REGINA v QUACH

• 42 -IN THE COURT OF CRIMINAL APPEAL 60311/02

SPIGELMAN CJ SULLY J JAMES J

Friday 20 December 2002 REGINA v Tan Gia QUACH Judgment 1 SPIGELMAN CJ: I have had the benefit of reading the judgment of Sully J in draft. I agree generally with his Honour's reasons but wish to add some observations on the admissibility of the intercepted telephone calls. The submissions in this respect were expressed in terms of "tendency reasoning", invoking s97 of the Evidence Act 1995. A parallel submission could perhaps have been based on "coincidence", invoking s98. Nothing turns on the distinction and I will focus on s97 as the submissions did. 2 The Appellant's submissions proceeded on the basis that the intercepts were only admissible as "contextual background" to prove an association between the Appellant and Phuong Tan Le. It was submitted to this Court, but not to the trial judge, that for that purpose parts of the conversations could have been admitted without any reference to drugs. A distinction was suggested between the use of the tapes to establish the fact and frequency of conversations between Le and the Respondent, the relevance of which was conceded, and the content of the conversations. 3 The trial judge was not invited to undertake any such task of editing. Nor were the individual conversations analysed separately with a view to a separate decision being made on each of them for any purpose including, for example, the separate application to each of s135 or s137 of the Evidence Act 1995. Experienced counsel objected to the entirety of the tapes, including the evidence of voice identification. 4 The more refined analysis suggested, but not developed, in submissions to this Court was never attempted below. In any event, there are parts of the content of the conversations which are pertinent to the identification of the speakers, e.g. the name "Phuong" is used a number of times and on one occasion a phone number traceable to the Appellant is read out. 5 I am of the opinion that his Honour was correct. The critical part of his Honour's reasons for decision on the admissibility of the tapes was as follows: "In this case the Crown must prove the supply of heroin. That is the ultimate issue. I am satisfied that the evidence in the tapes is relevant to that issue. There is evidence capable of identifying references to the drug heroin and there is evidence on the tapes which shows a nexus with the events of 2 May 2000." 6 The events of 2 May 2000 culminated, of course, in the act of supply which had to be established to prove the charges before the Court. His Honour did not make a finding that the relevance of the documents was restricted to establishing a "relationship". The nature of the "nexus" which his Honour found to exist with the events of the relevant day was not further elaborated. 7 The use of the terminology "relationship evidence", of obvious utility in the context of sex crimes, is not always helpful. As Gleeson CJ said in R v Frawley (1993) 69 A Crim R 208 at 220, with respect to the facts there under consideration: "One of the difficulties affecting consideration of relationship evidence is that the concept of relationship is vague. In a particular case, such as the present, it may be necessary to identify with more precision what is in question … In this case I find it preferable to avoid the label 'relationship evidence' and seek to describe more accurately and more particularly the subject matter." 8 In this case also, the issue is to be determined by an analysis of relevance, rather than by characterisation of the evidence globally as "relationship evidence" or "contextual background". 9 In Gipp v The Queen (1998)194 CLR 106 at 182, Callinan J said: "I would, with respect, therefore reject the notion that there is a special category of background evidence that may be adduced by the prosecution in a criminal case (absent, that is, any forensic conduct by the defence that may make it admissible). If such evidence is to be received it must owe its admissibility to some, quite specific, other purpose, including for example, in an appropriate case, proof of a guilty passion, intention, or propensity, or opportunity, or motive. There may also be cases in which a relationship between people may be directly relevant to an issue in a trial and in those circumstances admissible as such." 10 A "specific purpose" of this character is apparent in the present proceedings. 11 The "events of 2 May 2000", to which his Honour referred, were the primary elements of the circumstantial case which the Crown put forward to establish that a supply of heroin occurred on that day. The circumstantial case for the Crown was a strong one and included the following factors:

· Eleven intercepted phone calls in the two weeks preceding the transaction between the Appellant and Le. · Call charge records showing two phone calls from Le's phone to the Appellant's phone made minutes before Le left St Albans in Victoria on Monday 1 May 2000. · Call charge record showing a phone call made from Le's phone to the Appellant's phone about eight minutes before Le's car arrived at McDonalds on Parramatta Road at Camperdown/Stanmore. · Surveillance both electronic and visual of the car as it drove from McDonalds to William Street, Leichhardt. · Call charge record showing a phone call made from Le's phone to the Appellant's phone about thirty seconds before Le's car was in the vicinity of the Appellant's house. · Visual surveillance of Le's car on William Street near to a lane running behind the Appellant's house situated in James Street, off William Street. · Electronic surveillance (tracking device on Le's car) showing that it was stationary between 4.07 and 4.19am positioned in the vicinity of the Appellant's residence. · Visual surveillance of Le's car leaving William Street and travelling south, out of Sydney. · Search of Le's car revealing 5.95 kilograms of heroin inside the rear left passenger door worth about $726,000 to $770,000. · Location of a piece of paper in the Appellant's handwriting in the Appellant's house, when searched around 10.30am on the morning of 2 May 2000, on which the Appellant had written "Phuong $748,000". · Location of a large amount of cash, namely $780,720 in the Appellant's house corresponding approximately with the value of the heroin seized from Le, much of the money being in new notes. · The Appellant's claim that the money was the proceeds of savings over the years was inconsistent with tax records of his employment and businesses. · $55,000 of the cash was wrapped in Melbourne Crown Casino wrappers dated 7 April 2000 to 1 May 2000. · Call records and admissions established the Appellant was in Sydney, not Melbourne, on 1 May 2000. · Surveillance of Le acquiring cash at the Melbourne Crown Casino on 29 April and 30 April 2000. · A search of the Appellant's garage accessible from the back lane was found to be big enough for two vehicles. 12 The central issue in the case was whether an act of supply had occurred on 2 May at the Appellant's residence. The Crown case was circumstantial. The case was based in part on the fact that Le had driven from Melbourne to the immediate vicinity of the Appellant's residence in Sydney. It was obviously important for the Crown to establish that it was overwhelmingly probable that Le had entered the Appellant's house. The fact that they knew each other, and the extent and nature of their association, was a matter which was relevant to this issue and, therefore, to the issue of supply. 13 In my opinion, his Honour was correct in his conclusion that the evidence on the tapes did go to the issue of supply of heroin. The fact that the two individuals had numerous conversations with each other over the weeks immediately preceding the occasion of the alleged supply is relevant to whether or not Le called at the residence on that date. However, the content of such conversations may also be relevant to whether or not the event occurred. 