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[2010] VSC 578
General information, not legal advice.
Supreme Court of Victoria
2010-11-15
T FORREST J
Original judgment source is linked above.
EVIDENCE ACT 2008 (Vic)- Sections 84; S 85; Admissibility of interview - S 90 Whether discretion engaged - S 138 Whether illegalities or impropriety.
1 The body of Van Nguyen was found partially burnt in a rubbish skip at Keysborough in the early hours of 14 September 2008. The accused, Tai Shum Tang, was arrested at his unit in Richmond at 3.10am on Thursday 18 September. He was taken to the Homicide Squad offices at the St Kilda Road complex some time later at about 7.30am. There is very little, if any, dispute about the events between accused's arrest and the commencement of the interview at 8.59am. I shall summarise those events.
2 At 3.10am a number of Homicide investigators, including the informant Senior Detective Gray, executed a search warrant at Unit 3, 97 Elizabeth Street Richmond. The accused who had been asleep, opened the door. Detective Gray, the subsequent informant, pushed the door open after it had been unlocked. It may have contacted the accused's knee. There is dispute as to whether the accused went to ground after police gained access to his flat. It is unnecessary to resolve this as the accused did not suffer any significant physical injury upon his restraint and subsequent arrest by the police. He was handcuffed and his flat was searched. A number of other occupants were interviewed.
3 Using another occupant as an interpreter, Detective Gray sought to advise the accused that he was under arrest for murder. The accused speaks no English. A telephone interpreter was engaged. Through the telephone interpreter the accused identified himself and was informed that:
(a) he was not obliged to say or do anything, but anything he did say or do may be given in evidence ("the right to silence"). The accused stated that he understood this;
(b) he may communicate with or attempt to communicate with a friend or relative to inform that person of his whereabouts and that he may communicate or attempt to communicate with a solicitor. I consider that it is apparent from Detective Gray's statement dealing with this conversation[1] that he had a broad understanding of these rights ("the rights to communicate"). He indicated he wished to contact a solicitor.
4 At 4.55am Detective Gray made an unsuccessful attempt to contact Victorian Legal Aid. The accused was told that a solicitor would be contacted when the accused was taken to the Homicide Squad.
5 At 5.20am the accused's vehicle, a silver Toyota RAV 4, Registration Number RIA 115, was loaded onto a truck and taken into police custody. The search of the accused's premises continued until approximately 7.00am. A number of items were seized. During this time the accused remained secured by handcuffs.
6 The accused was taken to the Homicide Squad and placed in an interview room at approximately 7.30am. The handcuffs were removed. The accused was then filmed from that time onwards. I have viewed the DVD which occupies approximately five hours.
7 After being placed in the interview room, the accused placed his head on the interview table. He, on the face of it, appears tired, and perhaps asleep. Ellen So, an interpreter, entered with Detective Gray at approximately 7.38am. The accused was offered coffee. Through the interpreter the accused was advised again of his rights to silence and to communicate. When asked whether he understood those rights, he nodded. He was asked whether he wished to have a sleep. He was asked whether he wished to ask questions and he shook his head.
8 He appeared to sleep again for approximately nine minutes. Coffee was brought in and four minutes later (at 7.59.33 am) the interpreter and the informant re-entered the room. The interpreter immediately asked "are you awake?".
9 Over the next few minutes a solicitor, Mr Balmer, was contacted by telephone and advised the accused, through the interpreter, in the following terms:[2]
Hi Bernie, my name is Ellen, I'm the Cantonese interpreter. Cantonese...My name? ELLEN, Ellen So, SO. Yep. Yep. Hold on a sec, I'll see whether it's got a speaker phone...no, I don't think I can put it on speaker, so I have to tell him Ok?...because this is a really old mobile phone...
What should I call you? Mr Tang, alright?
The lawyer says his name is Bernie, he's here to help you.
Ok, I have told you who you are.
Today, ...today the police told him they are going to conduct an interview with you regarding the murder of Van Nguyen, alright?
Yep, I just told him.
You have two...the lawyer says you have two options...you have two options.
Ok. He nods his head.
The first option is...whatever they are going to ask you later on, you simply say 'no comment'...don't know....I mean 'no comment', do you know this term? Whatever they are going to ask you, you don't' answer...any questions, ok?
