R v Trinh [2002] QSC 471

[1] The Crown has presented an indictment before this court charging the applicant with possession of a large quantity of heroin.

[2] At approximately 4.45 am on 13 June 2000, the applicant who had driven from Sydney the previous day, was stopped by police on the Gold Coast Highway at Coolangatta. He was directed to the side of the road by uniformed officers from the Coolangatta Police Station. The vehicle which he was driving and of which he was the sole occupant was searched. A large quantity of pure heroin was found secreted in the vehicle and seized and is the subject of the charge. Upon being intercepted at 4.45 am, the applicant was questioned by police and these conversations were taped. The first interview concluded at 9.51 am. A second interview commenced at 10.25 am at the Coolangatta Police Station and concluded at 11.35 am.

[3] The applicant makes an application pursuant to s 592A of the Criminal Code for a ruling that the two interviews between police officers and the applicant be excluded:

(a) on the basis that they were not voluntarily made as the applicant did not take part in them in the exercise of his own free choice because he did not understand the relevant warnings that had been given by the police officers throughout the morning of 13 June 2000 concerning his right to remain silent;

(b) alternatively, on the basis of the unfairness discretion or the public policy discretion, said to be enlivened by various breaches of the Police Powers and Responsibilities Act 1997 ("the 1997 Act") and the Police Powers and Responsibilities Regulations 1998 ("the 1998 Regulations").

[4] The principles governing the exclusion of statements on the basis that they are not made voluntarily, because they are not made in the exercise of a free choice to speak or to be silent, are well established.[1] Thus in McDermott v The King, it was said:[2]

"If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary."

[5] The prosecution bears the burden of establishing on the balance of probabilities that the statements were made voluntarily.[3] In determining whether the statements and records of interview were made voluntarily, the following matters referred to by Brennan J (as he then was) in Collins v The Queen[4] are to be considered:

"The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer to those circumstances in determining whether a confession is voluntary. The principle, focussing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist, and the circumstances in which the confession is made."

[6] Superimposed upon this framework of exclusion of statements not made voluntarily are, as His Honour remarked, "the principles of fairness and public policy, the application of which may result in the exclusion of a voluntary statement in the exercise of the judicial discretion." The ambit of the fairness discretion is discussed in Van der Meer v R[5] and Cleland v R[6]. In considering the fairness discretion, the question is not whether the police have acted unfairly, but rather whether it would be unfair to the applicant to use his statement against him. The basis for the exercise of the discretion is the protection of an accused against either procedural or substantive unfairness.[7] Unfairness in this sense is concerned with the applicant's right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.[8]

[7] The public policy discretion calls for a balance to be struck between competing public requirements of the public need to bring to conviction those who commit criminal offences and the public interest in the protection of the individual from unlawful and improper treatment.[9] The principles applicable to this discretion have been considered in Cleland v The Queen[10] and R v Swaffield. The factors relevant to the exercise of this discretion are set out in Bunning v Cross.[11]

(a) The issue of whether the applicant was threatened

[8] At the commencement of the hearing, counsel for the applicant indicated that the police witnesses were not required for cross-examination. It was therefore assumed that the evidence of the police witnesses is not in dispute for the purposes of this application. However, during the course of the evidence, the applicant alleged that he had participated in the interviews because he believed that he would "be bashed" if he did not do so. It appears that this belief was based on his allegation that a uniformed police officer pulled him out of his car by his shirt collar and pointed fingers at his face, and that the officer's face was "very fierce". The applicant later identified this officer to be Detective Inspector Thompson who was in fact present as a plain clothes officer. He also made contradictory allegations as to being threatened at the police station.

[9] The applicant's counsel expressly disavowed reliance on the alleged threats as a ground for exclusion of the interviews. Furthermore, relying on R v Clark; ex parte A-G,[12] it was submitted by the Crown (and conceded by the applicant's counsel) that this was not a case where s 10 of the Criminal Law Amendment Act 1894 had any application because the interviews in question were essentially exculpatory. Nevertheless, counsel for the Crown submitted that the matter of the alleged threats and whether the statements were induced by them required determination, given the decisions of R v Walbank[13] and R v Herbert.[14] In addition, it was said that the issue as to whether threats were made required determination, as it was also a matter which went to the applicant's credibility generally.