14 The frequency and nature of the contacts by telephone were of direct relevance. Admissions as to participation in other drug dealings were plainly prejudicial. Nevertheless they constituted an appropriate addition to the Crown circumstantial case. 15 Admissibility can be justified on two bases. First, a narrow basis that the evidence of the conversation of 29 April was admissible as possibly referring to a drug supply to occur within a few days and earlier conversations establishing the true nature and content of that conversation. Alternatively, the earlier conversations were admissible on a broader basis identified in Harriman v The Queen (1989) 167 CLR 590, that the prior relationship of other drug dealings was such that no innocent explanation of Le's trip from Melbourne to the vicinity of the Appellant's residence was open. 16 The content of the last conversation is capable of being understood, with an explanation of the argot of the drug trade, as referring to a future supply. That conversation was as follows: "PH: PHONG (LE TAN PHONG) G: GIA (QUACH TAN GIA aka NAM) G Hello, PH Is that you? And my wife where is she? I couldn't call her and didn't see her coming down either. G Oh, don't you know? Just ate in the morning with my wife and I though. PH You mean this morning? G Yeah, yeah PH Could you… could you … I couldn't get through to her number and could you phone her for me and tell her to call me, please. G Yes, what's wrong, anything serious? PH Just that I got some papers ad I tell her to come down now to 'ay' with me, got … got … three 'dong' though … papers. G Ah … oh … Is that so? … oh. PH Yesterday when you've just left and I then got three 'dong', so fuckin' bad luck. G Should have fuckin' left it a bit later yesterday eh? PH How can you tell? You know what I mean? G Yeah, so how many 'dong' are left? - PH Three 'dong' left. G No, now that how many … PH (overtalking) Three 'dong' like that. G of the other thing are left. PH The other thing, three remains, three. G Three, big or small? PH Big. G Big eh? Yeah. PH Yesterday afternoon my friend just returned and borrowed three. G Oh, yeah, yeah, so when … about to have a meal? PH Here, that's what I call my wife down for! G Yeah, but how come I heard that she doesn't do anymore? PH Oh don't you listen to this woman. G That's why fuckin' she was saying in the car, … PH Just forget about her, don't listen to her. G I know, but I want to know, so I'd leave stuff for you … do you understand? PH (overtalking) I do, I do, whichever, whichever the case I have to tell you first but. G Yeah, because all of a sudden she said like that in the car but don't tell her I told you alright? And she would get back at me, and I said how come, PHONG had told me like that and now you say differently. PH Mm G She … she said … whatever she said … I don't even know … PH No, don't worry, this woman changes her mind just like that. Now could you please … please call her to tell her to call me. G Yeah, yeah okay bye." 17 As explained by Detective Nguyen, who had experience as a translator and investigator with the Drug Crimes Unit, elements of this conversation are capable of constituting an announcement by Le that he had in his possession an identified quantity of money ("I got some papers" and "I then got three dong") and by the Appellant that he had possession of heroin ("So I'd leave stuff for you"). It was open to the jury to conclude that this conversation - especially "I'd leave stuff for you" - was a reference to a transaction that had not yet occurred. On that basis the conversation was capable of constituting a preparatory step for the events of 2 May. 18 The conversation of 29 April, like the other conversations on the tapes, is virtually incomprehensible. It could, at least theoretically, be explained on the basis that the parties to the conversation spoke in a form of shorthand derived from considerable familiarity with each other. The contents of the earlier conversations do counteract any such conclusion. Furthermore, some of the code words used on 29 April - "stuff" as heroin and "dong" as a quantity - had appeared in earlier conversations. 19 The earlier conversations are, accordingly, relevant to a proper understanding of the conversation of 29 April. The fact that these two individuals had regular conversations of an incomprehensible character and in code, with the use of terminology, identified by a person able to give opinion evidence, which reflected the argot of the drug trade, does significantly reinforce the inference that the conversation of 29 April was in code and that that code was identifiably associated with dealings with drugs. (See R v Chan [2002] NSWCCA 217 at [47].) 20 The evidence of Detective Nguyen was essentially in a narrow compass, although it does appear that he was permitted to stray beyond his area of expertise on occasions and was permitted to adopt an advocacy stance. He accepted in cross-examination that there was no express reference to 2 May in any conversation. He also accepted that the references were to past transactions. His evidence was directed to explaining what might otherwise be incomprehensible. His particular interpretation, of course, did not have to be accepted by the jury. His evidence did not, in any event, delineate the permissible use of the taped conversations as part of the Crown's circumstantial case. 21 It appears that the Crown did submit that a number of the earlier conversations were in some way linked to a large future delivery. His Honour referred to the Crown's submissions in this way in his judgment rejecting the application for an acquittal by direction and in his summing-up. It is difficult to see how this submission could be sustained from a perusal of the transcripts, even as explained by Detective Nguyen. However, that was a matter for the jury. 22 The alternative basis for the admissibility of the taped conversations is the High Court's decision in Harriman. That was not a case under the Evidence Act 1995, but it did involve the admissibility of evidence of prior drug dealings. Mr P Byrne SC who appeared for the Appellant with Mr A Bellanto QC submitted that the case of Harriman was distinguishable on the basis that it involved the admission of evidence for what would now be described as a "tendency" purpose. It was submitted that the judgments in Harriman employed tendency reasoning. 23 In Harriman the accused and his co-offender, Martin, had travelled to Thailand together. The co-offender had then travelled abroad and posted heroin to various addresses in Australia. Evidence was admitted of prior involvement between Harriman and Martin in the sale of heroin. 24 In my opinion the Appellant's submissions in this respect should be rejected. The reasoning in Harriman is consistent with the admissibility of evidence of prior heroin dealings on a basis other than tendency reasoning. In Harriman, it was admitted that there was in fact a meeting between Harriman and his co-offender Martin and the issue was to determine the events that occurred at that meeting. The same is true in this case, albeit the fact of the meeting is not admitted. 