been improperly obtained.
The s 90 unfairness discretion
Section 90 of the Evidence Act provides as follows:
"In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if –
(a)the evidence is adduced by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence."
Ms Baumeler argued that, having regard to the circumstances in which the admissions were made during the telephone conversation, it would be unfair to Ms Liu for evidence relating to that conversation to be used at her trial. She made submissions to the following effect:
· She argued that Ms Liu was not sufficiently fluent in English for it to be fair for her to be questioned without the assistance of a Chinese/English interpreter.
· She argued that Ms Liu was not fluent in English and did not understand that she had a right to silence.
· She argued that Const O'Neill made comments that tended to suggest that she was obliged to answer his questions. Before cautioning her the constable said, "I just need to speak to you in relation to the fish" and, "... we need to know what the fish was".
· She argued that the constable should have questioned Ms Liu as to her understanding of his caution, and made sure that she fully understood it, before any questioning proceeded.
To some extent, these submissions must be rejected because of my finding that I was not satisfied on the balance of probabilities that Ms Liu was not sufficiently fluent in English to understand the caution. However Ms Baumeler's submissions are certainly not without merit. Ms Liu came from the People's Republic of China. I accept that citizens of that country may be reluctant to refuse to answer the questions of police officers. I accept that Const O'Neill's use of the word "need" might have strengthened any impression that Ms Liu was obliged to answer questions. She might not have understood that any right to silence was not just theoretical but absolute. She might, despite a capacity to understand English, not have understood the significance of what Const O'Neill was saying, particularly having regard to the circumstances of the phone call and the speed at which he spoke.
The s 90 unfairness discretion is the statutory equivalent of the common law unfairness discretion that was discussed in cases such as R v Lee (1950) 82 CLR 133 and R v Swaffield (1998) 192 CLR 159. In Lee at 154, Latham CJ, McTiernan, Webb, Fullagar and Kitto JJ approved a statement of principle made by Street J (as he then was) in R v Jeffries (1947) 47 SR(NSW) 284 at 312, as follows:
"It is a question of degree in each case, and it is for the presiding Judge to determine, in the light of all the circumstances, whether the statements or admissions of the accused have been extracted from him under conditions which render it unjust to allow his own words to be given in evidence against him."
Ms Baumeler relied heavily on a ruling by Bell J in Director of Public Prosecutions v Natale [2018] VSC 339. In that case his Honour observed at [35]:
"The focus of the exercise of the unfairness discretion is ... upon the unfairness of the use of the admission in the trial, not the unfairness of the means by which it was obtained. At issue is the unfairness of the end, not the means."
However, even though the unfairness of the end is the focus, s 90(b) requires a trial judge to have regard to "the circumstances in which the admission was made".
There is no suggestion that anything said by Ms Liu in the phone conversation was unreliable because of a language problem. There is no suggestion that Const O'Neill acted in bad faith or recklessly. In my view it was reasonable for him to phone her to make limited enquiries on the day that she was at Miena. I am not persuaded that she was incapable of understanding the caution because of a lack of fluency in English. According to her evidence, she said that she understood the caution when in fact she did not. The fact that she said she understood the caution is one of the circumstances that s 90(b) required me to take into account. Having regard to all the circumstances in which admissions were made during the phone conversation, particularly the circumstances I have mentioned, I concluded that it would not be unfair to Ms Liu to use the evidence of those admissions at her trial.
The January 2016 interview
As I have said, the Crown wished to tender an edited version of the recording of the interview of 11 January 2016. The Crown prosecutor explained that defence counsel wished part of that interview to be admitted if the evidence of the telephone conversation was admitted. Because the evidence of the telephone conversation was objected to, the evidence of the January 2016 interview was also objected to. However the parts of that interview that the Crown intended the jury to receive comprised only the introductory material (including a caution), the playing of the recording of the phone conversation, questions and answers as to the accuracy of that recording, and questions and answers as to whether Ms Liu had any complaints about the police. There was nothing incriminating in the part of the January 2016 interview that the Crown proposed to tender on the trial. Since I rejected the arguments of defence counsel as to the telephone conversation, it followed that there was no basis for excluding the evidence as to the relevant parts of the January 2016 interview.
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