[10] The evidence given consistently by Detective Inspector Thompson, Detective Senior Sergeant Miers, Detective Senior Constable Rix, Detective Sergeant Durre, Senior Sergeant Hansen and Detective Senior Constable McDonald, who were the plain clothes officers present, and by Constable Edwards, one of the uniformed officers, was that Detective Inspector Thompson assisted the applicant from the car, holding him on the arm between the elbow and shoulder, and there was no threatening conduct by him. Their evidence was that there was no threatening conduct at the roadside or at the police station. I accept that evidence and reject the applicant's evidence that any threat of any nature whether direct or indirect was made to him. Accordingly, even if s 10 of the Criminal Law Amendment Act 1894 applied, there would have been no basis for exclusion of the interviews on the ground of their having been made as a result of any threats made by any officer.

(b) Whether the statements were not voluntary because the applicant did not understand the warnings as to his right to silence

[11] In considering this matter, counsel for the applicant urged that regard be had to the common law as it pertains to statements by persons of different cultural and linguistic backgrounds, and submitted that the common law was not excluded by the 1997 Act which was in force at the relevant time.[15] Reliance was placed on the decision in R v Contenanza[16] and what was said to be an analogous situation where Aboriginal persons were interrogated. In R v Anunga[17] Forster J, with whom Moorhead and Ward JJ agreed, put together general guidelines for the conduct of police officers when interrogating aboriginal persons due to the fact that, "... Aboriginal people often do not understand English very well, and that, even if they do understand the words, they may not understand the concepts which English phrases and sentences express. Even with the use of interpreters this problem is by no means solved."[18] It was recognised by the court that, "... much of what is said applies equally to the interrogation of migrants whether European or Asiatic."[19]

[12] Counsel for the applicant also placed reliance on R v Li,[20] and R v Nguyen,[21] (which concerned an application for exclusion of evidence by a Vietnamese applicant with a not dissimilar background to the present applicant) as cases where the courts have stressed, that notwithstanding the difficulties faced by police seeking to interview persons of different cultural and linguistic backgrounds, it is essential that adequate steps are taken to ensure that such persons understand their legal rights. In R v Li,[22] Coldrey J dealt with the ambit of the concept of voluntariness in the context of a lack of understanding by the interviewee, stating:[23]

"The breadth of the concept of voluntariness is often misunderstood. In my view it extends to and encompasses the situation where answers are given by an accused person who lacks understanding that such questions need not be answered, and, as a result, feels compelled to participate in the interview process. In such circumstances the interview will be non-voluntary. This is so even though the interview itself may be conducted in an ostensibly co-operative fashion."

[13] It was submitted on behalf of the applicant the following factors should be taken into account:

(a) The applicant lacked understanding that the questions asked of him by the police need not be answered;

(b) The circumstances in which the applicant was removed from the vehicle by Inspector Thompson;

(d) The fact that on the morning of 13 August 2000, he was in company with solely Caucasian police for some 8 hours up to the conclusion of the questioning;

(f) In the period from Monday morning through to Tuesday morning he had only a small number of hours sleep;

[14] Reliance was also placed on reg 62 of the 1998 Regulations. It was submitted that there had not been at any stage a proper explanation given by a person fluent in the accused's language as to just what his rights were.

[15] The applicant is Vietnamese by nationality, which appears to have been known to the police prior to his being stopped. The applicant is 46 years of age. In 1982 he left Vietnam and stayed at a refugee camp in the Philippines. At that stage he did not speak English. He received some informal assistance with English studies while in the camp. In 1984 he arrived in Australia, where he started work in a factory. His co-workers were mostly Vietnamese. He did that work for 8 years. He then became self employed and commenced a furniture removal business. The applicant gave conflicting evidence about his clientele, but it appears that it was largely Vietnamese. He has been married for 22 years to a Vietnamese woman and has 4 children, who have received education at English speaking schools and speak fluent English. However, he speaks only Vietnamese at home. The main circle of circle of friends with whom he socialises is Vietnamese. He has had no tuition in English since coming to Australia.

[16] The Crown submitted that upon his being apprehended on the Pacific Highway on 13 June 2000, the applicant was asked by Detective Senior Sergeant Miers if he understood English and he replied "I understand". The Crown submitted that in the ensuing conversations with police officers, the applicant displayed a reasonably sound understanding of the English language, consistent with his having lived in Australia since 1984. The Crown submitted that the applicant was given several warnings and that, in the second interview, Sergeant Pritchard asked the accused to repeat the warning as to his right to be silent, resulting in the applicant responding: "... I don't need to say anything at all". Further, at the conclusion of the interview, the accused confirmed that he took part in the interview because he wanted to. In this regard it is worth noting that the accused denied knowledge of the presence of heroin in the motor vehicle throughout the interviews. It was therefore submitted that there is no basis for the exclusion of the interviews.