Ok. Yes, you can do this because by law you have the right to keep silence, you don't need to answer their questions. That means whatever they are going to ask you later on, you just have to say 'no comment', this is your right, ok?
He nods his head.
The second option is you can answer their questions. One option is not to answer anything and the other option is to answer, alright?
Two options, one is 'no comment', the other is no answer.
Ok, I told him.
The lawyer says he always advice his clients the best way to deal with it is to say 'no comment', that is not to answer.
He nods his head.
Ok, because you have the right to do so by law, this will not harm you at all.
Do you understand what I'm telling you?
He nods his head.
The lawyer asks if you have any questions for him. Think about it. I promise I will keep it confidential, I won't tell.
He's thinking.
Take your time, take you time.
Are you helping me?
I will. He's your lawyer and he's here to help you. They have gone out, you see? I always stay neutral, I won't say anything.
He nods his head.
So what have you got to ask?
I just asked him if he has any questions, sorry, I did it for you.
So what do you want to ask? He's here to help you.
Firstly, he would like to say thank you.
He's a private lawyer and he's been a lawyer for over 30 years.
He nods his head...Can you hold the line...he's saying something...
He just wants to know if you are an Asian or Australian.
He's an Australian. That's why I'm here. If not, you'd be speaking to him directly, right? I'm here to interpret.
He nods his head.
What have you got to ask?
And then he says he has no more questions. Yep.
He says...later on...after the interview, the police will take some DNA sample from your mouth.
Ok. He nods his head.
Is there any problem?
No problem. Line up for ID? To be identified by people? Ok. Ok.
The police will ask you to line up in a room later on, for people from the other side to identify whether it was you. He says if they ask you to line up, you have to say 'No', you're not going, you're not lining. It's like what you see on the movie when people would line up for others to check you out in front of the glass...the lawyer says if you police ask you for DNA, it's ok...but if it is to be identified, you have to say 'No', alright?
He says, 'Do I have the right to say 'No'?'
You have. Remember. If they ask you to line up and be identified, you have to say 'No'.
He said ok.
The police will get you to do three things. They will take DNA samples from you...let them, ask you to line up to be identified...no, and take your finger prints, ok, let them take your finger prints.
He nods his head.
Make sure you'll remember these three things. What else do you want to ask him?
Tai direct From my mouth?
For your DNA, let them take it, no problem?
He just points DNA in the mouth? I say...if there's a problem...he says 'no'.
If the police later on arrest you...charge...that is to remand you in custody...the lawyer will come and meet you this afternoon.
He says ok.
Although he is a private lawyer, his name is also on the legal aid, if you have...you can apply for legal aid and ask for him to be you representing lawyer, alright?
He nods his head.
Remember, when they ask you questions later on...'no comment', 'no comment'.
...by you or by the police...ok...that's fine. So Bernie...B...ERNIE...Yep, BALM...AR? MER...I write it down on a piece of paper...so...Yep...
This is your lawyer. He wants to know if you really understand what he was talking about, please tell me so he knows. Tell me now.
If I was asked by the police...if they wanted my DNA sample...I will let them...yea...yep...
He said why he suggested to you to let them...it's because even if you didn't want to, they can apply through the court for it anyway, might as well let them, right?
He says 'I'm aware of that'.
If they want you to line up for identification, you say 'no'.
Yep, he says 'yes', line up...he'll say 'no'.
He will tell the police what he's taught and suggested you, but not the exact contents. That is DNA, 'no comment' and 'no' to lining up, alright? If they remand you in custody, the lawyer will come to see you this afternoon, alright?
I also mentioned...I repeated what you said, if he's remanded in custody...you will be seeing him this afternoon...ok...I beg your pardon
He said if he couldn't make it later on, his colleague, a female lawyer, will come to see you... he will send someone to see you or he will anyway.
Ok. He nods his head.Ok.
I will get the...it's his duty to let the police know what he has taught you, alright? I'm telling you now that he has to let the police know...wake up, don't sleep or else you wont' be able to talk later on."