25 Brennan J identified the principle he would apply at 594 in a way which clearly distinguished between tendency reasoning and other uses: "However, where evidence does show more than the mere commission of another offence or predisposition to commit an offence and is otherwise probative of the offence charged or of a fact in issue, there is no rule of evidence which compels its exclusion. If, as a matter of human experience, the evidence tends to establish the offence charged or a fact in issue otherwise than by showing merely the commission of another offence or a propensity to commit an offence , the evidence is admissible. I would therefore respectfully agree with McHugh J that evidence of events which are part of the res gestae is admissible - and will usually be admitted - even if that evidence reveals the commission of an offence other than the offence charged." [Emphasis added] 26 With respect to the particular aspects of drug dealing in issue in the proceedings, his Honour concluded at 595-6: "Evidence of prior involvement by Harriman and Martin in the sale of heroin in association, evidence (from the witness Lisk) of prior sales of heroin by Harriman and evidence of Harriman's use of heroin were clearly prejudicial and were not admissible unless something more than the commission of prior offences was thereby revealed . In my opinion, more was revealed . The concatenation of these pieces of evidence showed that Harriman, prior to April 1987, had participated repeatedly in one role or another in heroin dealing in Western Australia. He had participated in a trade notorious for its clandestine organization, the creation of distribution networks of dealer-users, the payment of large sums of money enforced (if need be) by vicious measures, and the urgent demand by addicts for sources of supply. A person who is shown to have participated to a substantial degree in that trade - I am not speaking of mere use or of an isolated sale - is likely to have incentives to continue his participation in the trade and, because of the nature of the trade, is more likely to have done so than one who has not been a substantial participant. Evidence of substantial participation in the heroin trade can support an inference of continued participation although, of course, each case depends on its own facts. In determining whether or not evidence of participation can support such an inference regard must be had to the extent and duration of past participation, the proximity in time between the past participation and the offence charged and the whole of the circumstances of the case. In this case, the extent of Harriman's participation was such that, in the absence of anything to suggest that the participation by Harriman and Martin in the sale of heroin in Western Australia had been discontinued, the guilty inference might properly have been drawn. Evidence of Harriman's participation in the heroin trade not only strengthened the Crown's allegation of motive; it tended to make it more likely that Harriman's relevant contacts with Martin - providing Martin with his (Harriman's) address in Bangkok and arranging to meet there, the visit to Chiang Mai, the furnishing of addresses in Western Australia - were for a guilty rather than an innocent purpose : see Plomp v The Queen (1963) 110 CLR 234. That evidence was highly probative of the offences charged. It was admissible, whether or not Harriman had raised in cross-examination the 'defence' that Martin was acting alone. There was no ground for excluding it in the exercise of a discretion." [Emphasis added] 27 So in this case it can be concluded that the evidence of the contact between the Appellant and Le occasioned by Le driving from Melbourne to the immediate vicinity of the Appellant's house could be said to be, to use Brennan J's phrase, "for a guilty rather than an innocent purpose". 28 The issue is whether the use to which Brennan J held that prior drug dealings could be put is within the distinct formulation of the "tendency rule" in s97, a rule which is derived from, but is not necessarily co-extensive with, the common law (Papakosmos v The Queen (1999) 196 CLR 297) 29 Are the prior drug dealings "conduct" admissible "to prove" that the Appellant "had a tendency" to, relevantly, engage in the supply of heroin? The crucial words are "to prove". 30 As s95 makes clear, evidence may be admitted if it is relevant for another purpose without passing the special test of the balance between probative value and prejudicial effects. Sections 97 and 98 identify distinct kinds of evidence and, apply to them a higher order of test, namely significant probative value. In criminal cases where such evidence is sought to be adduced by the prosecution, s101(2) imposes a more stringent requirement for the balancing exercise, i.e. requiring the probative value to "substantially outweigh" any prejudicial effect. The lower order tests in s135 and s137 of the Act do, however, apply to evidence admitted for a purpose other than a tendency or coincidence purpose. 31 Although the word "tendency" is not defined, the significance of the words "to prove" is emphasised by the definition of "tendency evidence", which is the relevant formulation in s101. Those words are defined to mean "tendency evidence means evidence of a kind referred to in subsection 97(1) that a party seeks to have adduced for the purpose referred to in that subsection" [Emphasis added]. ("Coincidence evidence" is defined in, relevantly, the same way.) 32 The focus is on the purpose of the tender. Section 97 is irrelevant where evidence is admitted for a purpose other than to show tendency. (See R v AH (1997) 42 NSWLR 702 at 708.) 33 Brennan J's reasoning uses the language of the common law in distinguishing "predisposition" from evidence "otherwise probative" of the offence. The same kind of distinction exists under the Evidence Act 1995 between evidence "to prove … a tendency" and evidence "to prove", relevantly, whether Le entered the Respondent's house and/or the character of the transaction that occurred on that occasion. 34 Toohey J also regarded the evidence in Harriman as relevant on a basis other than propensity. His Honour said at 609: "… it was part of the Crown case that the two men acted in concert and the defence case that they did not. Evidence of a transaction, shortly before, involving the sale of heroin to Gawthorpe and in which the two men had been concerned was relevant to the likelihood of the applicant having acted in concert with Martin when the two men were in Thailand together and when one of them (Martin) had obtained heroin, taken it to London and then sent it to Western Australia. Now it is true that such evidence was also likely to demonstrate a propensity on the part of the applicant to engage in heroin trafficking. But the evidence went beyond that . It was relevant to the character of the association between the applicant and Martin and was admissible for that reason, though, questions of prejudice aside, possible misuse of the evidence by the jury required that its purpose be explained with some care to them … It was the relevance of the evidence to the likelihood that the two men acted in concert in Thailand that made it admissible. There was some prejudice in the notion that the applicant was likely to have been involved with Martin in the importation of heroin because the two had been involved in the sale of heroin a short time earlier. However, it is hard to see any proper basis on which the evidence should have been excluded. Its probative force was strong and clearly outweighed its prejudicial effect when the defence was that Martin was acting independently of the applicant." [Emphasis added] 35 In this case, the prior drug dealings were, to use Toohey J's phrase "relevant to the character of the association" between Le and the Appellant. That association is relevant to determining both the probability of and/or the nature of a meeting on 2 May. It was not admitted "to prove" that the Appellant had a tendency to engage in the supply of heroin. 