[17] The evidence demonstrates that the applicant was able to speak and understand English. Indeed, the applicant conceded in giving his evidence that he had a reasonable understanding of English. However, it is also apparent that the applicant's level of ability was unsophisticated as is shown by his not infrequent requests of the police officers that they speak slowly or repeat or rephrase questions and the manner of his responses. While the applicant was able to answer many questions, it is also clear that it was necessary that they be asked in a very simple fashion in order that the applicant comprehend them.

[18] There are a number of relevant passages in the evidence concerning whether the applicant understood the cautions concerning his right to remain silent. Soon after he was intercepted, the applicant was advised of his rights as follows:

"Police Officer BR: That you were intercepted driving this morning on the Bruce Highway, on the Pacific Highway. Okay. But before I ask you any questions about that, I must warn you again, as I did earlier, that you don't have to answer my questions. Do you know what that means?

Police Officer BR: Okay. If you don't understand just tell me.

Police Officer BR: Okay. If, if you don't want to answer my questions,

Police Officer BR: You don't have to. You understand that?

Police Officer BR: If I ask a question you don't want to answer,

Applicant: Yer if I, know if I can't understand the way you ask me,

Police Officer BR: But I'm telling you, if you don't want to answer, you don't have to answer. Does that make sense?

Police Officer BR: Okay then. And you also have the right to, to have um a solicitor present when you're interviewed. Understand that?

Police Officer BR: Okay. Do you need to have a solicitor present when you're interviewed?

Applicant: I need it, but ah you say too far, too far away, can't come in now, that why I tell you, if I understand, I think I can answer the question, then I answer, if not, I can't, I tell you I can't answer the question.

Police Officer BR: Okay, so you're happy to be interviewed, is that right?

Police Officer BR: Just as long as you understand the questions.

Police Officer GP: You understand you don't have to say anything? You don't have to say anything at all. You understand that?

Applicant: Ah, I, I don't need to say anything at all.

[19] At the beginning of the second interview the matter of the right to remain silent was broached as follows:

"Police Officer R: OK. Should we find anything in the car, you'll be questioned about what's found, ok, do you understand that?

Police Officer R: Just watch me when I'm talking to you ok. Do you understand that if we find something in the car that's unlawful like drugs you'll be asked questions about what we find?

Police Officer R: If I find something like drugs, do you understand that?

Police Officer R: Then I'll ask you a question about it. Do you understand that?

Police Officer R: What don't you understand" If there's something in the car that shouldn't be there, just look at me, then I'm going to ask you a question about it. Does that make sense?

Police Officer R: OK, but I'm still going to ask you a question, does that make sense?

Police Officer R: OK, all right, just look at me still, I haven't finished yet. Before you are asked questions, do you understand that you have the right to silence? Do you understand that?

Police Officer R: Your right to silence, what does that mean?

Police Officer R: You know you don't have to answer any questions?

Police Officer R: If I ask you a question, you don't have to answer, does that make sense? Do you understand that?

Police Officer R: I ask you a question, do you understand that?

Applicant: You ask me a question, if I know, if I understand, I answer.

Police Officer R: So, if I ask you a question, you don't have to answer.

Police Officer R: Yeah, ok, I'm just saying you don't have to all right.

[20] Towards the end of that second interview the matter was again addressed as follows:

"Police Officer R: What do you know about that there? Ok, and before you answer, remember earlier this morning I told you you didn't have to answer any questions if you didn't want to?

Police Officer R: Ok hang on, answer this question first. Remember I told you you didn't have to answer any questions?

Police Officer R: When we first pulled up over on the side of the road. You were told you didn't have to answer questions I you didn't want to. Do you remember me explaining that to you? So if I ask you a question you don't have to answer me.

Police Officer R: Yep, but you don't have to. You can if you want to, but you don't have to. Does that make sense?

Police Officer R: Ok, if you want to give me an answer you can, but if you don't want to answer me you don't have to. If I ask you a question, you can say, "don't want to talk to you about it". Ok.