10 Thus the accused was advised of his rights again, this time by a highly experienced solicitor and he was further advised to exercise his right to silence by answering "no comment" to phone questions. Immediately prior to this phone call, the interpreter said this to the accused:
They are getting a lawyer...don't fall asleep...how can you talk if you've fallen asleep, right? It's better for you to start thinking what to say instead. They are getting...stay awake...just some questions...alright?[3]
11 Shortly after the accused spoke to Mr Balmer, the informant spoke to Mr Balmer:
Umm, well that being the case I know I have had people want that advice no comment, I'll just keep continuously reminding that if doesn't heed advice that probably what your advice was with regard to no comment and see how we go. Alright Bernie. I'll give you a call on this same number when the interview is over if you like. Sorry ...[4]
12 From approximately 8.20am to 8.56am the accused appears to sleep intermittently. At 8.24am he appears to be woken by the informant as a prelude to a welfare check by Inspector McLeod-Dryden. He complained of a leg injury and said:
pushed by police...because they opened the door I was pushed - when they pushed the door I was injured by that...
Have police explained what you're here for?
Yes
We will let him - know police will interview him and someone will speak to him later on
Thank you
One thing does he suffer from any mental illness or any problems
No (shakes head).
13 A few minutes later the accused acceded to a request to remove his clothes for forensic analysis and to put on a pair of forensic overalls. Shortly thereafter he left the interview room briefly for a toilet break.
14 Immediately before the interview commenced, Detective Gray said this to the accused:
Sam this is very important this information. I'm going to read through this information again. This will be video recorded and you will get a copy. We'll start and try and ask you some questions and then we'll be finished so stay with us, and awake and concentrate.
Are you ready to start?
Nods head.[5]
15 The interview commenced at 8.59am. At 9.05am the accused was cautioned again. When asked if he understood Mr Balmer's role he said this:
I've been told not to say - I have to be careful when I - when I talk.
16 At question 23, he indicated that he was tired. This did not seem to elicit any response from the police who proceeded on with the interview. The accused answered questions seemingly responsively, and at times offering reasonably sophisticated answers.[6] The interview was suspended at 9.25am for seven minutes. At 9.32am the following exchange occurred:
(INTERPRETER)
He say, 'yes'.
(DETECTIVE SENIOR CONSTABLE GRAY)
You do wish to exercise those rights?
(SUSPECT THROUGH INTERPRETER)
What is 'exercise'?
Going to work.
(DETECTIVE SERGEANT PUCAR)
You ask me - you ask me again address and you mentioned - you asked me about right, and again and again. So confusing.
So you capture me here to - to be interviewed. Is that right?
So what - what - what rights and so many types?
Okay, I don't want to talk, so you can just take me and execute me. So I - because I don't know what's going on, so I don't want to say anything and you can - and you can execute me.
(DETCTIVE SENIOR CONSTABLE GRAY)
Alright.
I was so frightened when - I don't know what's going on. I was so frightened when the policeman came to my house - came to my house and hit me and I was so frightened. So everyone is scared.
(INTERPRETER)
And he said, 'I was at home - at home.'
(DETECTIVE SENIOR CONSTABLE GRAY)
On what days were you at home?
(SUSPECT THROUGH INTERPRETER)
How would I know? I didn't pay much attention to that.
17 Shortly after that the following exchange occurred:
I was - I was referring that, after work.... ....I was at home. Oh, miss - you just - I - I am so confused.
18 The interview proceeded until 10.34am when it was suspended until 11.02am. At the recommencement, the accused was advised of his rights again. He stated that he wished to contact a lawyer. Once again he spoke to Mr Balmer who believes (although he cannot specifically recall) that he offered advice in the same terms as his earlier advice.[7]
19 At 11.49am, the interview again recommenced; again the accused was advised of his rights and again he said that he understood them. Despite the fact that he had just spoken to Mr Balmer, he said this:
"I just want to talk to a lawyer. I did not kill anybody."
It is apparent from Exhibit B, passage 6 that the accused was asking to speak to a lawyer face to face:
Barry 11.52 in the morning.
Interpreter to Tang do you agree the time is 11.52 in the morning? (in Cantonese)
Tang via Interpreter yes
Barry Interview suspended.
Interpreter Interview terminated, eh, eh ... suspended. (in Cantonese)
Barry We're just going to move you next door again.