36 Gaudron J posed the matter in a similar way at 613: "Evidence which shows no more than the propensity of an accused to engage in criminal conduct of a particular kind or that the accused is the sort of person likely to commit the offence charged is not admissible to prove that he committed the offence charged … However, evidence which has a high probative value and raises as a matter of common sense and experience , the improbability of the offence charged having been committed other than as claimed by the prosecution is admissible in a criminal trial, notwithstanding that it discloses prior criminal conduct or propensity to commit the offence." [Emphasis added] 37 Her Honour said at 613-614: "It was open to the prosecution to negate the possibility that Martin had acted independently of the applicant by evidence which, as a matter of common sense and experience , rendered that improbable . Evidence to that effect, if it disclosed prior criminal activity on the part of the accused, would only be admissible if of high probative value." [Emphasis added] 38 Her Honour concluded at 614-615: "The undisputed evidence that Martin and the applicant were business associates and had travelled together to Chiang Mai gave rise to an inference that the journey had been undertaken for a common purpose. The applicant said the purpose was solely recreational; Martin said it was to obtain the heroin later posted by him to Australia. The evidence that the applicant had supplied heroin in Western Australia to the witness, Gareth David Lisk, that he had on one occasion collected $20,000 as payment for heroin supplied by Martin to the witness Gawthorpe, and that he had paid money to Gawthorpe for delivering heroin from Martin to Lisk, when taken in conjunction with the other evidence in the case (but leaving aside Martin's evidence as to the obtaining of the heroin and the applicant's involvement in that venture), allowed for the admeasuring of the probability that the purpose was as identified by Martin and the improbability of the purpose ascribed by the applicant. And on those issues, if accepted by the jury, it had a high level of probative value. When taken with the other evidence in the case (again leaving aside the evidence of Martin as to the obtaining of the heroin and the applicant's involvement in that venture), as a matter of common sense and experience, it pointed inextricably to the long and uncomfortable overnight journey to Chiang Mai having been jointly undertaken for the purpose identified by Martin. The evidence of the applicant's dealings in heroin in Western Australia was properly admitted notwithstanding that it revealed past criminal activities on his part." [Emphasis added] 39 Similarly in this case, "as a matter of common sense and experience", to use Gaudron J's phrase, the prior drug dealings raise the improbability that there was no meeting and/or no meeting relating to drugs, on 2 May. The evidence was not admitted "to prove" a "tendency". 40 McHugh J said at 627: "Upon the trial of a criminal charge, evidence proving that the accused had been guilty of other criminal acts is not admissible if it does no more than prove that the accused has a general criminal disposition which makes it likely that he committed the offence with which he is charged." [Emphasis added]

The reference to "does no more than" in this passage is consistent with the structure of the Evidence Act to which I have referred . 41 His Honour went on to identify a number of different bases on which evidence which involves other criminal conduct may be made admissible. (See also KRM v The Queen (2001) 206 CLR 221 at [20]-[31].) In the context which is presently relevant, his Honour identified circumstantial evidence which discloses other criminal conduct as being subject to the rule which requires its probative force to exceed its prejudicial effect (at 633). On the facts of the case his Honour concluded, at 634: "… any evidence which tended to prove that Martin and the applicant were jointly involved in the sale of heroin in Western Australia and obtained their supply from overseas was admissible as circumstantial evidence which tended to prove that in April 1987 Martin and the applicant journeyed to Chiang Mai for the purpose of obtaining heroin and sending it to Australia." 42 Finally, his Honour concluded at 635: "If the undisputed evidence had stood alone, however, the jury might think that, despite the applicant's statements to Lisk and Gawthorpe concerning his need to import heroin to overcome the company's financial difficulty, it was just possible that the applicant and Martin were acting independently of each other and that Martin had falsely implicated the applicant in the importation of the heroin which Martin sent to Australia. But the disputed evidence, once accepted, put the matter beyond doubt. In the absence of evidence to the contrary, no rational jury could accept that two persons jointly involved in selling heroin in Australia would leave the country, meet up in Bangkok and travel together on a long overnight bus journey to a town where heroin was obtained and mailed to four addresses in Australia including two addresses supplied by one to the other without both persons being involved in the purchase and importation of the heroin. Moreover, the probative force of the disputed evidence concerning the joint heroin dealings clearly transcended its merely prejudicial effect. The evidence had the tendency to prejudice the applicant because the jury might think that he was a person who, by reason of his propensity to deal in heroin, was the sort of person who would import heroin into Australia. That potential prejudice, however, was clearly outweighed by the probative force of the evidence when considered with the other evidence because it indicated to the point of near certainty that Martin and the applicant were acting in concert in Chiang Mai." 43 So, in this case, the idea that the relevant association between the Appellant and Le, being the occasion on which Le drove a car to the immediate vicinity of the Appellant's residence, could be regarded as innocent, was decisively rebutted by the evidence of prior drug dealings. Without that evidence, to use McHugh J's phrase "it was just possible the (the Appellant and Le) were acting independently of each other". This does not involve any tendency reasoning. His Honour's other formulation "whether two persons jointly involved in drug dealings would not be involved in the purchase (and sale) of heroin" when one had driven from Melbourne to the immediate vicinity of the residence of the other and then immediately commenced the return journey, may be closer to tendency reasoning, but that need not be determined. 44 A similar issue arose in the Full Court of the Supreme Court of South Australia in R v Ngo and Le [2002] SASC 373. In that case also there were a number of intercepted telephone calls in which a rudimentary code was used. It was submitted that evidence of the conversations which was relevant to the earlier counts could only have relevance to the later counts as propensity evidence. Besanko J, with whom Doyle CJ and Wicks J agreed, rejected this submission at [53]: "In my opinion, there was a basis for the admission of the evidence other than a propensity basis. The prosecution was entitled to put forward evidence which as a whole showed the operation of a well organised and substantial business of buying and selling heroin. The jury was entitled to use the evidence of the telephone calls between April and August 1998 in assisting it in determining who was in possession of the heroin in the main bedroom and laundry of the house at 55 Addison Road on 17 August 1998 and in the various places at 39 Addison Road. Equally, the jury was entitled to use the evidence of the telephone calls as assisting it in determining who was in possession of the heroin at 55 Addison Road on 15 November 1997. Such a use of the evidence does not involve the jury reasoning on a propensity basis. The evidence, together with the evidence of the financial position of the appellants, was capable of establishing the fact that as at the time of the first recorded telephone call in April 1998 and for some time prior to that date there was a well-established and large-scale business in operation. In other words, the evidence was not put forward to support a conclusion that the appellant was a person likely from his criminal conduct or character to have committed the offences. ( R v Nieterink [1999] SASC 560; (1999) 76 SASR 56.)"

