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Supreme Court 18 November 2024

R v Pham

[2024] NSWSC 1687

Homicide
CRIME PRE

Citation: R v Pham [2024] NSWSC 1687
Court: Supreme Court of New South Wales
Date: 18 November 2024
Judge(s): Rigg J

Background

The accused faced a murder charge arising from a shooting outside a Sefton gym on 2 March 2023, in which the victim was killed in front of a child. The accused was not alleged to be the shooter. The Crown alleged he participated in a joint criminal enterprise by placing vehicles at specified locations and driving the perpetrators to and from the scene.

Following his arrest at Sydney International Airport on 23 April 2023, police executed a pre-planned covert operation. They placed the accused in a police station cell with two undercover officers (UCOs) posing as fellow detainees, while a listening device recorded the conversation under a warrant issued by Sweeney J. The accused made a series of significant admissions during the cell conversation before and after being formally offered a recorded interview, which he declined.

In a pre-trial hearing, the accused sought to exclude the recorded conversation, or parts of it, under sections 84, 90, 137, and 138 of the Evidence Act 1995 (NSW). The court was asked to determine those questions before the jury was empanelled.

Legal Issues

  • Whether the cell admissions should be excluded under s 84 of the Evidence Act on the ground that they were influenced by oppressive, inhuman, or degrading conduct by the UCOs
  • Whether the recording and continued UCO engagement after the accused indicated he would not speak to police was done in contravention of a condition placed on the surveillance device warrant, rendering the evidence inadmissible or discretionarily excludable under s 138
  • Whether various other alleged improprieties rendered the evidence subject to exclusion under s 138, including: alleged breach of LEPRA Regulation provisions about vulnerable persons; deliberate delay of the formal interview offer; and use of two UCOs contrary to the warrant application
  • Whether the admissions, or any portion of them, should be excluded as unfair under s 90 of the Evidence Act

Decision

Issue 1: Section 84 (Oppressive Conduct)

Rigg J was satisfied on the balance of probabilities that the UCOs did not engage in oppressive conduct within the meaning of s 84. The UCOs were not aware of any intellectual disability affecting the accused, and the accused showed no reluctance to participate, engaging quickly and readily in conversation (at [169]). While the court accepted that the accused had a meaningful intellectual deficit and psychological vulnerabilities that contributed to his readiness to engage, that did not make the UCOs' conduct oppressive (at [170]). Their conduct did not degrade or pressurise the accused in terms apt to overbear his will, and he remained capable of declining to speak with them (at [169]-[170]). The s 84 ground was rejected (at [171]).

Issue 2: Section 138 and the Warrant Condition

The court rejected the Crown's argument that the word "police" in the warrant condition referred only to police known to the accused to be police, rather than the UCOs. Rigg J held the condition was plain on its face and consistent with a judicial concern to protect the accused's right to silence (at [173]-[175]). The condition operated "in the event that Le Nghia Pham decides to not speak to police," meaning a decision not to speak in connection with the offence for which he was arrested (at [176]).

The court was comfortably satisfied that at approximately 6:19 pm, corresponding with page 63 of the transcript, the accused had decided not to speak with police. That decision was known to the UCOs, their supervisor, and Senior Constable Lalic (at [180]). Despite this, the UCOs continued to actively elicit admissions. The continued use of the listening device after that point was in contravention of s 7(1) of the Surveillance Devices Act 2007 (NSW), as the recording was no longer being made "in accordance with a warrant," and the conduct constituted a serious impropriety (at [181]-[182]).

Applying the s 138(3) balancing exercise, the court found the impropriety was very grave: the warrant condition was specifically directed at protecting fundamental rights, all relevant officers knew it, and the continued operation was deliberate even though no officer acknowledged a conscious breach (at [196]-[197]). The incremental probative value of the admissions made after 6:19 pm was not high, and the difficulty of obtaining those admissions without continuing the breach supported exclusion rather than admission (at [194], [198]). The Crown did not discharge its onus to demonstrate that the balance favoured admission (at [192]).

