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District Court 24 September 2019

R v HS

[2019] NSWDC 575

Sexual offencesAssault & violence
EVIDENCE: ADMISSIBILITY OF ERISP CAUTION VULNERABLE PERSON PERSON OF A NON ENGLISH SPEAKING BACKGROUND RIGHT TO INTERPRETER

Citation: R v HS [2019] NSWDC 575
Court: District Court of New South Wales
Date: 24 September 2019
Judge(s): Montgomery DCJ

Background

The accused faced charges arising from alleged events on 19 January 2018, including allegations of indecent assault and deprivation of liberty. Police arrested the accused that night, conducted an electronically recorded interview (ERISP) in the early hours of 20 January 2018, and subsequently carried out a forensic procedure to obtain a DNA sample by buccal swab.

The accused challenged the admissibility of three categories of evidence before the jury was empanelled: the ERISP, the video recording of the forensic procedure, and the DNA evidence obtained during that procedure. The defence contended that police had failed to comply with the relevant caution and rights provisions, and that the accused had not validly consented to the forensic procedure.

The voir dire proceeded on the basis that the complainant would give evidence consistent with her statement to police, and that the accused's defence would be denial of non-consent and denial of detention.

Legal Issues

  • Whether the accused was effectively cautioned in compliance with sections 138 and 139(3) of the Evidence Act 1995 (NSW), such that the ERISP was admissible
  • Whether the accused was a "person of non-English speaking background" and therefore a "vulnerable person" under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) and its regulations
  • Whether police were obliged to arrange an interpreter for the ERISP and the forensic procedure
  • Whether police complied with the positive obligation to ensure the accused understood his cautions and rights as a vulnerable person
  • Whether the accused consented to the forensic DNA procedure under section 18(1)(b) of the Crimes (Forensic Procedures) Act 2000 (NSW), and whether the order to proceed without consent was validly made under section 20 of that Act

Decision

Issue 1: Caution on Arrest

Montgomery DCJ accepted the uncontested evidence of Detective Senior Constable Trethewy that the caution on arrest was carefully and methodically administered and properly understood by the accused (at [11]-[12]). The court observed that the officer's conduct during the ERISP itself corroborated this account.

Issue 2: Vulnerable Person Status and the Custody Management Process

The court found that the accused was, on the balance of probabilities, a person of non-English speaking background within the LEPRA definition, as he was born outside Australia and his first language was not English (at [36]-[37]). This made him a "vulnerable person" under Regulation 28 of the Law Enforcement (Powers and Responsibilities) Regulation 2016 (at [40]). However, the court also found that the accused displayed more than a working command of English, demonstrating competent comprehension and expression during the ERISP and the forensic procedure (at [38]). Heavily accented speech, the court observed, does not equate to a lack of clarity of understanding or expression (at [34]).

Issue 3: Interpreter Obligation and Adequacy of Communication

Police were not required to arrange an interpreter because they reasonably believed the accused was able to communicate with reasonable fluency in English, satisfying section 128(1)(a) of LEPRA (at [39]). The court accepted that the officers' face-to-face experience gave them a better opportunity to assess the accused's fluency than was available to the court from the electronic recording, where the accused's heavily accented speech was more difficult to follow (at [32]-[33]). Despite finding the accused technically fell within the vulnerable person category, the court was satisfied that Sergeant Waring and Sergeant Page each reasonably believed him not to fall within that category, permitting them to proceed accordingly under Regulation 28(e) (at [40], [53]).

Issue 4: Positive Obligation to Ensure Understanding

The court found that neither Sergeant Waring nor Detective Senior Constable Trethewy had merely read the Form 31 by rote. Both officers took active steps to ensure the accused understood the cautions and his rights, satisfying the positive obligation identified in R v Phung and Huynh [2001] NSWSC 115 (at [43]-[44]). The ERISP demonstrated that the accused engaged intelligently with the process, asked pertinent questions, exercised his right to speak to a lawyer during the forensic procedure, and gave clear affirmative responses during the fairness check conducted by Sergeant Waring at the conclusion of the interview (at [22]-[25], [47]).

Issue 5: Admissibility of the ERISP under the Evidence Act

The court was not satisfied on the balance of probabilities that the ERISP was obtained in circumstances where police knew or ought to have known that the accused's ability to respond rationally was substantially impaired by his English language ability (at [45]). The court was further satisfied that the ERISP was not obtained improperly or in contravention of Australian law under sections 138(1)(a) and 139(3) of the Evidence Act (at [46]-[49]). The accused was able to communicate with reasonable fluency, meeting the requirement that the caution be given in a language in which he could communicate with reasonable fluency.

Issue 6: DNA Evidence and the Forensic Procedure

The court found that the accused's prolonged silence on the question of consent, persisting after more than three hours of delay, legal advice, and repeated explanation of rights, amounted to non-consent for the purposes of section 18(1)(b) of the Crimes (Forensic Procedures) Act (at [78]-[79]). Sergeant Page therefore properly made the order under section 18 to proceed with the forensic procedure on the basis of non-consent (at [82]). The court was also satisfied that the procedure was justified under section 20(c) and 20(e) of the Act, as it had potential to prove elements of the offences charged, consistent with KC v Sanger [2012] NSWSC 98 (at [81]).

Orders Made

  • The ERISP is to be admitted into evidence at the trial on the Crown's tender.
  • The video of the forensic procedure is to be admitted into evidence at the trial on the Crown's tender.
  • The DNA evidence obtained during the forensic procedure on 20 January 2018 is to be admitted at the trial on the Crown's tender.

The court noted that the phrase "on the Crown's tender" does not impose any obligation on the Crown to proceed otherwise than as it would choose.

Key Takeaways

  • A person may fall within the definition of "person of non-English speaking background" in section 3 of LEPRA (born outside Australia with a first language other than English) and therefore be a "vulnerable person" under Regulation 28, even where they demonstrate a competent, working command of English during a police interview (at [36]-[40]).

  • Under section 128(1)(a) of LEPRA, the obligation to arrange an interpreter is triggered only where the custody manager has reasonable grounds for believing the detained person is unable to communicate with reasonable fluency in English. A reasonable belief to the contrary, formed through direct face-to-face engagement, is sufficient to discharge that obligation (at [39]).

  • Heavily accented speech does not equate to inadequate English comprehension or expression for the purposes of the caution and rights provisions (at [34]).

  • The positive obligation on police to ensure a vulnerable person actually understands the caution and their rights, confirmed in R v Phung and Huynh, is not satisfied by rote reading of standard forms. The District Court assessed compliance by reference to the officers' active conduct throughout the interview process (at [43]-[44]).

  • Where an accused person, after extended delay, legal advice, and repeated explanation, neither consents nor refuses to consent to a forensic procedure, a custody manager may treat the absence of consent as non-consent and proceed under section 18 of the Crimes (Forensic Procedures) Act 2000 (NSW), provided the section 20 requirements are otherwise met (at [78]-[79], [82]).

Legislation and Cases Referenced

Legislation
- Crimes (Forensic Procedures) Act 2000 (NSW)
- Evidence Act 1995 (NSW) ss 138, 139(3)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 53, 112(1), 123(8), 128(1)
- Law Enforcement (Powers and Responsibilities) Regulation 2016 r 28
- Crimes Forensic Procedure Act 2000 (NSW) ss 18(1)(b), 20(c), 20(e),

Cases
- R v Lamb [2002] NSWSC 357
- R v Phung and Huynh [2001] NSWSC 115
- R v Deng [2001] NSWCCA 153
- KC v Sanger [2012] NSWSC 98