(See also R v Norris (2001) 121 A Crim R 227 esp at 230-231; R v Burns & Collins (2001) 123 A Crim R 226 esp at 232-237.) 45 In my opinion, the reasoning in Harriman does apply to this case. The evidence was admissible on this alternative basis. 46 There is obvious prejudice that arises when evidence of this character is adduced. However, as Sully J states, it was open to the trial judge to refuse to exercise his discretion to reject the evidence pursuant to s137. 47 The express assertion by the Crown that it was not adducing any of the evidence to prove tendency and that, accordingly, it was not "tendency evidence" within the meaning in the Dictionary, was reinforced by an express direction by the judge to the jury that the evidence should not be used for that purpose. That was given in terms sought by the defence, terms formulated after the jury had been instructed by those parts of the summing up to which criticism is now directed. I agree with Sully J on this matter. The Appellant requires leave under Rule 4 to raise the issue. I would refuse leave with respect to Ground 2. In any event, the direction was adequate to the purpose. It identified the evidence and accurately conveyed the substance of the statutory restriction. 48 The appeal should be dismissed. 49 SULLY J: The appellant, Mr. Tan Gia Quach, stood trial in February 2002 in the Sydney District Court before his Honour Acting Judge Andrew and a jury of twelve. The appellant was charged with having supplied, on 2 May 2000, an amount of heroin being not less in quantity than the large commercial quantity prescribed by the relevant legislation in respect of heroin. Such an offence contravenes section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), and attracts upon conviction a statutory maximum penalty of, relevantly, imprisonment for life. The jury found the appellant guilty as charged; and he was subsequently convicted formally and sentenced to a substantial period of imprisonment. The appellant now appeals against his conviction. He does not seek leave to appeal against his sentence. 50 The Crown case at trial was a circumstantial evidence case. Its basic structure was as follows. 51 On the evening of 1 May 2000 a man named Phuong Tan Le drove a Toyota Prado motor vehicle from Melbourne to Sydney, arriving in Sydney during the early hours of the morning of 2 May 2000. Unknown to Mr. Le, the motor vehicle was fitted with a lawfully authorised electronic tracking device. That device enabled police officers to monitor the progress of the vehicle as it drove from Melbourne to Sydney. At about 4 a.m. on 2 May the vehicle reached Stanmore. It paused very briefly before resuming its journey in the direction of Leichhardt. The vehicle was tracked to the vicinity of a laneway running behind James Street, Leichhardt. The tracking device showed the vehicle stationary between 4.07 a.m. and 4.19 a.m. Shortly after 4.19 a.m. the monitoring police again detected the vehicle in motion in Norton Street, Leichhardt. The vehicle was tracked heading south; and it was eventually stopped by the police at about 7.05 a.m. and at a point somewhat south of Goulburn. The vehicle was searched; and the search revealed the presence in the vehicle of 5.9 kilograms of heroin, having a purity in the range 70-75 percent. 52 On 2 May 2000 the appellant's residence was at 90 James Street, Leichhardt. The laneway to which reference has been made in the preceding paragraph ran behind those premises. A garage large enough to accommodate two motor vehicles abutted the laneway and opened into the laneway. 53 Following the police interception of Mr. Le's vehicle and the discovery of the 5.9 kilograms of heroin, the police applied for a search warrant to search the appellant's premises at 90 James Street, Leichhardt. A warrant was issued, and at about 10.30 a.m. the police, pursuant to the authority of the warrant, searched the appellant's premises. The search uncovered bank notes, some of them newly issued bank notes, totalling $780,720. The search uncovered two other relevant items: first, a mobile telephone registered in a false name; and secondly, a piece of paper on which was written the name "Phuong" and the figures "748,000". 54 Evidence was given at trial that the market value in May 2000 of 700 grams of heroin was in the range $86,000 - $90,000. This entailed that the market value of the 5.9 kilograms of heroin found in the possession of Mr. Le was strikingly close in amount to the amount of cash found during the search of the appellant's premises. 55 The search of the appellant's premises was extensive. It was video-recorded; and a transcript, which became exhibit AL at the trial, was prepared as a record of the search. The important thing to note for present purposes about the record of the search is that the record discloses that the police officer in charge of the search repeatedly cautioned the appellant before asking him various questions about various items discovered during the course of the search. It is clear from the transcript that the appellant understood the cautions. From time to time he declined to answer particular questions. At the very conclusion of the search of the appellant's premises, the following exchange is recorded as having taken place between the appellant and a police officer: [POLICE OFFICER:] ……… . And just in fairness to you, for your comfort, we'll do that and straight after that's done we'll take you straight to the nearest police station. [APPELLANT:] Yeah. Mm. [INTERPRETER:] I would like to call my solicitor before going to the police station. [POLICE OFFICER:] Yeah, you could ring him downstairs. That's no problem. You can get him to meet us at Balmain Police Station. [APPELLANT:] Balmain Police Station. This one's solicitor number here. [POLICE OFFICER:] Okay. [APPELLANT]: Okay. Yeah." 56 Later on 2 May the appellant took part in an electronically recorded interview with the investigating police. It will be necessary to return to some of the detail of that interview, because the propriety of the interview is challenged by the appellant: see Ground 3 of the Grounds of Appeal. It suffices for the present to note that the appellant admitted during the course of this particular interview that the money located at his home was his; and he asserted that he had accumulated it over a period of some 20 years, and either from savings made by him and his wife, or from gambling winnings. The appellant asserted, further, that he did not know Phuong Le and that he had no knowledge whatsoever of the heroin that had been found earlier that day in the vehicle driven by Phuong Le. 57 Some days later, and on 13 July 2000, the appellant took part in a second electronically recorded interview with investigating police. The propriety of this interview, also, is now challenged by the appellant: see Ground 4 of the Grounds of Appeal. It suffices for the present to note that the appellant said during the course of this particular interview that he had gambled at both the Sydney and the Melbourne Casinos during the few preceding months. He said that he had won about $20,000 at the Melbourne Casino shortly prior to 2 May 2000, having originally flown to Melbourne with some $30,000 in hand for the purpose of gambling. The appellant was shown, during the course of this particular interview, a photograph of Phuong Le. The appellant said that he knew the face from having seen it at the Sydney Casino, although he had not seen the man in the photograph for a couple of years. He could give no explanation why he had written the name "Phong" and the figures "748,000" on a piece of paper found at his home. The interviewing police played to the appellant, during the course of this particular interview, a number of tape recordings of lawfully intercepted telephone conversations. The appellant said that he did not know whose voices were recorded on those tapes. The appellant explained to the police that he had a Chinese name, Quach Ting Nam, and that his family frequently referred to him as "Nam". 58 The Crown tendered as part of its case at trial a set of eleven tapes, and accompanying transcripts, of lawfully intercepted telephone conversations; and called voice identification evidence to prove that the voices of the appellant and of Phuong Le were among the voices recorded on the intercept tapes. The appellant contends that the evidence of the contents of these intercepted telephone conversations was wrongly admitted; and that, the evidence having been admitted over objection, the directions given to the jury concerning the evidence were inadequate. These challenges are the bases of Grounds 1 and 2 of the Grounds of Appeal. 59 There was evidence at trial that the appellant's taxable income for the 1996-1997 year had been $11,705; that for the 1997-1998 year it had been $17,112; that for the 1998-1999 year it had been $17,122; and that in the period 24 May 1999 until 27 March 2000 loan repayments exceeding in total $100,000 had been paid by the appellant to the St. George Bank. 60 The appellant did not give evidence at his trial. The case presented at trial for the appellant, who was represented at his trial by Queen's Counsel with very extensive experience in the conduct of criminal trials, was that the voice identification evidence was tainted and unreliable and not capable of proving to the requisite standard that the appellant's voice could be heard on the intercept tapes; that the vehicle driven by Le could not have turned down the laneway behind the appellant's home, for the reason that the local council was engaged at the time in major curbing and guttering works which would have made such access impossible; that there was reason to think that the tracking device in Le's vehicle was faulty; that there was no forensic evidence linking the drugs found in Le's vehicle with the money found in the appellant's premises; and that the appellant had given credible explanations as to the source of the money that had been found by the police during the course of their search of the appellant's premises on 2 May. 61 It is now convenient to take up each of the four grounds of appeal.

