The accused, Tan Seng Kiah, entered a plea of not guilty to a charge that:

Being knowingly concerned in the importation of prohibited imports to which Section 233B of the Customs Act 1901 applies Contrary to paragraph 233B(1)(d) of the Customs Act 1901:

Between 20 May 1995 and 1 July 1995 at Darwin and elsewhere, Tan Poh What, Tan Seng Kiah and Foo Siang Pin were knowingly concerned in the importation into Australia of prohibited imports to which s233B of the Customs Act 1901, applies, being narcotic goods consisting of a narcotic substance, namely heroin being not less than the commercial quantity applicable to heroin.

The accused challenged the admissibility of a Record of Interview dated 3 July 1995. The challenge to the admissibility of the Record of Interview proceeded at a hearing on the voire dire commencing on 1 April 1997 and concluded on 16 April 1997.

The substance of the challenge to the admissibility of the Record of Interview is the delay between the time of arrest at approximately 7.15am on 1 July 1995 and the commencement of the Record of Interview at 2.41pm on 3 July 1995. The defence allege a fundamental breach of the requirements of s23C of the Crimes Act . The onus is upon the Crown to satisfy this Court that there was relevant "down time", such that the investigating period had not expired by the commencement of the Record of Interview - s23C(8).

It is not in dispute that during this time the accused was held in custody in the watchhouse at Berrimah Police Centre. He was not brought before a magistrate and there was no application made to a magistrate to extend time for the investigation period.

The relevant provision of the Crimes Act is s23C which provides as follows:

"23C (1) If a person is lawfully arrested for a Commonwealth offence, the following provisions apply.

(2) The person may be detained for the purpose of investigating whether the person committed the offence or any other Commonwealth offence, but must not be detained for that purpose, or for purposes that include that purpose, after the end of the investigation period prescribed by this section.

(a) released (whether unconditionally or on bail) within the investigation period; or

(b) brought before a magistrate within that period or, if it is not practicable to do so within that period, as soon as practicable after the end of that period.

(4) For the purposes of this section, but subject to subsections (6) and (7), the investigation period begins when the person is arrested, and ends at a time thereafter that is reasonable, having regard to all the circumstances, but does not extend beyond:

(a) if the person is or appears to be under 18, an Aboriginal person or a Torres Strait Island - 2 hours; or

after the arrest, unless the period is extended under section 23D.

(5) In ascertaining any period of time for the purpose of this section, regard shall be had to the number and complexity of matters being investigated.

(6) If the person has been arrested more than once within any period of 48 hours, the investigation period for each arrest other than the first is reduced by so much of an earlier investigation period or periods that occurred within that 48 hours.

(7) In ascertaining any period of time for the purposes of sub-section (4) or (6), the following times are to be disregarded:

(a) the time (if any) that is reasonably required to convey the person from the place at which the person is arrested to the nearest premises at which the investigating official has access to facilities for complying with this Part;

(b) any time during which the questioning of the person is suspended or delayed to allow the person, or someone else on the person's behalf, to communicate with a legal practitioner, friend, relative, parent, guardian, interpreter or other person as provided by this Part;

(c) any time during which the questioning of the person is suspended or delayed to allow such a legal practitioner, friend, relative, parent, guardian, interpreter or other person to arrive at the place where the questioning is to take place;

(d) any time during which the questioning of the person is suspended or delayed to allow the person to receive medical attention;

(e) any time during which the questioning of the person is suspended or delayed because of the person's intoxication;

(f) any time during which the questioning of the person is suspended or delayed to allow for an identification parade to be arranged and conducted;

(g) the time (if any) that is reasonably required to make and dispose of an application under section 23D;

(h) any reasonable time during which the questioning of the person is suspended or delayed to allow the person to rest or recuperate.

(8) In any proceedings, the burden lies on the prosecution to prove that:

(a) the person was brought before a magistrate as soon as practicable; or

(b) any particular time was covered by a provision of subsection (7).

In particular s23C(7)(b) allows time taken to communicate with an interpreter as time to be suspended or delayed when considering the 4 hour limit imposed under s23C(2), (3) & (4). The essence of the defence complaint is the time taken by Police to arrange for an interpreter to attend the Berrimah Police Station and communicate with Mr Tan Seng Kiah.

The relevant facts in respect of Tan Seng Kiah which I find proved are as follows:.