Interpreter to Tang Sam, now we're going next door. (in Cantonese)
Barry Do you want to speak to the same lawyer?
Interpreter to Tang Do you want to talk to a lawyer, the same lawyer you spoke before? (in Cantonese)
Tang via Interpreter If he could not come, what's the use?
Barry He can't, there won't be a lawyer who will come here in person, they will only want to speak to you on the telephone.
Interpreter to Tang Because the lawyer would not come here in person, he could only talk to you on the phone. (in Cantonese)
Tang via interpreter (inaudible) ... what do you want to talk to me, ... while I am sitting here ...
Barry Just come next door ... if you can't make any ...
Tang via interpreter Now ... you can sit down and you can talk slowly ... until you're satisfied. So ... talking about what? ... You questioned me again and again.
Barry Come next door, Sam
Tang via interpreter You questioned me again and again
Barry Sorry?
Interpreter repeated you questioned me again and again
Barry Yes, that is the process.
Tang via interpreter you said 100 times, the process will be the same.
Barry There will still be some questions we've got.
Tang via Interpreter What you asked, I have answered you all.
Barry Well, we'll, what we can do, Sam, is we have to put some specific information to you. Would you like to hear that?
Interpreter to Tang We have some special information for you to listen in a moment. Don't you want to listen? (in Cantonese)
Tang via Interpreter What special information?
Barry I can't speak to you about it unless we're actually formally interviewing you.
Interpreter to Tang We cannot tell you now, we have to tell when we formally conduct a interview in a moment. (in Cantonese)
Barry/Stephen talking outside the door. (inaudible).....
Barry We'll just keep, continue going, and I will explain what is going on as we go.
Interpreter to Tang Sam, we'll continue ... and we will tell you as we go. (in Cantonese)
(inaudible, background talking)
(door closing and Barry re-entering the room).
Barry Recommencement and tape recorded interview between Det Con Barry Gray and Tai Shum Tang, also known as Sam, of 3/97 Elizabeth Street, Richmond ... End of tape."
20 The interview then recommenced at 11.56am, and proceeded until the tape cut out at about 12.25pm. It recommenced at 12.36pm. The accused was once more advised of his right to silence and said that he understood it. He was not offered to contact a solicitor again, and he refused to participate in an identification parade consistently with the advice earlier offered by Mr Balmer. When asked whether he would volunteer a buccal swab for DNA purposes he said:
"Oh I am - I think its better to have another person because I'm scared you might frame me."
When advised that he would do the swab himself, he consented again consistently with Mr Balmer's earlier advice. He then consented to and gave fingerprint samples. At Q 376 the following exchange occurred:
(INTERPRETER)
What - what is the last bit?
(DETECTIVE SENIOR CONSTABLE GRAY)
Do you understand this?
(SUSPECT THROUGH INTERPRETER)
No, and now you accuse me of murder. I didn't do it and now I've been - I was so sho-, I was so shocked, and now you are accusing me of murder and ask me to - to - ask me if I'm guilty or not. I was so shocked that I was nearly...
21 Mr Johns for the accused submitted that the entirety of the interview ought be excluded. He contended that a combination of circumstances operated to engage:
(a) s 84 of the Evidence Act 2008;
(b) s 85 of the Evidence Act 2008
22 Alternatively, he contended that I ought exclude the entire interview in the exercise of the discretion I have under s 90 and/or s 138 of the Act. I shall deal with these submissions in turn. Before doing so however I ought observe that the prosecution rely on this interview, not because of direct admissions contained within (with one exception) but because of implied admissions said to be made by the accused. Within the interview, he maintained that he had no contact with the deceased after 9.00pm on 13 September, and was not in the Keysborough area near where the body was found early on the morning of 14 September. The prosecution says these answers are lies that amount to implied admissions of guilt. It is common ground that where the word "admissions" is used in s 84 and s 85, it can extend to an implied admission arising from a false exculpatory statement.
Section 84 of the Evidence Act
23 Relevantly, Mr Johns contends that evidence of the accused's admissions is not admissible unless the Court is positively satisfied that the admission and its making was not influenced by oppressive conduct towards the accused.[8] In short compass, Mr Johns argued that the combination of:
(ii) The accused's vulnerability and isolation given his lack of English;
(v) His lack of a full appreciation of his right to silence;
(vii) His interrogators overriding his desire to cease the interview;
(viii) Incorrect propositions being put to him during the interview in Q 341-346;
all operate to amount to oppression within the meaning of s 84.