Issue 2 (Other s 138 Grounds): LEPRA Regulation, Delayed Interview, Two UCOs, and Misleading Legal Advice

The court rejected each of the four remaining alleged improprieties. The accused did not establish that any breach of the LEPRA Regulation provisions concerning vulnerable persons caused the admissions to be made, as no causal nexus was demonstrated (at [188]). The police did not deliberately delay the formal interview offer to circumvent the warrant condition; it was always part of the sanctioned plan to allow time in the cells before the interview, and the search warrants provided an additional reason for the timing (at [189]). The use of two UCOs was not improper, as the warrant application had always contemplated using one or both, and was not designed to mislead the issuing court (at [190]). The provision of inaccurate information about criminal liability without reference to a mental element did not constitute a significant departure from minimum standards of acceptable police conduct (at [191]).

Issue 3: Section 90 (Unfairness)

Rigg J found that to the extent the recorded conversation was obtained in contravention of the warrant condition, and admissions were induced by conduct that was improper, using those admissions at trial would also be unfair for the purposes of s 90 (at [211]). The court indicated it would exercise its discretion to exclude that portion if necessary. As to the admissions made before 6:19 pm, the accused had not established that the circumstances in combination rendered use of those admissions at trial unfair, and the s 90 ground was otherwise dismissed (at [212]).

Orders Made

  • The recorded conversation from the point where the accused said "I'm not, I'm not gonna say anything, if they ask questions" to the end is excluded pursuant to ss 90 and 138 of the Evidence Act 1995 (NSW).
  • Any evidence of the interactions of the accused with the UCOs during the corresponding period is also excluded pursuant to ss 90 and 138 of the Evidence Act 1995 (NSW).
  • The Notice of Motion dated 7 November 2024 is otherwise dismissed.

Key Takeaways

  • A condition placed on a surveillance device warrant by an authorising judge requiring UCOs to cease engagement once a suspect "decides not to speak to police" operates according to its plain terms: the Supreme Court held that "police" in such a condition encompasses undercover police conducting the covert operation, not merely officers known to the suspect to be police (at [173]-[175]).

  • Where a suspect's decision not to speak to police about the subject offence is known to monitoring officers and UCOs but the covert operation continues regardless, the ongoing use of the listening device falls outside the authority conferred by the warrant and constitutes a contravention of the Surveillance Devices Act 2007 (NSW), as well as a serious impropriety under s 138 of the Evidence Act (at [181]-[182]).

  • Under s 138, difficulty in obtaining specific admissions without continuing to record in breach of a warrant condition weighs in favour of exclusion, not admission, consistent with Kadir v The Queen (2020) 267 CLR 109 (at [198]).

  • A finding that UCOs engaged in deliberate conduct can be made even where no individual officer acknowledged consciously breaching a warrant condition, if the relevant officers knew the condition and knew what the suspect had said, and continued the operation regardless (at [197]).

  • An accused's intellectual disability and psychological vulnerabilities, without more, do not render the conduct of UCOs who were unaware of those vulnerabilities "oppressive" within the meaning of s 84 of the Evidence Act, provided the accused demonstrated no reluctance to engage and retained the capacity to decline to speak (at [169]-[170]).

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)
- Law Enforcement ( Powers and Responsibilities) Act 2002 (NSW)
- Law Enforcement (Powers and Responsibilities) Regulation 2016 (NSW)
- Surveillance Device Act 2007 (NSW)

Cases
- Deacon v R [2019] NTCCA 21
- Em v The Queen (2007) 232 CLR 67; [2007] HCA 46
- Fitz-Gibbon v Wily (1998) 87 FCR 104
- Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34
- Higgins v The Queen [2007] NSWCCA 56
- Kadir v The Queen (2020) 267 CLR 109; [2020] HCA 1
- Mann v R [2023] NSWCCA 256
- Pavitt v Regina [2007] NSWCCA 88
- R v FE [2013] NSWSC 1692
- R v Gallagher [2013] NSWSC 1102
- R v Nelson [2004] NSWCCA 231
- R v Swaffield (1998) 192 CLR 159; [1998] HCA 1
- R v Tang [2010] VSC 578
- R v Tarantino (No 6) [2019] NSWSC 1174
- R v Ul-Haque [2007] NSWSC 1251; (2007) 177 A Crim R 348
- Sidaros v The Queen (2020) 15 ACTLR 64
- Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39