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16
Court of Criminal Appeal 20 December 2002

REGINA v QUACH

[2002] NSWCCA 519

Also reported as (2002) 137 A Crim R 345
Drugs
CRIMINAL LAW EVIDENCE CRIMINAL LAW DIRECTIONS TO JURY CRIMINAL LAW EVIDENCE

Citation: Regina v Quach [2002] NSWCCA 519
Court: New South Wales Court of Criminal Appeal
Date: 20 December 2002
Judges: Spigelman CJ; Sully J; James J

Background

The appellant was convicted in the District Court of supplying a large commercial quantity of heroin. The prosecution's case was circumstantial and rested heavily on intercepted telephone calls, surveillance evidence, call charge records, and the discovery of nearly $781,000 in cash and a handwritten note bearing a name and a figure closely matching the value of the heroin seized.

The heroin, almost six kilograms, was found in the car of a co-accused who had travelled from Melbourne to Sydney, stopping near the appellant's home in the early hours of 2 May 2000. The Crown argued the intercepted calls in the two weeks before that date established a nexus between the appellant and the co-accused that supported the inference of a pre-arranged supply.

The appellant challenged his conviction on several grounds, including the admissibility of the intercepted telephone calls, the adequacy of the jury directions relating to that evidence, and the admission of a record of interview obtained after the appellant had claimed his right to silence and before a formal caution was administered.

  • Whether the intercepted telephone calls, which revealed prior conduct consistent with heroin supply, were admissible in circumstances where they were not formally tendered as tendency evidence under s 97 of the Evidence Act 1995
  • Whether the concept of "relationship evidence" or "contextual background" provided a separate basis for admissibility, or whether admissibility must be grounded in a specific identified purpose
  • Whether the jury directions given in relation to the intercepted calls were adequate to prevent impermissible tendency reasoning, particularly where those directions were given in terms requested by defence counsel
  • Whether the electronically recorded interview (ERISP) was improperly obtained and should have been excluded, given that the formal caution was not administered until part-way through the interview and answers had been given after the appellant invoked his right to silence

Decision

Admissibility of the intercepted calls. Spigelman CJ, with whom Sully J and James J agreed on the outcome, held that the intercepted telephone calls were properly admitted. The trial judge was correct to find that the calls were relevant to the ultimate issue of whether a supply of heroin occurred on 2 May 2000. The calls established a "nexus" with the events of that day, and their admissibility did not depend on labelling them as either "relationship evidence" or "contextual background." Following the approach endorsed in Gipp v The Queen, admissibility of such evidence requires identification of a specific purpose, and that purpose was present here.

Spigelman CJ observed that the label "relationship evidence," while useful in the context of sexual offences, is not always apt and can obscure the proper analysis. The more precise question is whether the evidence is relevant to an identified issue, assessed specifically rather than globally. Because the defence at trial had objected to the entirety of the tapes without inviting the trial judge to undertake any editing exercise or conduct a separate analysis of each conversation under ss 135 or 137 of the Evidence Act 1995, the more refined submissions advanced on appeal had not been put below and could not succeed at the appellate level.

Jury directions. The Court found no error in the directions given to the jury about the intercepted calls. Critically, the directions had been given in terms specifically requested by the appellant's own counsel. No ground of appeal arising from the adequacy of those directions could be sustained in those circumstances.

Admissibility of the ERISP. The Court upheld the trial judge's decision to admit the record of interview. Although the formal caution had not been given at the outset of the interview, the trial judge found that this was remedied when the caution was administered at question 46, the appellant was offered the opportunity to have the earlier questions re-asked, and he declined. The trial judge was not satisfied that the circumstances gave rise to any likelihood that the truth of the admissions had been adversely affected under s 85 of the Evidence Act 1995, nor that the interview had been unfairly obtained under s 90. The appellant had acknowledged at the conclusion of the interview that his answers were given of his own free will.

Orders Made

  • The appeal against conviction was dismissed.

Key Takeaways

  • Admissibility of evidence of prior discreditable conduct does not depend on invoking a specific label such as "relationship evidence" or "contextual background." Under the principle affirmed in Gipp v The Queen, such evidence must be admissible for a specific identified purpose, and relevance to an ultimate issue at trial can supply that purpose.
  • Where a party at trial objects only to the entirety of a class of evidence without inviting the trial judge to undertake a refined, item-by-item admissibility analysis, a more nuanced argument raised for the first time on appeal is unlikely to succeed.
  • Jury directions given in the precise terms requested by defence counsel are difficult to impugn on appeal as inadequate.
  • The Court of Criminal Appeal confirmed that a failure to administer the formal caution at the outset of a police interview is not necessarily fatal to admissibility. Subsequent administration of the caution, combined with an offer to re-traverse earlier questions, can remedy the defect, particularly where the accused acknowledges the voluntariness of answers given.
  • Under s 85 of the Evidence Act 1995, exclusion of admissions on the basis that their truth may have been adversely affected requires circumstances that actually support that inference. A general procedural irregularity, without more, does not automatically satisfy that threshold.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW)
- Evidence Act 1995 (NSW), ss 85, 90, 97, 98, 135, 137

Cases
- Conway v R (2000) 172 ALR 185
- Gipp v The Queen (1998) 194 CLR 106
- Harriman v The Queen (1989) 167 CLR 590
- KRM v The Queen (2001) 206 CLR 221
- Papakosmos v The Queen (1999) 196 CLR 297
- Pfennig v The Queen (1995) 182 CLR 461
- Plomp v The Queen (1963) 110 CLR 234
- R v AH (1997) 42 NSWLR 702
- R v Burns & Collins (2001) 123 A Crim R 226
- R v Chan [2002] NSWCCA 217
- R v Clarke (1997) A Crim R 414
- R v Frawley (1993) 69 A Crim R 208
- R v Lock (1997) 91 A Crim R 356
- R v Ngo and Le [2002] SASC 373
- R v Nieterink (1999) 76 SASR 56
- R v Norris (2001) 121 A Crim R 227
- R v Plevac (1995) 84 A Crim R 570
- Wilson v R (1970) 123 CLR 334