Tan Seng Kiah and his girlfriend, Soh Geok Leng, occupied room 211 at the Don Hotel at the relevant time. At approximately 7.15am on the morning of 1 July 1995, Detective Corby with Detective Stevens, Detective Leo and Detective Dalla Costa entered room 211 at the Don Hotel. Detective Corby had a search warrant (Exhibit P3) to search the room for evidence in relation to alleged importation of heroin.

Detective Corby explained this to Tan Seng Kiah in English and handed him a copy of the search warrant to read. He asked Tan Seng Kiah if he spoke English to which Tan Seng Kiah replied "a little". Tan Seng Kiah appeared to read the copy of the search warrant and when asked if he understood the contents of the search warrant said "not really". Detective Corby was made aware at this time that an interpreter would be needed for Tan Seng Kiah. Detective Corby's evidence at transcript p180 is as follows:

"Now, when do you claim that you first became aware that Mr Tan needed an interpreter or could be assisted by an interpreter?---When did I first became (sic, become) aware that he needed the interpreter was ... at the room while I was executing the search warrant.

You were very familiar with the fact that there'd been numerous listening devices, numerous conversations listened into, all of which were not in the English language?---Yes.

And you'd be very familiar as to what language - I mean, there would have been numerous discussions in your investigating team as to what language was being used?---Yes.

So you knew that his natural language, the language that he conversed with these other people with any how, was a language other than English?---Yes.

And there was something about what he said at the room when you executed the search warrant which indicated to you that he was unable to converse properly in English?---Yes.

When was it you were first told what type of interpreter was needed?---I can't recall when ... it was exactly ... the first time I was told what type of interpreter he needed.

At the conclusion of the search of the room, Detective Corby seized certain items of clothing.

I accept the evidence of Detective Leo that Tan Seng Kiah was advised he was under arrest. The evidence of Detective Leo at transcript 30 is as follows:

"Well, did Corby tell Mr Tan that he was under arrest?---During the search he - he did, yes.

What did he say he was under arrest for?---Commonwealth offence in relation to the importation of drugs.

Just a Commonwealth offence in relation to the importation of drugs, is that right?---Yes, I can't recall the exact wording he used."

Detective Taylor made contact with Police Headquarters shortly after arrest and specifically asked officers Schrapel and Croker to obtain interpreters for the persons arrested, transcript p463.

Detective Corby advised Tan Seng Kiah that he had a warrant to search a vehicle driven by Tan Seng Kiah the previous night and asked if he would accompany police to the vehicle which was parked at the front of the Don Hotel in Cavenagh Street. Detective Corby gave evidence (transcript p150) as follows:

"At the conclusion of the search of the hotel room, did you go anywhere?---Yes, I did.

Where did you go?---I said to Mr Tan that I also had a warrant to search a vehicle that he'd been driving the previous night and I asked him would he accompany us to that vehicle, which was currently parked at the front of the Don Hotel in Cavenagh Street."

At approximately 8.15am police accompanied by Tan Seng Kiah went down to the vehicle parked outside the Don Hotel. This vehicle was searched and two black bags, located in the boot of the vehicle, were seized.

At the conclusion of the search of the vehicle Detective Corby spoke with Tan Seng Kiah. The evidence of Detective Corby is as follows (transcript p150-151):

"At the conclusion of the search of the vehicle, did you speak with Mr Tan further?---Yes, I did.

What did you say to him?---I said: 'Mr Tan, I wish to ask you some further questions in relation to your involvement in the importation of a quantity of drugs into Australia and I propose to take you to the police station to ask you these questions. Those questions will be recorded on tape, as the interview takes place.' I said: 'Do you understand?' He said: 'Yes.' I then said: 'You are not obliged to say anything or answer any of my questions unless you so desire, as anything you do say will be recorded on tape and may later be given in evidence.' I said: 'Do you understand?' He said: 'Yes'."

At 8.25am Tan Seng Kiah was conveyed to Berrimah Police Centre and taken straight to the watch house and admitted to the watch house.

