R v Nguyen [1999] VSC 420

Supreme Court of Victoria|1999-10-26|Before: TEAGUE, J.

The accused, Dat Tuan Nguyen, is charged with the murder of Duc Doan Tran between 27 and 28 June 1998. Before a jury was empanelled, an application was made on behalf of the accused by Mr Lewis of counsel to exclude certain evidence, being parts of a covertly recorded conversation between the accused and Ngoc Thi Trinh. Ngoc Thi Trinh is the mother of the deceased. On, and for some time before, 28 June 1998, she was the de facto wife of the accused. At that time the accused, Ngoc Thi Trinh and two of her three children lived in a house in Footscray. The deceased visited that house at times.

Shortly after midnight, in the early hours of 28 June 1998, the deceased died from the effects of a shotgun wound to the upper chest. A few hours later, the accused made a statement to the police, with the assistance of an interpreter. In it, he said that he had been in the lounge of the house watching television, that he heard a loud bang and went into the kitchen where he found the deceased on the floor. At about the same time, Ngoc Thi Trinh made a statement to the police. She also used an interpreter, as her English is limited. Her statement was not inculpatory of the accused, as she indicated that the accused went into the kitchen after the loud noise. She subsequently indicated to the police that aspects of her story relative to the accused were incorrect. With the assistance of her sister, Anla Trinh, who speaks very good English, she provided a second statement. It was inculpatory of the accused. The police enquired of her whether she would co-operate in a plan to have the accused make admissions as to what had happened on the night in question. The plan was that a listening device would be placed inside the Footscray home, and subsequently, Ngoc Thi Trinh would there engage the accused in conversation about the death of the deceased. She agreed and the plan was put into effect. Conversation between the two was duly recorded.

On the voir dire, I heard parts of that conversation, in Vietnamese, played in court. I had before me a 17-page translation of what was recorded as having been heard. To facilitate both better understanding of what I was listening to and ease of reference in argument, I gave numbers to the exchanges on each of the 17 pages. I heard evidence on the voir dire from Ngoc Thi Trinh, from her sister Anla Trinh, from Detective Senior Sergeant Legge and from two interpreters.

The only case cited to me was Swaffield v The Queen, Pavic v The Queen [1998] HCA 1; (1998) 192 CLR 159. That case deals with the exercise of the relevant discretions, and particularly in the context of covertly recorded conversations. The two applications to the court were both ones where what was sought was that the whole conversation be excluded. I had occasion to review Swaffield and Pavic closely, when I ruled, on 15 June 1998, on an application for total exclusion in a matter of Lewis.

If the application is for total exclusion, included in the matters that must or might be had regard to will be:

* the physical mental and emotional state of the accused;

* the location where the conversation was held, and more specifically whether the accused was in detention;

* the status of the person with whom the conversation was held, and the relationship of that person to the accused;

* the existence and if so the character and level of any improper conduct on the part of police;

* the manner in which information was volunteered as against being actively elicited;

* whether the accused had earlier exercised his right to remain silent; and

* the assessment it is possible to make of the reliability of what was said by the accused.

Each one of those matters may have aspects that warrant particularly close attention in a particular case.

Mr Lewis made it clear to me that he was not applying that the whole conversation be excluded.

To so limit his application was a totally understandable forensic decision. Nevertheless, grounds referable to total exclusion, advanced in seeking to have some exchanges excluded while others remain, are unlikely to be as compelling as where the application is to have the whole conversation excluded.

I have adopted the course, which Mr Lewis urged me to adopt, of excluding only some parts of the conversation. I have assumed that all of the matters that it would be proper to have regard to relative to an application for total exclusion could be seen to be relevant to an application for selective exclusion. I have accepted that there are also some more specific or focused matters. They include:

* the level of potential ambiguity in what is said;

* the relevance of what is said to issues in the trial;

* the character of the exchange, and whether a response is volunteered or actively elicited (as to which see Swaffield and Pavic, and my ruling in Lewis)

* whether the response comes in answer to the putting of an open question or a closed question or the stating of an opinion or an expression of emotion or some other position;

* whether there is a positive response to a question;

* whether there is not one but two or more propositions in a question or statement potentially calling for a response;

* whether there is some other potential for prejudice, such as that there is in a question or statement an accusation of an uncharged criminal act.

There are also other particular matters that need to be addressed in the circumstances of the particular case. Where, as in this case, the conversation is in a foreign language, the need for translation adds a further cause for caution, particularly as to matters of meaning. Here, as in other circumstances where selective exclusion is appropriate, consideration must be given to permitting matters to remain as part of the context, even though they might, on a strict analysis, warrant exclusion because they are irrelevant or are not clearly audible or amount to a translator's comment.

Adopting the approach outlined above, I took the 17 page transcript, and divided it up into "exchanges" between the female speaker and the male speaker, and ultimately ruled that the following exchanges be excluded: the first five lines of 1/1, 1/7, 2/3, 2/8, 4/6, 4/8, 4/9, 5/9, 5/10, 6/1, 6/2, 6/6, 6/7, 6/8, 6/9, 6/10, 6/11, 7/1, 7/2, 8/6, 8/7, 8/8, 8/9, 9/1, 9/2, 9/3, 9/7, 9/8, 9/9, 10/9, 10/10, 11/1, 11/4, 11/5, 12/6, 12/7, 13/7, 13/8, 14/1, 14/2, 14/3, 14/4, 14/4, line 1 of 14/5, line 1 of 15/7,16 + 17.

Mr Lewis urged me to exclude in addition two other exchanges, being exchange 2/4 taken with the first three words of 2/5, and exchange 12/2. I do not accept that there is an unacceptably high level of lack of clarity or ambiguity in either exchange. It seemed to me that there was no major difference as between interpreters in how the words in Vietnamese were to be rendered in English. There was no disagreement as to the words used. There seemed to me to be nothing unfair or untoward about what Ngoc Trinh said as a lead in to the accused responding as he did. In 2/4, she expressed a willingness to forgive the accused. In 12/2, she asked an open question. There was no occasion, in the light of either surrounding discussion or the whole of what was said, for me to feel any concern as to the reliability of what was said.

Mr Lewis sought to invoke a concern as to unfairness based on the approach to the asking of questions of the accused by Ngoc Trinh in the light of differing accounts as to what instructions or guidance moulded that approach. I had major reservations about the evidence of Ngoc Trinh before me as to such matters. As well as watching her give evidence, I have read her three statements and the transcript of her evidence at the committal hearing. She struck me as a woman whose loyalties were divided, but who now was crafting her answers to suit what she perceived to be the best interests of the accused. I had that same impression with respect to her first statement and her evidence at the committal, as compared with her second and third statements. On the other hand, her sister, Anla Trinh, impressed me both as reliable, and as a person unlikely to press her sister to do more than asked by the police.

I would stress that my primary focus was maximally on what was said in the conversation between Ngoc Trinh and the accused, and minimally on what preceded it. I accept that the approach of Ngoc Trinh to the conversation must have been affected by her knowledge that it was being secretly recorded. But what I was most conscious of was that the approach of Ngoc Trinh, in her conversation with the accused, did not seem artificial or crafted but was essentially that of a mother of a dead son seeking a better understanding of why and how what had happened had happened.

Mr Johnston urged me to make no or minimal exclusions from the conversation. I rejected that position, and opted to exclude many exchanges that were inaudible in part or that were unduly repetitious, or that were irrelevant, or that I treated as having been elicited unfairly as by a closed question or by more than one proposition added together, or that did not lead to a positive answer.

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