Tasmania v Liu - [2021] TASSC 53

[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…

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 Tasmania v Liu

Details

AGLC: Tasmania v Liu [2021] TASSC 53
Case: [2021] TASSC 53
Decision Date: 15 December 2020

CaseChat Overview and Summary

In the case of Tasmania v Liu, the defendant was charged with offences related to drug importation and trafficking. The central issue before the court was whether evidence obtained from a recorded phone conversation between the defendant and a police officer should be admitted. The defendant, who had limited proficiency in English, had made admissions during the conversation which he now sought to have excluded on the basis that it was unfair to admit such evidence. The matter was heard in the Supreme Court of Tasmania.

The court was required to determine whether the caution given to the defendant, who was of Chinese origin and had imperfect English, was sufficient to ensure that he could communicate in English with reasonable fluency. Additionally, the court needed to assess whether it was unfair to admit the evidence of the admissions made during the phone conversation. The primary consideration was whether the defendant understood the nature of the conversation and the implications of his responses.

The court found that the caution provided to the defendant was adequate given his limited English proficiency. It was held that the defendant had a reasonable ability to communicate in English and was thus capable of understanding the conversation. The court further held that it was not unfair to admit the evidence of the admissions made during the conversation, as the defendant had not demonstrated any prejudice arising from the language barrier. Consequently, the evidence was deemed admissible.

The court ordered that the evidence of the recorded phone conversation be admitted in the trial. The defendant's application to exclude the evidence was dismissed.

Orders