More correctly, in view of the onus attaching to a consideration of s 84 arguments, the submission is that the Crown have failed to demonstrate that the admissions were not influenced by oppressive conduct demonstrated by the above combination of factors.
24 It is necessary to spell out my conclusions regarding the factors the accused relies upon:
(a) The alleged assault. The accused was not assaulted. He may have sustained a minor injury when the door was pushed open at his flat. He backed away from alleging an assault in his evidence on the voir dire;
(b) The accused's vulnerability and isolation given his lack of English. It is doubtless more difficult to participate in an interview in a foreign language. The accused was supplied with an interpreter which made communication at least possible. Ms So had no concerns that he did not understood what she was saying to him, and this assertion was not seriously challenged;
(c) His tiredness. There is no doubt that the accused appeared tired from the period 7.30am through to about 9.00am. He appeared to fall asleep on several occasions. Both the interpreter and Detective Gray were concerned to wake him when appropriate. Having watched and re-watched the entirety of the time the accused was in the interview room it is my view that his level of tiredness varied depending on the circumstances. As I have said, when he was left alone in the interview room before the commencement of the interview proper, he seemed very tired and I accept that he was. When he was engaged at any length by the interviewing police his level of tiredness seemed to disappear or at least diminish so as to be imperceptible. He stated he was tired at Q 23. I consider that during the interview itself he was reasonably alert and by and large answered questions responsively.
(d) His confusion. I have partially dealt with this under the heading of tiredness. The accused expressed the fact that he was confused on several occasions (Q 88, Q 121 Q 333). I understood his asserted confusion to relate to being repeatedly advised of his rights and asked his name and address as the interview repeatedly stalled and restarted, and also to relate to specific questions and answers which were subsequently re-put to him and answered responsively (Q 121, Q 333). I do not consider that there was any pervasive confusion contaminating the reliability of his answers. I also do not consider that the police tried to take advantage of any asserted confusion.
(e) and (f) His lack of a full appreciation of his right to silence; and his interrogators overriding his desire to cease the interview. I am satisfied that the accused understood that he did not have to answer questions. I am further satisfied he understood the advice of his solicitor to answer "No comment" but for his own reasons elected not to accept that advice. On four occasions in evidence-in-chief and once in cross-examination[9] the accused confirmed that he understood his option not to answer questions. He said that he did not exercise this right, not because he did not understand it, but because he was "frightened" "because they were police".[10]
There is no doubt at A.93 the accused said that he did not wish to say anything and that this statement was made in the broader context of an enquiry as to whether he understood his rights. There is also no doubt the police continued to ask questions over some hours and the accused answered them responsively. This is one of a number of factors the accused relies upon to argue for "oppression." There is no absolute prohibition on police continuing to ask questions in the face to an accused's expressing a desire not to answer some, although it may "afford a ground for considering the exercise of judicial discretion to exclude evidence";[11]
(g) The length of time in custody. The accused was arrested at 3.10am on 14 September 2008. He was conveyed to the Homicide Squad offices at about 7.00am, arriving at about 7.30am.
His formal interview commenced at approximately 9.00am and occupied, with breaks, about four hours. It follows that he had been in police custody for a total of nearly 10 hours before the completion of the four hour record of interview. Against this the police were investigating a most serious offence involving the murder and incineration of a young woman. Complaints as to the length of time in custody are necessarily a question of fact and degree. For my part I do not consider the length of time in custody to be inappropriate given the circumstances and I consider its relevance is largely confined to the issue of tiredness which I have already considered;
(h) Incorrect propositions being put to him during the interview. Late in the interview Detective Gray overstated the police case in questions 341-347. It is unnecessary to set out those questions and answers. They did not lead to any "breakdown and confession" and were, in fact, the last questions of substance asked before the identification parade and DNA questions were asked. In due course I will exclude those questions and answers. I do not consider them relevant to the issue of oppression;
(i) The final refusal of legal advice. I consider there is little in this factor. At 11.52am when the accused requested to speak to a lawyer once more, he had already spoken to Mr Balmer twice, most recently only minutes before. An examination of the transcript indicates that what the accused was in fact seeking was a lawyer to attend in person. I consider that Detective Gray's response, effectively that no lawyer would attend in person, was factually incorrect, and I have reservations about his evidence that he meant only to convey that Mr Balmer would not attend in person. This leads nowhere, however, as Mr Gray's response set out above was misinterpreted to the accused. What was interpreted was to the effect that "the lawyer" would not come "he could only talk to you on the phone", which seems to have been factually correct as it concerned Mr Balmer.