"The learned trial Judge erred in admitting evidence of eleven intercepted telephone conversations between the appellant and Tan Phuong Le between 19 and 29 April 2000" 63 As previously noted, the Crown tendered, and the trial Judge admitted over objection, a collection of eleven tapes and transcripts, the contents of which recorded eleven particular telephone conversations passing between the appellant and the man Le. Leaving to one side for the moment the objections that were taken at trial concerning the quality of the voice identification, and of the translations from Vietnamese to English, the objections to the admissibility of this material were: first, that the material was not in any event relevant to an issue in the trial; and secondly, that even were the material relevant, its potential for prejudice was such that, as a matter of discretion, it ought not to be admitted. 64 So far as concerns relevance, the Crown contended at trial that the material was relevant as showing both the existence and the nature of a relationship existing between the appellant and Le at times proximate to 2 May, the date of the alleged offence. The Crown expressly disclaimed any wish to lead the material as tendency evidence. 65 The learned trial Judge dealt in short order with the relevance argument. His Honour said: "In this case the Crown must prove the supply of heroin. That is the ultimate issue. I am satisfied that the evidence in the tapes is relevant to that issue. There is evidence capable of identifying references to the drug heroin and there is evidence on the tapes which shows a nexus with the events of 2 May 2000." 66 As to the submission that the material, if otherwise relevant, should be excluded on discretionary grounds, his Honour was equally to the point, saying: "I consider that the evidence should not be excluded on discretionary grounds. I consider that the probative value of the evidence is high, and outweighs the danger of unfair prejudice to the accused. Whilst the evidence is prejudicial, in my view it is not unfairly so. In my view, this is evidence which should go to the jury." 67 The submissions now put for the appellant concerning this material are most conveniently summarised by quoting as follows from the written submissions of learned senior counsel for the appellant: "3.4 If the purported use to be made of evidence of the calls was as "contextual background", that is to prove an association between the appellant and Mr. Le (contrary to the appellant's account) then evidence of these calls and the identity of the speakers could have been given without the content of the conversation (assuming the interpretation as to voice and content is accurate). The Crown at all times emphasised that this evidence was not relied on as tendency evidence. …………………………………………………………….. 3.10 The import of this evidence is that the nexus between the appellant and Le relevant to the subject charge is more readily established from the following proposition - if they were involved in drug dealing on various occasions prior to 2 May 2000 it is more likely that they were dealing in drugs on the morning which is the subject of the offence charged. Reasoning along these lines is tendency reasoning and is caught by s.97 of the Act as well as by s.101. 3.11 If the prosecution sought to establish a relationship between the appellant and Le that was based on drug dealing (as it seems may have been intended), then this evidence was being relied on to prove the commission of the offence charged, not merely as evidence of "background" relationship. ………………. 3.12 It is submitted that in this case it was essential to establish the true purpose for admitting the evidence of the telephone conversations. Depending upon what that purpose was, the nature of the judge's role in determining questions of admissibility would be different. The distinction between the use of "relationship" evidence as evidence of "context" or "background" and its use as evidence proving that the offence charged was committed is clearly made in the judgment of Ireland J (with whom the other members of the court agreed) in this court in R v AH (1997) 42 NSWLR 702 at 708. 3.13 If the evidence was admitted to show that there was association between Le and the appellant, that is that they knew each other or that there had been communication between them prior to 2 May 2000, then the evidence is not tendency evidence. On the other hand, if the evidence is led to establish that because these men had previously dealt in drugs together, then it was more likely that they had been involved in a drug deal together on the occasion of the offence charged, the evidence is being used as tendency evidence and therefore must comply with the requirement of the Evidence Act, particularly ss 95 and 101. …………… . ………………………………………………………………………….. 3.16 In determining the admissibility of the evidence it was, it is submitted, necessary to have regard to the provisions of ss 97 and 101 of the Evidence Act 1995. Because neither of these were considered, primarily because of the Crown's contention that the evidence was not relied on as tendency evidence, the whole question of admissibility has miscarried. There has been no proper determination and no proper analysis of the issues involved. If this evidence had been proffered merely to establish the existence of a relationship or association between Mr. Le and the appellant, then all references to drugs should have been excluded. Where there are different items of evidence, each one needs to be examined individually to determine the applications of the provisions of ss 135 and 137 of the Act, as well as s 136 if necessary. This was not done in the judgment of the learned trial judge ……………… " 68 In considering these submissions, it is convenient to begin by quoting as follows from the decision of the Full Court of the Federal Court of Australia in Conway v R (2000) 172 ALR 185: "[97] In our view the provisions of the Act which govern the admissibility of 'similar fact evidence' have no application to relationship evidence which is led in accordance with the principles laid down in Wilson and Frawley . Relationship evidence does not fall within the ambit of the tendency rule as contained in s 97, …………………… . [98] We are fortified in this conclusion by a decision of Hunt CJ at CL in R v Lock (1997) 91 A Crim R 356. In that case the accused stood trial for murder. She had stabbed the deceased, a man with whom she was living at the time, although no longer in a de facto relationship. She relied, in support of her claim of self-defence, upon a history of violence directed against her by the deceased. The Crown in turn sought to adduce evidence of injuries received by the deceased at her hands, including three stab wounds. This evidence was put forward by the Crown as being 'relevant to the true nature of the relationship between them', but also as 'tendency evidence' within the meaning of s 97 of the Evidence Act ……………. . [99] Hunt CJ at CL held that some of the evidence was tendency evidence and was not admissible because, even if it had the significant probative value as required by s 97, the court would not be satisfied, as required by s 101(3) that its probative value substantially outweighed any prejudicial effect it might have on the accused. His Honour was also of the view that, for that part of the evidence to be admissible in accordance with the High Court in Pfennig , there must be no reasonable view of it which is inconsistent with the innocence of the accused. [100] Hunt CJ at CL held further that some of the evidence was relationship evidence only and not therefore subject to the restrictions on admissibility imposed by the ss 97, 98 and 101. In accordance with s 146 his Honour directed the jury that the relationship evidence could not be used as tendency evidence. [101] We agree with respect with his Honour's approach. The admissibility of 'relationship evidence' under the Act is governed, in our view, by the relevance of that evidence, subject to the exercise by the trial judge of his discretion to exclude it under one or more of the various exclusionary discretions contained in Pt 3.11 of the Act. In a criminal proceeding a trial judge is required, under s 137 of the Act, to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. The