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District Court 24 February 2010

R v Tan Phuong LE (No 1)

[2010] NSWDC 20

Drugs
CRIMINAL LAW JUDGMENT ADMISSIBILITY OF INTERVIEW

Citation: R v Tan Phuong LE (No 1) [2010] NSWDC 20
Court: District Court of New South Wales
Date: 24 February 2010
Judge(s): Berman SC DCJ

Background

The accused was charged with offences involving the possession and importation of a commercial quantity of methylamphetamine. During the investigation, police conducted a recorded interview with the accused, who had limited English proficiency and required the assistance of a Vietnamese interpreter throughout the questioning.

The Crown sought to tender the contents of that interview as evidence at trial. Defence counsel objected to its admission on grounds relating to how police administered the formal caution required before questioning begins.

  • Whether police complied with the cautioning requirement under section 139(1)(c) of the Evidence Act 1995 (NSW), which requires that a person be told they do not have to say or do anything, but that anything they do say or do may be used in evidence
  • Whether the caution was adequately translated into a language in which the accused could communicate with reasonable fluency, as required by section 139(3) of the Evidence Act 1995
  • Whether police acted improperly by proceeding with the interview without ensuring the accused actually understood the caution given to him

Decision

Berman SC DCJ rejected each ground of the objection and admitted the interview. His Honour was satisfied that police had complied with both the specific requirements of section 139(1)(c) and the translation requirement in section 139(3).

On the question of translation, the court noted that the interview was conducted with a Vietnamese interpreter and that police also provided the accused with a written document containing the caution in Vietnamese. The accused read that document and signed it before questioning continued. His Honour accepted, without objection from defence counsel, that the document was a Vietnamese translation of the oral caution already given in English.

The court rejected the argument that the caution was defective because the officer said the accused's answers "may be used in evidence" rather than "used in evidence against him." His Honour considered that submission fanciful in context: the officer had just told the accused he was being questioned about alleged importation and possession of commercial quantities of methylamphetamine, leaving no reasonable doubt about the potential adverse use of any answers.

The court also noted several additional indicators that the accused understood the caution. When asked to explain it in his own words, the accused stated he had "the right to refuse to answer." Police reminded him of his right to silence at two further points during questioning. Notably, police also arranged for the accused to speak with a solicitor before the interview proceeded. His Honour concluded that the police had gone to considerable lengths to ensure the accused understood his rights, and the accused's own conduct and words during the interview confirmed that understanding.

Orders Made

  • The interview is admitted into evidence.

Key Takeaways

  • The District Court confirmed that compliance with section 139(1)(c) of the Evidence Act 1995 does not require the precise formula that a person has a "right" to refuse to answer; telling a person they "do not have to" say or do anything satisfies the provision.
  • Under section 139(3), providing a written translation of the caution in the accused's language, in addition to an oral caution delivered through an interpreter, constitutes adequate compliance with the requirement to caution in a language the person can communicate in with reasonable fluency.
  • A caution that refers to statements being used "in evidence," without specifying "against" the accused, will not be defective where the surrounding context makes the adversarial purpose of any admissions self-evident.
  • The absence of any evidence from the accused that he did not understand the caution was noted, although the court did not treat this as determinative of the outcome.
  • Taken together, the interpreter, the written Vietnamese caution, the accused's own articulation of his rights, repeated reminders during questioning, and access to a solicitor all supported the finding that the accused understood his right to silence before and during the interview.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 139(1)(c), 139(3)

Cases cited: None cited in the judgment.