Section 84 conclusions
25 Oppressive conduct as countenanced by s 84 is distinct from the common law concept of oppression overbearing the will of an accused so as to make subsequent admissions involuntary.[12] There can be a combination of factors operating to produce "oppression" and the oppressive conduct is not limited to physical or threatened physical conduct. Intended mental or psychological pressure can amount to oppressive conduct.[13] Causation is critical however. Perceived psychological pressure that is predicament related rather than conduct related cannot by definition be the product of oppressive conduct. It is a response to an individual's predicament only. Whilst the boundaries of "oppressive conduct" are uncertain,[14] I am positively satisfied that the answers given in the record of interview were not influenced by any oppressive conduct on the part of investigating police officers. It will be apparent from what I have said earlier that I consider a number of the factors relied upon by Mr Johns are simply not made out. I consider that in a perfect world, perhaps the investigators would have allowed Mr Tang to sleep for a time prior to being interviewed, perhaps they may have ceased asking questions after Q 91 (set out earlier) and perhaps they could have tried harder to secure the personal attendance of a solicitor at 11.52 a.m.[15] We do not live in a perfect world, however, and the police conduct must be viewed in the light of a fast moving investigation of a very serious offence. I consider that any failings in their interview strategies that have been identified in the clinical courtroom environment are of a relatively minor nature and fall well short of wherever the boundaries of oppressive conduct lie. Further, I consider that the answers given were not influenced by the police conduct, however it is described. I find that the accused knew well his right to silence and his solicitor's advice. He simply elected not to assert that right or follow that advice. He was quite prepared, however, to assert his legal right not to participate in an identification parade in conformity with his solicitor's advice. That, of course, was his choice as well. For these reasons, the defence application to have the interview excluded as inadmissible by invoking s 84 of the Act is rejected.
26 The accused contends that the admissions made in the interview are inadmissible as a result of the operation of s 85(2) of the Act. It is the accused's contention that a s 85 issue is raised on the facts and that the prosecution cannot demonstrate that the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected.
27 In making this submission, the defence point to the same combination of factors that I have considered at paragraphs 24 and 25. The defence also rely on the fact of the accused's limited education. He left school in the equivalent of Year 6 at 12 or 13 years old.[16]
28 Section 85(3)(a) of the Act provides that a court must take into account any relevant condition or characteristic of a person who made the admission including age, personality and education.
29 I also must take into account the nature of the questions asked and the manner in which they were posed.(S 85(3)(b)(i)). It has not been suggested any threat, promise or other inducement was made to the accused.
30 I have reached the view that the prosecution have demonstrated that it is unlikely that the truth of the admissions made was adversely affected by the surrounding circumstances. In particular, I rely on the following:
• I consider the accused understood his rights fully and elected to ignore his solicitor's no comment advice;
• The questions asked were not difficult or complex. By and large they asked the accused to account for his movements;
• The accused's account was not complicated. He did not see the deceased after 9.00pm on 13 September 2008. He did not leave with her some time later that evening and he did not drive his car to the Parkmore Shopping Centre in Keysborough early in the morning of 14 September. At all relevant times he was at home asleep;
• Whilst the police continued to question the accused after he indicated that he wished not to answer any further questions at Q 91 of the interview, I do not consider there was any material change in the nature or manner of questioning thereafter. I did not discern any evidence of condescension, sarcasm, belittlement or other cross-examinatory techniques. The questioning was persistent and the accused whilst aware of his rights, and prepared to exercise some of them,[17] elected freely, in my view, to answer questions responsively rather than by "no comment";
31 Before leaving this issue I ought say that there is some dispute as to whether the test imposed by s 85(2) is subjective or objective.[18] A subjective approach would focus on the actual reliability of the admissions; an objective approach would focus on the objective likelihood that the surrounding circumstances (including the investigator's conduct) would have affected the reliability of the answer. There are obvious limitations with the subjective approach where the prosecution seek to rely on the unreliability of an answer as an implied admission of "guilt".[19]
32 For my part I can see nothing in the surrounding circumstances that would lead to the conclusion that those circumstances may have affected the reliability of the answer. Put more accurately, I consider the prosecution have demonstrated that the circumstances in which the "admissions" were made were such as to make it unlikely that the truth of those admissions was adversely affected. It follows that I reject this argument.