admissibility of relationship evidence is not governed by the special rules developed at common law in relation to similar fact evidence, or by the operation of ss 97 and 98 of the Act which require not only that the evidence have 'significant probative value' before it may be admitted but also that its probative value 'substantially outweighs' any prejudicial effect it may have upon defendant: s 101(2) of the Act." [Note: In the above quotation to Wilson , Frawley and Pfennig are references, respectively, to: Wilson v R (1970) 123 CLR 334; R v Frawley (1993) 69 A Crim R 208; and Pfennig v The Queen (1995) 182 CLR 461] 69 The sequence of eleven intercepted telephone calls can be summarised as follows: Date Time Details 19 April 2000 8.12 p.m. The appellant rings Le 20 April 2000 3.12 p.m. The appellant rings Le 20 April 2000 3.59 p.m. The appellant rings Le 20 April 2000 6.18 p.m. The appellant's wife and the appellant ring Le 21 April 2000 7.33 a.m. The appellant rings Le 21 April 2000 4.26 p.m. The appellant rings Le 22 April 2000 11.31 am The appellant rings Le 23 April 2000 12.52 pm Le rings the appellant and the appellant's wife 26 April 2000 4.03 pm The appellant rings Le 27 April 2000 3.23 pm The appellant rings Le 29 April 2000 3.52 pm Le rings the appellant

70 It should be added, for present purposes, that the Crown tendered as part of its case at trial call charge records which were capable of establishing that two phone calls were made, one at 6.52 p.m. and the other at 6.56 p.m., from a phone that could be connected to Le to the appellant's mobile phone number, those calls having been made minutes before Le left at 6.59 p.m. on 1 May 2000, on the journey which brought him ultimately, and in the early hours of the following morning, to the close vicinity of the appellant's premises in Sydney. 71 The Crown case was that the appellant had sold 5.9 kilograms of heroin to Le in exchange for more than $700,000 in cash. The Crown case was that the transaction had occurred at the appellant's premises and in the very early morning hours of 2 May 2000. There was no direct evidence of the carrying out of the transaction. The appellant's stance at trial was that he had no connection whatsoever with any such transaction; that he had no acquaintance with Le except a casual and visual acquaintance deriving from a sighting of Le at a gambling casino; and that he had no relationship whatsoever with Le of such a kind as would discredit his, the appellant's, basic position that at the relevant time on the relevant morning he had been asleep in his own bed, oblivious to any drug-related activity of Le. 72 In such a trial setting, it seems to me that the evidence of the eleven intercepted telephone conversations was relevant and admissible in order to show such a relationship between the appellant and Le as would establish that it was no mere series of unfortunate coincidences that began with a flurry of telephone conversations about drugs; caused Le to drive from Melbourne to Sydney overnight to a destination in Sydney that was practically on the appellant's door-step; and that found Mr. Le shortly thereafter on his way back to Melbourne in possession of 5.9 kilograms of heroin; and found the appellant, at the same time, in possession of an enormous sum of money in bank notes, many of them new bank notes, the total amount of such money equating strikingly to the current market value of that 5.9 kilograms of heroin. 73 It is true, of course, that to say that the material was relevant and admissible is not to say that it ought, without more, to have been admitted in fact. That further step required the exercise of a discretion on the part of the trial Judge. The relevant principles are well established and it is for the appellant to demonstrate that the discretion did in fact miscarry. It suffices to say that, in my opinion, the appellant has not demonstrated any such miscarriage of the trial Judge's discretion. 74 The written submissions put in for the appellant in connection with Ground 1 include a submission that the evidence of the intercepted conversations ought not to have been admitted because of asserted deficiencies in the identification of the persons said to be taking part in the conversations. The trial Judge conducted a lengthy voir dire during the course of which his Honour saw and heard the relevant expert witnesses, an advantage this Court has not enjoyed. His Honour's ruling, given at the conclusion of the voir dire hearing, that the challenged evidence would be admitted involved, no doubt, a view about the admissibility in point of law of the intercept material; but it involved, as well, findings of fact from which this Court, in my opinion, should not lightly depart. The evidence having been admitted at trial, it is not now contended that the trial Judge did not give correct and careful directions to the jury concerning the voice identification evidence and the potential pit-falls associated with its assessment by the jury. 75 In those circumstances, I am of the opinion that Ground 1 has not been sustained upon that portion of the appellant's submissions with respect to the ground, having to do with the quality of the voice identification evidence. 76 For the whole of the foregoing reasons, I am of the opinion that Ground 1 has not been established.

"The directions given by the learned trial Judge on the use which the jury could legitimately make of the evidence of the telephone conversations were inadequate." 78 At the conclusion of the summing-up, learned Queen's Counsel then appearing for the appellant made the following application: "[COUNSEL]: Your Honour, the telephone intercepted material would your Honour direct the jury that they shouldn't reason along the process of reasoning to this effect, that they can use that telephone intercept material to reach a conclusion that because he was talking about drugs in those conversations he therefore would be more likely to commit the offence for which he is being tried. In other words, all that telephone intercept material in our submission is highly prejudicial and may be -- HIS HONOUR: It's more likely to be what? [COUNSEL]: Is highly prejudicial. HIS HONOUR: Yes more likely to be guilty of this charge? [COUNSEL]: Yes. It requires a warning because of its prejudicial content along the lines of a warning that would be given in, for example, relationship cases, where there is evidence disclosing other offences not charged." 79 His Honour sought the assistance of the Crown Prosecutor, who agreed that such a direction should be given. The trial Judge thereupon invited the appellant's counsel to articulate the direction that he was seeking. Counsel replied: "Yes your Honour. The Crown has led evidence of telephone intercept conversations. It's the Crown case that those conversations between 19 April and 29 April relate to drug dealing and that Det. Nguyen has given evidence that in his opinion they relate to past dealings, therefore, you should not use this evidence to reason if you accept it that because the accused was party to those conversations he would be more likely to have committed this offence, or that he has a tendency to commit this offence." 80 Once again, the trial Judge invited a submission from the Crown Prosecutor; and, once again, the Crown Prosecutor agreed that a direction as thus sought should be given. 81 Thereupon, his Honour brought the jury back into Court, and gave a number of re-directions which included the following: "Further direction I give you in relation to the telephone intercept evidence is that the Crown case that those conversations between 19 April and 29 April insofar as they relate to drug dealing, and that Det. Nguyen has given evidence and his opinion that in those conversations there was evidence related to past dealings in drugs, you should not use this evidence to reason that because the accused was party to those conversations he would be more likely, or have a tendency, to commit this particular offence." 82 Queen's Counsel then appearing for the appellant sought no further re-directions. 83 In those circumstances, I am of the opinion that Ground 2 has not been established. 84 I would refuse leave pursuant to Rule 4 to raise this point on appeal.