At 9.02am Detective Leo entered the name Tan Seng Kiah onto the IJIS system and Tan Seng Kiah was handed over to the custody of the watch house staff. (Exhibit P14)

Shortly before Tan Seng Kiah was taken from the interview room, where Detective Leo was completing the paper work, to be placed in the cells, Detective Corby asked Tan Seng Kiah if he wished to speak to anyone from the Embassy to which he replied "No". The evidence of Detective Corby (transcript p151) is as follows:

"Did you have any conversation with Mr Tan Seng Kiah at that time, or at any time soon thereafter, prior to him being placed into cells?---While - shortly after he was being taken from the interview room where Detective Leo was completing the paperwork, and being placed in the cells, I asked him did ... he wish to speak to anyone from the embassy, to which he replied 'no'.

Now, Mr Tan Seng Kiah, I take it, was then removed from your presence and placed inside a barred holding cell?---That's correct."

Detective Corby then went upstairs to the offices of the CDEU. His first duty was to lodge the property which had been seized during the execution of the search warrant. Detective Taylor then asked him to conduct an interview of Mr Tan Seng Kiah with Federal Agent Bessant.

Agent Bessant arrived at Berrimah Police Centre at approximately 9.00am (transcript p49).

On the morning of 1 July 1995 Detective Taylor was at the Frontier Hotel. At approximately 7.27am he executed a search warrant at room 301. Shortly afterwards, Detective Taylor made a radio transmission to Detective Schrapel at the Berrimah Police Centre asking for him to arrange for Chinese interpreters for the people at the Frontier Hotel and, after being updated on the other people taken into custody, also requested interpreters for those persons. It was known that Mr Tan Seng Kiah required an interpreter in the Mandarin language.

Between the time of his arrival at Berrimah Police Centre at 9.00am and 11.00am that morning, Agent Bessant had numerous conversations with Detective Taylor about the provision of interpreters (transcript p74). Agent Bessant was aware of the requirement of s23C of the Crimes Act in respect of the four hour rule. He believed that the officers who were performing administrative duties including Detective Schrapel were undertaking inquiries to obtain interpreters.

Between 9.00am and 11.00am Agent Bessant was preparing himself to undertake a Record of Interview with Tan Seng Kiah. At approximately 11.00am Agent Bessant, in company with Constable Corby, had a conversation with Tan Seng Kiah through the bars of the cell in which Tan Seng Kiah was held. The conversation was tape recorded on a cassette tape. At the conclusion of the conversation Agent Bessant placed the cassette tape in the interview box for Tan Seng Kiah in the offices of the Combined Drug Enforcement Unit (CDEU). The cassette tape has been lost and was not tendered in evidence on the voir dire.

I accept the evidence of Agent Bessant (transcript p51) which is substantially supported by the evidence of Constable Corby that this conversation was as follows:

Agent Bessant introduced himself and Constable Corby. Agent Bessant informed Tan Seng Kiah that they were trying to arrange an interpreter for him and told him they were having difficulties obtaining a Mandarin speaking interpreter. Agent Bessant told him he had been informed by Constable Corby that Constable Corby had already asked Mr Tan if he required to speak to somebody from the Embassy and Tan Seng Kiah had said no. Tan Seng Kiah replied that he did not understand what the term Embassy meant but now it was put in terms of the consulate he did wish to speak to a member of the Consulate. Agent Bessant informed him he would endeavour to get in contact with a Consulate officer.

I also accept the evidence of Agent Bessant that he then returned to the offices of the CDEU and informed Sergeant Taylor of Tan Seng Kiah's desire to speak to the consular officer and also informed Sergeant Taylor that they had told Tan Seng Kiah that they were still endeavouring to obtain a Mandarin interpreter for him.

Between 12 noon and 12.30pm, Constable Corby was advised that there was an interpreter at the Police Centre available for use but that he was presently tied up in other interviews and would not be available until the other interview had concluded (transcript p179).

Koh Ping Ang is an interpreter accredited with Translator Interpreter Service (TIS). Mr Ang is an interpreter of the Mandarin language. On the morning of Saturday 1 July 1995, Mr Ang was contacted by telephone by TIS from their Melbourne office and informed his services were required at the Berrimah Police Centre. Mr Ang inquired how long his services would be required and was told they couldn't be sure but it could be one or two hours. Mr Ang was at the Berrimah Police Centre within an hour and arrived to commence interpreting at 10.45am. He waited a short while and was then called in to interpret for a gentleman named Mr Foo. The interview continued to 3.42pm (Martin transcript p122). At the conclusion of this interview police asked him to do a second interview which was straight forward and only short. Mr Ang agreed. He left the Berrimah Police Centre at 6.15pm on 1 July 1995. Mr Ang gave evidence that he was only available as an interpreter during normal office hours. Mr Ang could not remember if he was asked to do any more interpreting on that weekend but stated he was not available to interpret on either Sunday 2nd or Monday 3rd July. Mr Ang's services could only be contracted through TIS.