33 The accused further contends that the police interview ought to be excluded in the exercise of the discretion granted to me by s 90 of the Act. This section reflects the common law rule that a trial judge has a discretion to exclude evidence of an admission if, having regard to the conduct of the police in obtaining it and all the circumstances of the case, it would be unfair to admit the evidence against the defendant. The onus rests with the accused to demonstrate such unfairness.
34 Again, the accused points to the combination of factors referred to in paragraphs 21 and 24. In particular, the accused points to:
• Persisting with questioning against the accused's wishes and in light of knowledge of his "no comment" advice;
• Improper questions due to incorrect factual premise;
• The accused's vulnerability due to tiredness, isolation, difficulties with the interpreter and his "lack of a full appreciation of his right to silence".
35 The s 90 discretion was considered by the New South Wales Court of Criminal Appeal in Pavitt,[20] albeit in the context of covertly recorded conversations and the erosion of an accused's freedom to choose to speak to police. It relied upon the judgment of R v Swaffield; Pavic v R.[21] At paragraph [19] Brennan CJ borrowed from his earlier judgment in Duke v R:[22]
The unfairness against which the exercise of the discretion is intended to protect an accused may arise not only because the conduct of the preceding investigation has produced a confession which is unreliable but because no confession might have been made if the investigation had been properly conducted.
36 In Pavic the majority cited with approval an often quoted passage from Van Der Meer v The Queen,[23] and concluded that unfairness relates "to the right of an accused to a fair trial...".[24] Whilst unreliability "may be a touchstone to unfairness", it is not the sole touchstone. "It may be, for instance that no confession might have been made at all had the police investigation been properly conducted."[25]
37 For reasons that I have already expressed, I do not consider that the interview phase of the investigation in the instant case was improperly conducted. Up until Q 93 the only admission made of any substance was to the effect that the accused was pretty much the only person to drive his Toyota RAV 4. (Q 49FF). As I have observed at Q 93, the accused twice expressed a desire not to talk further. The police continued to put questions which he answered responsively. I can find no authority for the proposition that police are precluded from putting questions after an accused expressed a desire to speak no further. As I have remarked earlier, the putting of further questions provides only a ground "for considering the exercise of a judicial discretion to exclude such evidence".[26]
38 It is clear that the accused received "no comment" advice. As I have stated, I am satisfied that he fully understood his right to silence and the "no comment" advice he had received. I am also satisfied that he made the election to ignore his solicitor's advice and answer investigators questions. Whilst he maintained in evidence that he did so out of fear of police, this explanation is inconsistent with this refusal to participate in the identification parade and his initial refusal to provide a buccal swab until it was made clear that he would take the swab himself. It is also inconsistent with his repeated exercising of his rights to speak to a solicitor.
39 As I have observed, whilst I accept that the accused was tired when the interview commenced, after viewing the DVD I do not consider that he was so tired as to render him incapable of responding to the questions asked. His level of alertness increased as the interview commenced and his general response to the questions put was not a complicated one.
40 Detective Gray undoubtedly undertook to Mr Balmer that he would remind the accused of Mr Balmer's "no comment" advice from time to time, and it is apparent that he did not do so; Detective Gray of course is under no legal obligation to do so - his obligation ceases at the point of advising the accused of his right to silence and does not extend to advising the accused how to exercise it. I have little doubt that Detective Gray intended only to undertake to advise the accused of his right to silence from time to time but nevertheless it is a fact that he undertook more than this. I do not believe his failure to do so operated to cause any significant unfairness to the accused. Detective Gray advised the accused of his rights on several occasions before the interview and during it, and as I have stated, I accept that the accused fully understood this right to silence and Mr Balmer's advice, but elected not to follow that advice.
