REGINA v. DENG [2001] NSWCCA 153

No. 60055 of 2000 CORAM: HANDLEY, JA. IPP, AJA. GREG JAMES, J.

1 HANDLEY, JA: The court is in a position to give judgment in this matter and I will ask Justice Greg James to give the first judgment. 2 GREG JAMES, J: The appellant was convicted after trial in the District Court of New South Wales at Sydney of two counts of supplying prohibited drugs, namely, heroin, in an amount in each case not less than the commercial quantity. These are offences under s.25(2) of the Drugs Misuse and Trafficking Act 1985, each punishable by a maximum penalty of 20 years of imprisonment. The first charge was one of actual supply; the second of deemed supply by reason of possession of the quantity of heroin in a car. 3 The grounds of appeal argued before us include that the trial judge erred in allowing the evidence of certain conversations between the appellant and police officers at the scene of his arrest and search of a motor-vehicle in which heroin was found. The ground contends that police failed to caution the appellant in a language in which he was reasonably fluent, also that the conversation was prejudicial so that it should have been excluded. 4 At the trial there was a voir dire. On the voir dire the conversation was put in evidence, not only through the evidence of police officers but also by the tender of a video of the conversation which became Exhibit E on that voir dire. 5 We have seen the video today and have had access to the evidence of the police officers concerned in the conversation. 6 On the voir dire the appellant did not give evidence, although he did at the trial. Evidence was, however, given by a former police officer who had known the appellant for some six months in 1996 and who was able to give some evidence concerning the appellant's command of English. There was also evidence from the arresting police officer as to the appellant's command of English at the time of the conversation with him. 7 The trial judge published extensive reasons on the voir dire in which she rejected the contentions made here. Both contentions were essentially based, as counsel for the appellant has conceded before us, on the applicability to what had occurred of s.139 of the Evidence Act 1995. That section provides that, for the purposes of s.138(1)(a):- "… evidence of a statement made or act done by a person during questioning is taken to have been obtained improperly if:- (a) the person was under arrest for the offence at the time; and (b) the question was conducted by an investigating official who was at the time empowered, because of the office that he or she held, to arrest the person; and (c) before starting the questioning the investigating official did not caution the person that the person does not have to say or do anything but that anything the person does say or do may be used in evidence." 8 Section 139(3) reads as follows:- "The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person cannot hear adequately". 9 The submission was made that her Honour fell into error in holding that there had been compliance or sufficient compliance with s.139(3), that in those circumstances s.138 applied, thus the evidence should have been excluded unless the court's discretion to admit it, notwithstanding that it was obtained improperly or in contravention of an Australian law was exercised. It is said the evidence should have been rejected either by that application of s.138 or by reason of the various other provisions of the Evidence Act 1995, the application of which is similarly conceded to turn on the caution point. 10 On the voir dire her Honour made the following findings:- "Taking into account the evidence of Detective O'Connor, but more importantly, taking into account the reasonably extensive conversation in English which I have set out above before any caution was ever administered, I have come to the view that the caution was indeed given in a language in which the accused was able to communicate with reasonable fluency. The caution was not administered in unduly technical terms.... There is nothing in the terms or the nature of the conversation between the accused and the police prior to the caution, and indeed there is nothing in the conversation between the accused and those police officers who speak to him in the basement of the block of flats which gives rise to any doubt on my part that the accused is incapable of speaking readily in the English language, albeit in fairly basic terms." 11 She held that the accused's ability to speak and understand the English language by reason of all the conversation which occurred in the course of the accused's arrest both in relation to the actual supply and deemed supply were relevant. It seemed to her to offend common sense to compartmentalise the conversations and access therefore to the entire exchange. From that she concluded that and held that s.139(3) was satisfied. 12 In addition, she was of the view that applying the relevant criteria as to the admission and exclusion of that evidence, in the event that her earlier conclusion had been wrong she still would have admitted the evidence. 13 Further, she had concluded that there was nothing about what the accused said to the police officers which cast doubt upon the reliability of what he said and that his responses appeared responsive and rational. Nor was there any challenge to the accuracy of the conversation recorded. 14 Later in her judgment she said:- "Nonetheless, it seems to me that the police officers were - and in my view, correctly - operating under the understanding that the accused had comprehended the caution when it was given in relation to the alleged offence of the finding of the heroin in the Nissan vehicle, and that there was no further caution necessary in relation to the finding of the heroin in the Toyota vehicle." 15 It is contended that in so concluding, her Honour fell into error and did so because she applied a wrong test as to the meaning of the words "with reasonable fluency" in the section. She had, for that purpose, examined the Macquarie Dictionary and concluded that, for the purposes of her decision the Macquarie Dictionary definition of "fluency" as "the ability to speak readily" should be applicable to her construction of the phrase "with reasonable fluency". It is contended that that test was in error. 