Mei McGrath is an interpreter registered with TIS. Mrs McGrath is an interpreter in the Mandarin language. Mrs McGrath is a busy woman with three children and does not normally do interpreting work on the weekends or in the evening. In response to a telephone call from TIS, Mrs McGrath went to the Berrimah Police Centre on the afternoon of Saturday 1 July 1995. She had stated she would only be available for 2 hours. She was at the Police Centre from approximately 2.30pm - 4.35pm. Mrs McGrath was utilised for an interview with two persons, Tan Poh What and Lim Chye Siew. At about 4.00pm Mrs McGrath became available to interpret an interview with Tan Seng Kiah. Tan Seng Kiah was brought from the cells to the interview room. Present at the interview was Constable Corby, and the person conducting the interview, officer Bessant and the interpreter Mrs McGrath. I accept the evidence of Constable Corby that the conversation went as follows (transcript p155):

"Federal Agent Bessant said 'I am Federal Agent Bessant of the Australian Federal Police, this is Federal Agent' - or 'Detective Corby. We wish to ask you a number of questions in relation to an allegation that you are involved in the importation of a quantity of drugs into Australia. Do you understand?' Mr Tan, through the interpreter, said: 'Yes.' Detective Bessant said: 'Before we ... conduct the record of interview I must advise you that you have the right to contact a member of your consulate, do you understand?' He said: 'Yes.' He said: 'Do you wish to contact a member of your consulate?' To which he replied: 'Yes.' Federal Agent Bessant then said words to the effect that: '... I must advise you that you also have the right to contact, or attempt to contact a legal representative, and speak with them and arrange for that legal representative to be present during the record of interview. Do you understand?' He said: 'Yes.' Federal Agent Bessant said: 'Do you wish to contact a legal representative or a lawyer? To which he replied: 'Yes.' Mr Tan also said that: 'I'm very tired', and we then suspended the record of interview.

Where was Mr Tan taken to after that interview concluded?---He was conveyed back to the ... police cells.

Did you in effect re-lodge him into watchhouse custody after that interview?---Yes, I did.

How long did the interview take on your estimation?---10/15 minutes."

The interview took about 10-15 minutes at the end of which time Tan Seng Kiah was returned to the police cells at 4.13pm (Exhibit P14).

Neither Federal Agent Bessant nor Constable Corby personally attempted to make contact with the consulate or a lawyer. Agent Bessant spoke with other persons to make these arrangements being the Watch House supervisor and officers in the CDEU. Constable Corby also discussed these matters with Sergeant Taylor.

At 4.24pm the Watch House staff placed a call to Legal Aid on behalf of Tan Seng Kiah. At 4.28pm they were advised the Australian Legal Aid mobile telephone was turned off. A call was placed to Aboriginal Legal Aid and received advice that the field officer was not on duty.

At 10.00am on 2 July 1995 there was a debriefing session held in the offices of the CDEU. Detective Martin inquired about interpreters and was told there were none available. Sergeant Taylor was aware of the requirements placed on him and other investigating officers pursuant to the provisions of s23C of the Crimes Act . Sergeant Taylor was scheduled to participate in a Record of Interview with Tan Poh What but had been unable to commence because there were no interpreters available. The Record of Interview with Tan Poh What took place on the afternoon and evening of 2 July 1995 from 2.55pm to 8.18pm.

During Sunday 2 July 1995, Federal Agent Schrapel and Sergeant Croker, both of whom had administrative duties in respect of this operation, attempted on about half a dozen occasions to contact interpreters through TIS.

At 12noon, Federal Agent Bessant attended Berrimah Police Centre. He was informed by Federal Agent Zuccato that no interpreters were available and a solicitor had not been obtained for Tan Seng Kiah (transcript p96). Agent Zuccato informed Agent Bessant that an interpreter was being made available but Agent Bessant would have to wait. Agent Zuccato told Agent Bessant to stand down and await instructions from Agent Zuccato as to when it would be possible to conduct a Record of Interview. Agent Zuccato contacted Agent Bessant for this purpose late in the morning of the following day.