Police Officer R: Yeah and do you understand, ok, do you understand what we're talking about?

[21] The applicant gave evidence through an interpreter that he did not know that he did not have to answer the questions asked of him by the police. He gave evidence that he believed that if he did not answer the questions he would be "bashed". I have already indicated that I do not accept his evidence that he was treated in any fashion which gave him any cause to believe that he would be harmed if he did not participate in the interviews. He also gave evidence that when asked questions, there were many questions that he did not understand fully and that he would guess the meaning and answer accordingly. Having considered the recorded evidence, it is apparent that the applicant did understand many of the questions asked of him. However, it is also apparent that his level of understanding was quite limited and that he struggled frequently during the interviews to comprehend the questions he was asked. Notwithstanding the adverse finding I make against the applicant as to his evidence of being threatened, and notwithstanding that I reject the view that his level of English was so basic that he was required to guess at all the answers he gave, the recorded evidence and in particular the passages from the interviews set out above cause me to have real concerns that the applicant did not understand that he was entitled to remain silent and not to answer the police officers' questions. Having reviewed the evidence and in particular the passages quoted above, the impression that I have gained is that the applicant believed that he was required to answer the questions and that he was indicating that he would answer such questions as he could understand, that is "if" he understood the question. I am not satisfied that the applicant understood that he was entitled to remain silent and was not required to answer any questions at all.

[22] For example, in the extract appearing at paragraph 19 herein, the applicant was asked to repeat the caution he was given that he did not have to say anything. It seems this was done pursuant to reg 64(3) which provides that a police officer who reasonably suspects the person does not understand the caution may ask the person to explain the meaning of the caution in his own words. Had the applicant actually explained the caution in his own words, my concern may have been allayed. However, what the police officer asked the applicant to do was to "repeat" what he had just said to the applicant, which the applicant did. Upon being asked "you understand that ok" the applicant responded "yer, if I understand". The use of the word "if" in that reply confirms my impression and concerns that the applicant considered he was required to answer questions "if he understood" them. On the view of the evidence that I have taken, I consider that the applicant did not understand the cautions and associated rights explained to him by the police officers and believed that he was required to answer the police questions to the extend that he understood them and was therefore able to.

[23] Counsel for the Crown submits that notwithstanding that conclusion, it is still open to me to find that the statements were made voluntarily in the sense that the applicant made them willingly because he wanted to speak to the police in order to exculpate himself and that he was not pressured in any way to do so. On this basis it is said that the Crown has discharged its onus of showing that the statements were voluntary. This of course would require a consideration of the unfairness and public policy discretions. In making this submission, counsel relied on R v Swaffield (1998) 192 CLR 159 at 202-203 and Dansie v Kelly ex parte Dansie [1981] Qd R 1, which indicate that a failure to provide a caution does not necessarily dictate exclusion and argued by analogy that the fact that a caution which is given is not understood also does not necessarily dictate exclusion.

[24] I do not accept the view that the applicant took part in the interview voluntarily because he wished to do so in order to exculpate himself or so as to put his version forward or otherwise voluntarily assist the police. I consider that he did so because he believed he was obliged to do so, although as I have said I reject his evidence that his belief resulted from any threat or conduct by the police. Accordingly, the Crown has failed to discharge the onus it bears of demonstrating that, on the balance of probabilities, the interviews were voluntary and I rule that the evidence should be excluded.

[25] Notwithstanding the conclusion I have reached on the issue of voluntariness, as a matter of completeness, I add that, even if I had considered the statements had been voluntarily made, they ought to be excluded on a discretionary basis, bearing in mind that the applicant bears the burden, on the balance of probabilities, of proving facts that would justify an exercise of a discretion in his favour.[24]

[26] Counsel for the applicant relied on a number of alleged instances of non compliance with the 1997 Act and 1998 Regulations. One of these concerned the failure to properly comply with the obligations imposed by s 95(1) of the 1997 Act and reg 66(1) which concern the right to communicate with a friend relative or lawyer. Those provisions require that before a police officer starts to question a person in custody, that he be advised that he is entitled to telephone or speak to a friend, relative or lawyer of his choice. It also provides that the police officer will attempt to arrange for the lawyer to be present during the questioning and that the police officer must delay the question for a reasonable time to allow the person in custody to telephone or speak to the relevant person. Counsel also relied on non-compliance with reg 66(2) and reg 66(5) and the decision of R v Adamic[25].