41 For these reasons I do not believe that the conduct of the interview was unfair; I do not believe the accused was too tired to responsively participate and I do not believe that his right to silence was eroded in any meaningful way.
Breach of s 464C Crimes Act 1958
Section 138 Evidence Act
42 The accused contends that at 11.56am he was refused further access to a solicitor in the way that I have set out at paragraph 19. The accused contends that this asserted failure engages the discretion that I have under s 138 of the Act to exclude evidence improperly or illegally obtained. A breach of s 464C(1) Crimes Act 1958 is said to have occurred. In assessing whether it is "desirable" or "undesirable" to admit the evidence (pursuant to s 138(1)) I am to take into account, inter alia, the probative value of the evidence sought to be excluded, the nature of the relevant offence and the gravity of the impropriety or contravention.
43 The short answer to this submission is that I do not consider there has been any breach of s 464C(i) which affords an accused the right to communicate or attempt to with a legal practitioner "before any questioning or investigation under section 464A(2) commences...". This clearly occurred. As I observed earlier in these reasons, the accused was afforded multiple opportunities to contact a legal practitioner and, in fact did so twice; the second occasion only minutes before 11.56am.
44 If there were any impropriety at all at 11.56am or shortly thereafter, it was in Detective Gray's bold assertion that no solicitor would come to the Homicide Squad for an in-person attendance upon the accused. As I observed earlier, this was misinterpreted to the accused at any event, and by 11.56am the interview was all but over. Thereafter the accused confirmed what was taken during the search of his premises (Qs 301-330) and reaffirmed his earlier answer that he was at home on early Sunday morning (Qs 330-337).
45 This crime alleged is grave. The interview is an important part of the prosecution case, and if there is any impropriety at all, I regard it as relatively minor.
46 I am satisfied that the desirability of admitting the evidence comfortably outweighs the undesirability of admitting it. Accordingly I reject this argument.
47 As I have indicated at paragraph 25(h), I propose to exclude Questions and Answers 341, 342, 343, 344, 345, 346 and 347.
48 I also propose to exclude all questions and answers that relate to the accused exercising his right not to participate in a line up. These are from Qs 348-365. I do not understand that I have been asked to exclude questions and answers relating to the DNA swabbing and consent for the taking of fingerprints (Qs 367-375). I will consider this if requested. I consider Questions and Answers Q 376 to 380 to be admissible.
[1] See Statement of Detective Senior Constable Gray p 55ff depositions.
[2] See Annexure to Exhibit C. The bold emphasis passages are Interpreter to Tang. The fainter emphasis passages are Interpreter to Balmer.
[5] A full record of the conversations in the interview room from 7.30am onwards can be found in the combination of Exhibit A, Exhibit C (annexure), depositions pp 68-134 and Exhibit B.
[6] See for example the answer to Question 71.
[8] Mr Johns did not argue that the conduct was violent, inhuman or degrading.
[11] R v Ireland (1970) 126 CLR 34 at 333 per Barwick CJ (McTiernan, Windeyer, Owen and Walsh JJ agreeing).
[12] Higgins v The Queen [2007] NSWCCA 56 at [26].
[14] R v Ul -Haque [2007] NSWSC 1251; [2007] 177 A Crim R 348.
[15] See also my further comments about this at para 44.
[17] The accused exercised his right to speak to a solicitor twice and also exercised his right not to participate in an identification parade.
[18] Uniform Evidence Law, 8th Edition, Stephen Odgers para 1.3.5220 for a useful discussion of the two approaches.
[19] See for example R v Esposito (1998) 105 A Crim R 27 at [44].
[20] (2007) 169 A Crim R at [70] per McColl JA and Latham J.
[22] (1989) CLR 508 at 513.
[23] R v Swaffield; Pavic v R ibid at 189.
[24] R v Swaffield; Pavic v R ibid at 189.
[25] R v Swaffield; Pavic v R ibid at 189.
[26] R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 333.
R
Tang [2010] VSC 578
(1970) 126 CLR 34
(1970) 126 CLR 321