Agent Bessant left the Berrimah Police Centre at about 12.20pm on 2 July 1995 and did not speak with Tan Seng Kiah on that date.

At 2.00pm on 2 July 1995, Chien Loi Chin a Mandarin interpreter arrived at Berrimah Police Centre and was engaged in a Record of Interview with Tan Poh What from 2.55pm to 8.18pm. Mrs Chin was asked to stay on to do a further interview but said she could not as she had a young baby at home (transcript p474). She was not available to provide services as an interpreter on Monday 3 July 1995 as she had a permanent position as an Administrator with Jape Furnishing.

At 2.45pm Tan Seng Kiah was removed from the Watch House. Sergeant Leslie John Martin spoke with Tan Seng Kiah in the company of Detective Sergeant Scott at the request of Detective Taylor at 2.48pm. Tan Seng Kiah advised he no longer wished the attendance of a lawyer or consulate representative before the interview. Sergeant Martin advised him the interview would commence as soon as an interpreter who could speak both Mandarin and English was available. Tan Seng Kiah was advised of his rights not to have to answer questions. Sergeant Martin then advised Tan Seng Kiah he would arrange an interpreter for the interview. The interview concluded at 2.53pm and Tan Seng Kiah was returned to the police cells. The audio tape of this interview was played (Exhibit P2) and a transcript submitted as an aide memoire.

Sergeant Martin returned to the CDEU offices. He was told there was only one Mandarin speaking interpreter available that day and that this interpreter was presently being used in another interview and would be available at the end of this interview. At 4.00pm the other interview was still proceeding and Sergeant Martin was told the interpreter would not be available until later in the evening. He was stood down and told he would be contacted when the interpreter became available. During this time the interview with Tan Poh What was in progress with the Mandarin speaking interpreter Chien Loi Chin. Detective Martin was later informed that at the completion of the Record of Interview with Tan Poh What on the evening of 2 July, the interpreter was too exhausted to participate in a further Record of Interview. Detective Martin was informed that there were no other interpreters available.

On the morning of Monday 3 July 1997, either Detective Schrapel or Detective Croker telephoned Sergeant Martin and asked he attempt to contact a Mr Wong. Sergeant Martin telephoned Mr Wong at his place of employment and spoke with Mr Wong. Mr Wong advised Sergeant Martin that he would not be able to attend at the Berrimah Police Centre until 2.00pm which was in about 4-5 hours time. Sergeant Martin had been told there were no other interpreters available that day.

At 2.00pm Mr C.K. Wong arrived at Berrimah Police Centre and was taken to the interview room (Exhibit P5). Tan Seng Kiah was removed from the cells for the purpose of interview at 2.17pm (Exhibit 14).

At 2.41pm the Record of Interview conducted by Agent Bessant commences and concludes at 4.55pm

At no time did a police officer seek an extension of time from a magistrate pursuant to s23D of the Crimes Act .

At the time of the completion of the Record of Interview, Tan Seng Kiah had been in custody for approximately 2 days and 9[Omega] hours. He had not been brought before a magistrate nor had any extension of time been sought pursuant to s23D of the Crimes Act .

In respect of the availability of interpreters during the period Saturday 1 July to Monday 3 July 1995, I make the following further findings.

A decision to execute search warrants and effect arrests of the accused and a number of other persons, was made in the early hours of the morning of 1 July 1995. There were 20 persons who required interpreters arrested at approximately 7am - 7.30am on the morning of the 1st July 1995 following Police investigation into an alleged heroin importation. These persons were in different motels in Darwin and on board the Teh Sun 16 in Darwin harbour. I accept it would not have been practical to obtain interpreters at the time of their arrest. I accept the evidence of Sergeant Taylor that for security reasons it was not considered appropriate to forewarn interpreters prior to the arrests as to a time they would be needed.

At the relevant time the only way police could obtain interpreters was to contact by telephone either the Translator Interpreter Service (TIS) or the Northern Territory Translation Interpreter Service (NTTIS). All the known interpreters could only be contacted through either of these services. Interpreters were then contracted by either of these organisations to provide interpreting services. On weekends telephone calls to NTTIS were relayed through a telephone number for TIS in Melbourne. Arrangements would then be made from the TIS office in Melbourne to contact an interpreter. NTTIS did not operate an after hours service independent of TIS. Only those interpreters who were registered with TIS would be contacted over the weekend. Neither the Australian Federal Police or the Officers of the Combined Drug Enforcement Unit had access to interpreters other than through TIS on the weekend and during the week through TIS and NTTIS.

