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8
Supreme Court 26 February 2001

R v Phung and Huynh

[2001] NSWSC 115

HomicideTheft & propertyPublic order & justice offences

Citation: R v Phung and Huynh [2001] NSWSC 115 revised - 15/05/2001
Court: NSW Supreme Court, Common Law Division
Date: 26 February 2001
Judge(s): Wood CJ at CL

Background

The two accused were charged with serious offences arising from events at a Liverpool entertainment venue on 19 December 1998. The charges included the murder of one person and the armed robbery of three others. Both accused pleaded not guilty to all four counts.

Police arrested the accused shortly after midnight on 20 December 1998, having spotted them leaving the vicinity of the venue in a vehicle matching descriptions. The accused Phung was 17 years of age at the time of his arrest and was taken to Liverpool Police Station, where he was held for several hours before being interviewed electronically on that date and again on 4 January 1999.

Counsel for Phung objected to the admissibility of both electronic records of interview (ERISPs) on the grounds that police had failed to comply with relevant legislative obligations governing the detention and questioning of juveniles and other persons in custody.

  • Whether police complied with section 13 of the Children (Criminal Proceedings) Act 1987 in conducting the interviews with a 17-year-old accused
  • Whether police complied with Part 10A of the Crimes Act 1900 (NSW) governing the detention of persons after arrest
  • Whether police complied with the Crimes (Detention After Arrest) Regulation 1998, including obligations to ensure comprehension, to provide a support person, and to inform the accused of relevant rights
  • Whether the two electronic records of interview should be excluded as a result of those non-compliances

Decision

Wood CJ at CL identified a series of failures in the way police dealt with Phung during his detention. These included the absence of a support person during forensic procedures in the early hours of the morning, a decision recorded in the custody management report that no support person would be provided at that time so as not to risk losing evidence. The application for a detention warrant extension was also made without reference to the accused, despite his entitlement to make submissions in relation to it.

The custody manager read aloud portions of the required caution and summary form and then handed it to Phung to read himself. Phung, however, gave evidence on the voir dire that he was unable to read English, having ceased formal schooling in primary school. This raised serious questions about whether the obligations under the legislation to ensure that a juvenile or vulnerable person understood what was being communicated to him had been met.

There were further difficulties with the support person who ultimately attended. The cousin and employer of the accused (Sumsung) was permitted only a very brief conversation with Phung before the interview commenced, and part of that exchange was conducted in English at the investigating detective's request. The aunt who also initially attended withdrew due to illness shortly after the interview began. No evidence was led as to whether the custody manager had explained to either support person what was required of them under the legislative regime.

The Crown bore the onus of proving compliance with the legislative framework, and the court found that it had not discharged that onus. Both electronic records of interview were accordingly ruled inadmissible.

Orders Made

  • The records of interview conducted electronically with the accused Johnny Phung on 20 December 1998 and 4 January 1999 were rejected.

Key Takeaways

  • Under the legislative regime governing detention after arrest in New South Wales, the Crown bears the onus of proving compliance with the relevant statutory and regulatory requirements; if that evidence is not secured, exclusion of the interview may follow.
  • A rote reading of cautions, or handing printed forms to an accused to read, does not itself satisfy the positive legislative obligation to ensure that a juvenile or vulnerable person actually understands what is being communicated.
  • Where a support person is provided for a juvenile accused, the legislative framework requires more than merely securing that person's physical presence; there must be evidence that the support person was informed of, and able to fulfil, their role.
  • The Supreme Court observed that custody managers should, wherever possible, record by audio or video their conversations with an accused and with support persons, particularly in cases involving serious offences, given that custody management forms alone are unlikely to be a sufficient record.
  • Forensic procedures conducted on a juvenile in the absence of a support person, on the basis that the presence of such a person might cause evidence to be lost, were identified as a significant compliance failure in the circumstances of this case.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), s 13
- Crimes Act 1900 (NSW), Part 10A
- Crimes (Detention After Arrest) Regulation 1998 (NSW), including regulations 20 and 29

Cases cited: No cases were cited in the portion of the judgment provided.