16 Whatever may be the appropriate test necessary for precise definition of the terms in the section, her Honour's findings of fact appear to go to the extent of holding that the accused was able to understand in English the caution the police officers gave him. 17 In my view the section is purposive. It does not operate on an accused's general language ability. It operates on the ability to understand the concept underlying the caution and the function of a caution. The caution is meant to convey to an arrested person that he/she has the right to choose to speak or to remain silent. It is meant to ensure that the person is aware that if he/she speaks, what he/she says may be given in evidence. 18 For my own part, I would conclude that there was an overwhelming case made that this offender did have the relevant understanding communicated to him, particularly when I have regard to what he said and how he acted in the video which has been before us. 19 I see no basis upon which I could conclude that there was such an absence of evidence as would show that even any test of greater stringency would require that her Honour, on her findings of fact with which I do not disagree, should have rejected the contention that the caution was adequately administered. 20 For my part, I would in those circumstances reject that ground of appeal. 21 The further ground that the conversation was prejudicial and equivocal does not seem to have been pressed strongly before us although it is argued in the written submissions. Having regard to the accused's case at the trial, a case which was put by her Honour in the summing-up that the bag containing the heroin was admitted to the police officers by him to be his but which he contended contained rubbish, it would seem to me that her Honour's conclusion in the latter part of her judgment on the voir dire that the admissions should not be excluded on any ground of prejudice was inevitable. 22 Another ground was also asserted and that is that her Honour had erred in excluding additional evidence relevant to be tendered on behalf of the accused. 23 In the transcript appears a truncated reference to what occurred when the matter was raised. The suggestion was put that a witness would be able to give evidence of a similar drug transaction involving the same vehicle and a similar quantity of heroin in similar packaging at a date which was apparently some five weeks later than the date upon which the heroin was found in the vehicle which event supported the second count of which the appellant was convicted. 24 Her Honour applied the test expressed in s.55 of the Evidence Act 1995. She concluded on the information she had that the evidence was inadmissible as lacking any necessary nexus with the facts referable to the offences before the court. 25 Before us counsel was unable to supplement the paucity of the material contained in the transcript or derived from her Honour's judgement as to the matter to which the evidence might go. Nothing was provided to us which might make the material any more specific. The argument that was put was that if one might have had access to the vehicle five weeks later and put heroin of that kind in the vehicle that is a matter which would cast light upon who might have had access to the vehicle other than the accused at the time at which the heroin, the subject of the charge, came into the vehicle. But that was not the accused's defence at trial. His defence was not that someone else put the bag in the vehicle, ie, that it was not his bag. Indeed, in his evidence at the trial in chief when he was asked what the police had said and what he said he referred to the police asking him what the substance in the bag was and he said "rubbish". "Q. Could you have used the words just junk"? A. Yes I can." 26 He was further asked by the police "Is it yours?" and said "yes" but asserted that he was not talking about drugs at that time but the rubbish he said was in the bag. There was, however, albeit contested, evidence that the term "junk" is used to refer to heroin. There was no suggestion of any inappropriateness when her Honour put in the summing-up, the accused's case that he accepted ownership and possession of the bag but not the heroin in it as not a fair and accurate expression of the issues as they were raised at the trial. There was clearly enough at the trial to require examination of the hypothesis that some other person might have somehow caused the heroin to be introduced into the bag but as far as any relevant access to the car was concerned, that was merely a secondary matter and anything concerning access by any of the persons whose identity was suggested as possibly having access to the car on the day of the offence was only relevant to having access to the bag. There was nothing specific to the bag or as to when its contents might have been altered. On such matters, the later incident sought to be given in evidence sheds no light whatsoever. 27 In my view, the evidence does not raise a rational connection or have the capability that it might rationally affect directly or indirectly the assessment of the probability of whether the accused had possession of the heroin. 28 I see no logical connection which would shed light on that issue or advance the proof of that question so as to make the evidence relevant. 29 At most, it might afford something upon which some speculation unrelated to the issues as they were prosecuted at the trial might be raised. 30 In those circumstances, I see no basis on which Her Honour fell into error and I would reject the ground of appeal. 31 I would conclude then that the appeal should be dismissed. 32 HANDLEY, JA: I agree. There are also other grounds which would have supported the ruling of the trial judge that the evidence of an allegedly similar transaction some weeks later was not relevant to the guilt of the accused and was therefore not admissible. 33 I agree that the appeal fails and should be dismissed. 34 IPP, AJA: I agree. I would simply add two brief comments. One as regards the first ground. In my opinion the phrase "reasonable fluency" in s.139(3) of the Evidence Act 1995 means fluency sufficient to enable the person concerned to understand the caution. 35 With regard to the second ground, I consider that the later evidence that was not admitted throws no light on how the heroin in the bag which the appellant admittedly had in his possession and which he admitted was his came to be in the bag. 36 HANDLEY, JA: The order of the court is that the appeal is dismissed. ********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.