On 1 and 2 July 1995, Federal Agent Schrapel was performing administrative duties at the Berrimah Police Centre. Shortly after 7.30am on 1 July he was requested by Sergeant Taylor to arrange interpreters. Agent Schrapel placed a call to TIS within two hours from the time of execution of the search warrants. He requested four Chinese interpreters including one who could speak the Hokkien dialect and a request for Vietnamese and Indonesian interpreters. Agent Schrapel advised TIS as to the importance of having such interpreters and that they were required by law. He was informed by TIS that they would get back to him about the availability of interpreters. Initially, TIS responded at approximately 9.30am advising they were not able to contract the services of an interpreter (evidence Schrapel transcript p199). At 10.22am Mr Ang was contacted by TIS. He attended Berrimah Police Centre at 10.45am and was engaged in records of interview with Mr Foo and Ms Soh until 6.15pm. At 9.49am Mrs Latif was contacted by TIS but advised she would not be available after 12noon as she had a booking to interpret at Expo. Agent Schrapel made a decision that as a matter of fairness she not be contracted. Shortly after 9.47am Agent Schrapel was contacted by TIS and offered the services of Ms Lillian Ong. Ms Ong declined her services stating that she believed she knew some of the people involved as she worked at the Don Hotel and had witnessed the execution of the search warrants. TIS contacted Chien Loi Chin on the morning of 1 July 1995. Mrs Chin advised she was not available. There was no inquiry made as to her availability later that day. Mrs Chin did attend the Berrimah Police Centre the following day and was the interpreter for Tan Poh What.

TIS also contacted Mrs McGrath who advised she was only available for a two hour block. Mrs McGrath attended the Berrimah Police Centre at 2.00pm, she interpreted for Tan Poh What, Tan Seng Kiah and Lim Chye Siew and left the Berrimah Police Centre at 4.35pm.

Alice Tang was working as an interpreter at the NT Trade Expo between 9.00am to 5.00pm on 1 July 1995. Mr Wong was at Expo between 8.30am and 12.30pm on 1 July 1995. He was not contacted by TIS during the balance of the day.

On 2 July 1995, Agent Schrapel made approximately half a dozen telephone calls to obtain interpreters through TIS but was unsuccessful.

Mr Ang gave evidence that he could not remember whether he was asked to interpret on the Sunday but states he would not have accepted because he had been interpreting for too long and had something else to do so he was not free. On Monday 3 July 1995 he had work commitments.

Mrs Latif worked at Expo between 12.30pm and 6.30pm on Sunday 2 July 1995 and was at Expo from approximately 11.00am that day (transcript p321).

Mrs McGrath's evidence is that she was back and forth to Expo on Saturday 1st July and Sunday 2nd July 1995. There is no evidence whether TIS contacted or attempted to contact her on 2nd July 1995. Chien Loi Chin was contacted by TIS at approximately 12.00 o'clock. She attended Berrimah Police Centre at 2.00pm. She was engaged in a Record of Interview with Tan Poh What between 2.55pm and 8.18pm. She could not remain to do any further interviews as she is the mother of a small child. Because of her work commitments she told police she could not return to interpret on Monday 3 July 1995.

Mr Wong was at Expo between 8.00am and 12.30pm on 2nd July, 1995. He was not contacted by TIS during the balance of the day.

On Monday 3rd July 1995, Mrs Latif was booked for other interpreting work with the Chinese delegation and was not available for interpreting at Berrimah Police Centre.

Mr Wong was contracted to interpret at the Magistrates Court at 9.00am. Sergeant Martin was given his number by other police and contacted Mr Wong who advised he was unavailable until 2.00 o'clock. Sergeant Martin made a diary entry at the time that he had contacted someone at the YMCA.

Mr Wong arrived at the Berrimah Police Centre at 2.00pm. He commenced interpreting for a Record of Interview with Tan Seng Kiah at 2.41pm, which was competed at 4.55pm.