[27] Counsel also relied on the failure to electronically record all conversations of the applicant whilst in custody, given that the recorded evidence makes it clear that there was an unrecorded conversation concerning the applicant's desire to contact his solicitor in Sydney in breach of s 75 of the 1997 Act, reg 103 and reg 104 of the 1998 Regulations.

[28] The following excerpt from the record of interview is relevant:

"Police Officer BR: Okay then. And you also have the right to, to have um a solicitor present when you're interviewed. Understand that?

Police Officer BR: Okay. Do you need to have a solicitor present when you're interviewed?

Applicant: I need it, but ah you say too far, too far away, can't come in now, that why I tell you, if I understand, I think I can answer the question, then I answer, if not, I can't, I tell you I can't answer the question.

Police Officer BR: Okay, so you're happy to be interviewed, is that right?

Police Officer GP: And you mentioned before about the solicitor. Um, prior to the interview you said that um if you wanted to contact a solicitor in Sydney, and that um we said that we, we couldn't delay the interview um that long for wait for to come from Sydney, and then you, then you said that you only wanted the solicitor to use for any subsequent court appearances. Is that, do I understand that correctly? You said no need to have solicitor here for the interview, that you would want him here for ah any court that you have to go to later.

Applicant: Yer because too, too far away. A solicitor can't come here straight away now. Ah that why I, if you, you, you ask, you ask me a question very hard I can't an', an',

Applicant: I can't answer. If you ask me a question, I understand that question,

Police Officer GP: You're, you're happy to proceed on that basis?

[29] The impression which that extract from the evidence creates is that the applicant did desire to have his solicitor contacted and present, but that he understood that because the solicitor was in Sydney and could not attend the interview "straight away", he was unable to have a solicitor present. The effect of what the applicant was told was to dissuade him from obtaining legal advice. He was not told that another solicitor could be arranged and no attempt was made to actually contact the solicitor he had requested. Counsel on behalf of the Crown countered that the evidence given by the applicant was cogent and true and that any breach did not result in unfairness to him. However, cogency is merely one of the factors to consider. I consider that the interview may well have taken a different course had the applicant been able to obtain legal assistance and that when that matter is considered together with the applicant's linguistic difficulties and the other matters raised by counsel for the applicant as going to the unfairness discretion, that the unfairness discretion would require the exclusion of the evidence. In the circumstances it is not necessary for me to also consider the public policy discretion.

[1] McDermott v The King (1948) 76 CLR 501 per Dixon J at 511.

[2] (1948) 76 CLR 501 per Dixon J at 511; see also Foster v The Queen (1993) 67 ALJR 550 at 556.

[3] see Wendo v R [1963] HCA 19; (1963) 109 CLR 559.

[4] [1980] FCA 72; (1980) 31 ALR 257 at 307.

[5] [1988] HCA 56; (1988) 82 ALR 10.

[6] [1982] HCA 67; (1982) 151 CLR 1.

[7] Cleland v R [1982] HCA 67; (1982) 151 CLR 1 per Deane J at 19.

[8] R v Swaffield (1998) 192 CLR 159 at 189.

[9] R v Swaffield (1998) 192 CLR 159 at 176.

[10] [1982] HCA 67; (1982) 151 CLR 1 at 9.

[11] [1978] HCA 22; (1978) 141 CLR 54.

[12] [1999] QCA 43, unreported decision of 22 October 1999.

[13] [1995] QCA 149; [1996] 1 Qd R 78.

[14] CA No 267 of 1998, unreported decision of 15 December 1998.

[16] [1958] TASStRp 3; [1958] Tas SR 3.

[17] [1905] ArgusLawRp 117; (1976) 11 ALR 412.

[18] R v Anunga [1905] ArgusLawRp 117; (1976) 11 ALR 412 at 413, 442.

[19] R v Anunga [1905] ArgusLawRp 117; (1976) 11 ALR 412 at 413, 428.

[20] [1993] VicRp 59; [1993] 2 VR 80.

[21] (1995) 78 A Crim R 582.

[22] (1993) VR 80.

[23] (1993) VR 80 at 87.

[24] Macpherson v R [1981] HCA 46; (1981) 147 CLR 512 per Gibbs CJ and Wilson J at 519-520.

[25] (2000) 117 A Crim R 332.