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Court of Criminal Appeal 20 April 2001

REGINA v. DENG

[2001] NSWCCA 153

Drugs
CRIMINAL LAW APPEAL ADMISSIBILITY OF EVIDENCE ORAL ADMISSIONS CAUTION NO ERROR

Citation: Regina v Deng [2001] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 20 April 2001
Judge(s): Handley JA; Ipp AJA; Greg James J

Background

The appellant was convicted in the District Court of two counts of supplying heroin in a commercial quantity, contrary to the Drugs Misuse and Trafficking Act 1985. The first count related to actual supply; the second to deemed supply arising from possession of heroin found in a motor vehicle. Each offence carried a maximum penalty of 20 years imprisonment.

At trial, the Crown relied in part on conversations the appellant had with police at the scene of his arrest. The trial judge (Latham DCJ) held a voir dire to determine whether those conversations were admissible. The appellant did not give evidence on the voir dire, though he did at trial. Evidence about his English language ability came from the arresting officer and a former police officer who had known him for around six months in 1996.

The trial judge admitted the conversations and the appellant was convicted. He appealed to the Court of Criminal Appeal on two grounds: first, that the police caution was not administered in a language in which he was reasonably fluent; and second, that evidence of a later alleged similar transaction was wrongly excluded.

  • Whether the police caution was administered in compliance with section 139(3) of the Evidence Act 1995, which requires a caution to be given in a language in which the arrested person can communicate with reasonable fluency
  • Whether, if section 139(3) was not satisfied, the evidence of the conversations should have been excluded under section 138 of the Evidence Act 1995
  • Whether evidence of a later incident involving the appellant was wrongly excluded as irrelevant under section 55 of the Evidence Act 1995

Decision

On the caution ground, the Court of Criminal Appeal found no error in the trial judge's approach. The trial judge had reviewed video footage of the arrest and found that the appellant engaged in a reasonably extensive conversation in English before and after the caution was given, with responses that were rational and responsive. She concluded the caution was administered in language the appellant understood.

The Court clarified the purpose behind section 139(3). Greg James J held the section is purposive: it does not operate on a person's general language ability but on whether the concepts underlying the caution were sufficiently communicated to be understood. The caution exists to convey to an arrested person that they may remain silent and that anything they say may be used in evidence. Ipp AJA expressed the test concisely: "reasonable fluency" means fluency sufficient to enable the person to understand the caution.

On the basis of the video and the factual findings made at the voir dire, the Court found an overwhelming case that the requisite understanding had been communicated. The Court also noted that even if the trial judge had applied a stricter test, her factual findings would still have supported admission of the evidence.

On the relevance ground, the Court upheld the exclusion of evidence relating to a later incident. The appellant had admitted ownership of the bag in which the heroin was found but denied knowledge of the heroin. The proposed evidence of a later incident shed no light on how the heroin came to be in that bag, and could not rationally affect the probability of the appellant's possession. Greg James J found no logical connection between the later incident and the issues as they were actually prosecuted at trial. Handley JA noted additional grounds would also have supported the trial judge's ruling on that point.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Under section 139(3) of the Evidence Act 1995, the test for whether a caution was administered in a language of "reasonable fluency" is whether the concepts underlying the caution were sufficiently communicated to be understood by the arrested person, not whether the person possesses general fluency in that language.
  • A court may consider the totality of a conversation between police and an arrested person, including exchanges before and after the caution was given, when assessing whether the person understood the caution.
  • Evidence of a subsequent similar transaction will not be relevant under section 55 of the Evidence Act 1995 if it cannot rationally affect, directly or indirectly, the probability of a fact in issue at trial. Speculation unconnected from the issues as actually prosecuted is insufficient to establish relevance.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where a trial judge's factual findings would support admission of evidence under any plausible formulation of the applicable test, no appellable error arises from the precise test applied.
  • No error was established in the trial judge's exercise of the discretion under section 138, given her finding that the caution was adequately administered and her further conclusion that she would have admitted the evidence in any event.

Legislation and Cases Referenced

Legislation:
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Evidence Act 1995 (NSW), ss 55, 138, 139(3)

Cases cited: None cited in the judgment.