Melinda Dunlop is a booking clerk with the NTTIS. As at 1st July 1995, NTTIS had six level 2 NATI accredited Mandarin Interpreters registered with their office, they were: Monica Hah, Belina Lai, Andrew Leo, Lillian Ong, Susan Tsang and Doris Van Der Zwaag.

There were also a further eight non accredited Mandarin interpreters registered with the service.

On the weekend of 1 & 2 July 1995, there had been a pre booking for four interpreters who could speak Mandarin for the Trade Expo at Darwin High School.

The four persons who were booked were Mr Leo, Mrs Tsang and Mrs Van Der Zwaag and one of the non accredited interpreters, Mrs Latif.

Mandarin is the most commonly sought after language interpreting facility in the Chinese language.

Ms Helen Hamid was the officer in charge of the TIS in Darwin in July 1995. The Darwin office is manned between 8am - 4pm Monday to Friday. The evidence of Mrs Hamid is that:

"Outside of those hours, weekends and public holidays, the phones are handled in Melbourne through an after-hours number which is recorded on an answering machine if anyone wants to ring the local TIS number.

All right. So in the event that a request by telephone was sought to be made with your office, let us assume on a Saturday, the caller would not be in a position to speak with any person in Darwin to request the provision of interpreting or translating assistance; is that so?---That's correct.

That person would hear a recorded message providing a Melbourne number; is that so?---That's correct."

"So it wouldn't be a case then for the requesting party to ring TIS and say: 'Look, can I have a list of your available interpreters and I'll set about finding which one I want'. That would not occur?---That's right. It's up to TIS to determine who is the best and the most available interpreter for the job according to knowledge of the service and all communication is done through the TIS office."

In addition to interpreters already mentioned, the list of Mandarin speaking interpreters registered with TIS as set out on the interpreter panel (Exhibit P5) with relevant comment noted on that document are as follows:

"Mrs Rita Hoh - Alice Springs 2. Ms Lu Sa Lai - No contract do not use 3. Ms Lillian Ong - Sometimes available 4. Ms Susan Tang - Not available till further notice"

I am satisfied that police could only contact interpreters on 1 and 2 July 1995 by ringing TIS which was also the after hours number for NTTIS and TIS would arrange an interpreter. I am satisfied police had no other source to which they could turn to obtain interpreters at this time. It was an unfortunate coincidence that the arrest of the accused occurred on the very weekend a number of Mandarin speaking interpreters had been pre-booked for the Darwin Trade Expo. I am also satisfied that when TIS attempted to make contact with other interpreters, they were all either not available, could not be contacted, or were available only for limited periods between 1 and 3 July 1995. I am satisfied that all reasonable efforts were made by police to obtain the necessary interpreters and the delays in obtaining their services were due to circumstances beyond the control of the police.

I am satisfied that Police did not deliberately delay or stall the process of obtaining an interpreter. I reject the submission on behalf of the defence that there were deliberate delaying tactics on the part of Police.

I am satisfied that TIS made all reasonable efforts to contact appropriate interpreters at the request of Police.

In respect of Mr Tan Seng Kiah the delay in obtaining a solicitor or a consulate representative was subsumed by the delay occasioned in obtaining an interpreter.

Prima facie to hold a person in custody from 7am on 1st July to 4.55pm on the 3rd July 1995, without seeking an extension of time from a magistrate, a judicial officer or a Justice of the Peace, is a breach of s23C of the Crimes Act such is to result in the rejection of the Record of Interview.

However, I am satisfied that in the circumstances of this case, there is a satisfactory explanation for the delay in bringing Tan Seng Kiah before a Magistrate. The reasons have already been detailed and fall into the following broad categories.

1. The only avenue open to Police to contact interpreters was through TIS.
2. The limited number of persons in Darwin either qualified or with the necessary skills to interpret in either the Mandarin or Hokkien language and, of this number, some were either not available or could not be contacted when TIS telephoned them.
3. The fact that on the particular weekend of the 1st and 2nd July, 1995 4 of the Mandarin speaking interpreters were already contracted to interpret at the Expo and were not available to Police.
4. The fact that on the morning of 1st July 1995 a total of 20 persons were taken into custody who required the services of an interpreter (transcript p236). A number of those required a Hokkien or Mandarin speaking interpreter. This inevitably meant there were too few interpreters for the number of suspects, resulting in a queuing up for interpreters to conduct a Record of Interview.

In the circumstances of the Police operation, it was not unreasonable and I accept necessary for security reasons that there be simultaneous arrests of all twenty people. I also accept the evidence of Sergeant Taylor that for security reasons it was not appropriate to forewarn any interpreters and have them available at the time of arrest. This would also have had significant practical difficulties, particularly as the final decision to carry out the arrests was only made a relatively short time before the arrests were effected.

Part 1C of the Crimes Act 1901 imposes obligations on arresting Police officers as to the treatment of accused persons in Police custody.

23D (1) If a person is under arrest for a serious offence, an investigating official may, at or before the end of the investigation period, apply for an extension of the investigation period.

(b) if it cannot be made at a time when a magistrate is available - a justice of the peace employed in a court of a State or Territory or a bail justice; or

(c) if it cannot be made when any of the foregoing is available - any justice of the peace.

(3) The application may be made before the judicial officer, or in writing, or as prescribed by section 23E, and the person or his or her legal representative may make representations to the judicial officer about the application.

(4) Subject to subsection (5), the judicial officer may extend the investigation period if satisfied that:

(b) further detention of the person is necessary to preserve or obtain evidence or to complete the investigation into the offence or into another serious offence; and

(c) the investigation into the offence is being conducted properly and without delay; and

(d) the person, or his or her legal representative, has been given the opportunity to make representations about the application.

(5) The investigation period may be extended for a period not exceeding 8 hours, and must not be extended more than once.

"serious offence" means a Commonwealth offence that is punishable by imprisonment for a period exceeding 12 months.

23E (1) An application under section 23D for extension of the investigation period may be made by telephone, radio or radio-telephone in accordance with this section.

(2) Before making the application, the investigating official must tell the person under arrest that he or she, or his or her legal representative, may make representations to the judicial officer about the application.

(3) The judicial officer must, if satisfied as required by subsection 23D(4):

(a) complete and sign a written authority to extend the investigation period, recording the following particulars:

(i) the date and time of granting the authority; (ii) the reasons for granting it; (iii) the terms of the extention; and

(b) inform the investigating official of those particulars.

(4) As soon as practicable after receiving the authority, the investigating official must:

(a) complete a form of authority and write on it the name of the judicial officer and the particulars given by the judicial officer, and

(5) If the form of authority completed by the investigating official does not, in all material respects, accord with the terms of the authority signed by the judicial officer, the authority granted by the judicial officer is taken to have had no effect.

(6) In any proceedings, if the authority signed by the judicial officer is not produced in evidence, the burden lies on the prosecution to prove that the authority was granted.

"judicial officer" means the magistrate or justice of the peace, as the case may be, to whom the application is made under section 23D."

Essentially these sections prescribe a time limit upon Police authority to detain an accused person for questioning before they must bring that person before a Magistrate or release them. It has been referred to as "the four hour rule".

Section 23C(8) imposes on the prosecutor the burden of proving that there has been no breach of s23C-E.

Section 23N provides that an accused person has a right to an interpreter and Police must defer questioning until the interpreter is present. The obtaining of an interpreter was essential before the police could proceed with the Record of Interview.

Mr Tan Seng Kiah was informed by Police that they were making arrangements for an interpreter to communicate with him. He was informed on both the 1st and 2nd July 1995 that Police were endeavouring to obtain an interpreter so that they could interview him.

I agree with the submission on behalf of the Crown that, where s23N imposes a statutory obligation on the police to provide an interpreter, there is a corresponding provision in s23C allowing the down time. This merely reflects internal consistency in Part 1C. Investigating officers are not penalised by the erosion of the investigation period while they make arrangements for the attendance of interpreters in accordance with their obligations under s23N. I am satisfied on the facts I have found that the Crown have discharged the onus of proving that there has been no breach of s23C-E of the Crimes Act .

I have heard extensive evidence relevant to the obtaining of the Record of Interview, and had an opportunity to read the transcript of the Record of Interview (Exhibit P1).

I am satisfied the accused answered questions voluntarily ( McDermott v R (1948) 76 CLR 501 ). I do not consider there is a reason in the exercise of my discretion to exclude the Record of Interview on the grounds of unfairness ( Cleland v R [1982] HCA 67; (1982) 151 CLR 1).

For these reasons I ruled that the Record of Interview with Tan Seng Kiah, dated 3 July 1995, was admissible on his trial.