"The learned trial Judge erred in admitting the ERISP interview conducted between the investigating police and the appellant on 2 May 2000 at Balmain Police Station commencing at 7.05 p.m." 86 The gravamen of the appellant's case on this ground of appeal is that he "was denied the opportunity to have his solicitor present and advise him as to his rights before questioning……………... . To justify the reception of the interview as evidence against the appellant it is no answer to find that the truth of the answers was not affected. Otherwise the right to silence becomes meaningless. …………………….. The appellant could not reasonably be regarded as a willing participant in the interview. This is not only a case of unfair pressure being placed on the appellant by interviewing police placing him at an unfair disadvantage, but a disregard by the investigating police of the legal advice tendered to an interviewee not to answer questions. ………….. The right is fundamental and its breach in this case was ……………… flagrant." 87 It is convenient to return to the record, earlier herein mentioned, of the exchanges between the appellant and the police who searched his home during the morning of 2 May 2000. That record discloses that after a deal of searching, and a deal of counting money found in various locations during the course of the search, the following exchange took place: "[POLICE OFFICER]: We still haven't finished the search of the house. [APPELLANT]: Uh huh. [POLICE OFFICER]: And once that's done we'll take you to the station to speak to you further. Okay? [APPELLANT]: Okay. Yeah. [POLICE OFFICER:] One further thing, you've tried to contact your solicitor before? [APPELLANT]: No, not yet. I tried to get but (…..ind) [APPELLANT'S SON]: He tried but he hasn't returned the call.

(indications of overtalk) [POLICE OFFICER]: Still waiting. [APPELLANT]: Can you ask them to get a phone for me now please? [POLICE OFFICER]: We'll make more attempts to get hold of your solicitor, okay? [APPELLANT]: Yeah, yeah. [POLICE OFFICER]: You understand we are trying to get hold of her on your behalf or at least to know you've tried to contact him. [APPELLANT]: Yeah." 88 Later during that same search, and as earlier herein noted, there was a brief further exchange about the appellant's wish to contact his solicitor prior to his being taken to the Balmain Police Station. 89 When the formal interview with the appellant commenced at the police station at 7.05 p.m. that same evening, the police officer who was conducting the interview cautioned the appellant in these terms: "As I've already explained to you, Det. Snr. Constable Rodriguez and I are making inquiries in relation to, firstly, the finding of a quantity of heroin, approximately, close to 6 kilograms which was seized near Goulburn this morning, and we're also investigating a large sum of cash found at your residence today, from the Search Warrant. I'm going to ask you further questions about this matter. You're not obliged to say or do anything unless you wish to do so, whatever you say or do will be electronically recorded and may later be used in evidence. Do you understand that?" 90 An accredited Vietnamese language interpreter was present for the purpose of assisting the appellant; and the appellant responded, through the interpreter, "yes". 91 Certain further formal questions were put to the appellant, and were answered by him with no apparent difficulty and with the assistance of the interpreter. There then ensued the following sequence of questions and answers: "Q.11 Did you then agree to being electronically interviewed? A. I don't know what the question are to be interviewed. Q.12 Do, do you agree to be interviewed in relation to this matter? A. I don't, I don't know, I have to wait for my solicitor. Q.13 Right. Downstairs in the in the charge station you spoke to me in relation to your solicitor. A. After the interview, I said after the interview I would like to contact my solicitor to ask her whether she could bail me out or not and what are the conditions that required for her to bail me out. Q.14 O.K. We'll give you another opportunity to ring your solicitor after the interview as well, but before we left the, your home at about 10 to 6.00 tonight, do you agree you had a conversation with your solicitor? A. My solicitor told me not to say anything and after that just tell the Detective to contact my solicitor if he wants something. Q.15 Did your solicitor say that she would not be attending the station tonight? A. I said to her that I was going to go to the Balmain Police Station and I was told that after being here I would contact, I would get you to contact my solicitor to have a talk with her. Q.16 Yes, I've already agreed, I can ring her after the interview but is your solicitor in a position to attend this interview? A. My solicitor said that I should not say anything. Q.17 Alright. Do you, do you agree that, do you agree to be electronically interviewed now in the absence of your solicitor? A. I don't know. My solicitor told me to wait for her, not say anything. Q.18 Is your solicitor going to attend the station tonight for a interview? A. No, she said it's too far for her to come but after it finished just ask the person to contact my solicitor. Q.19 What I propose to do, I have to put some questions to you and ask you some things about what happened back at the house, put some allegations to you. A. Well there's nothing else, if you want to ask questions about the house I've only got money there. Q.20 O.K. That's what I'd like to speak to you about. A. That's my money, my wife and I have been working and we save it, we kept the money. Q.21 Right. Now, just getting a bit out of order now. I also have to ask you questions in relation about some heroin found in another vehicle. A. That's nothing to do with me about that, I don't know anything." 92 The transcript of the interview records all of the foregoing answers as having been given through the interpreter. 93 The interview continued thereafter until about 7.50 p.m. The interview was then temporarily suspended for the purpose of obtaining more tapes. Some five minutes later the interview was re-commenced. The transcript shows the following exchange: "Q.172 O.K. Now we intend to ask you, continue asking you further questions. You are not obliged to answer unless you wish to do so, whatever you say or do --- A. (SUSPECT) Mmm, everything I know is how --- Q.172 O.K. --- A. (SUSPECT) Yeah. Yeah. Q.172 --- will be recorded on this electronic recording device --- A.(SUSPECT) Yeah. Q.172 ---- and may later be used in evidence. Do you understand that? A. (SUSPECT) Yeah." 94 The interview then continued until question 215 with questions put to the appellant, and responses given by the appellant, in connection with the very large amount of money found during the course of the police search of his home earlier that morning. At question 215, the questioning turned to the subject of heroin. Six questions were put concerning the heroin found in the vehicle driven by Le. They are brief questions and the appellant responded with complete clarity that he knew nothing about the heroin. At question 227 the interviewer put to the appellant: "We're asking certain questions about, about this. You're not obliged to answer unless you wish to do so, but whatever you say and do will be electronically recorded on this device and may later be used in evidence. Do you understand that?" 95 The record shows that both the interpreter and the appellant answered this question affirmatively. The questioning then continued further. It concentrated upon various aspects of the appellant's possession of the money found upon the search of his home. At the conclusion of that sequence of questions and answers, and after the appellant had given an answer indicating he had bundled certain quantities of money up in a certain fashion, the following is recorded: "Q.271 O.K. A. (INTERPRETER) I find that I have nothing else to say." 96 The interviewer then changed the subject to the matter of the appellant's mobile phone, and asked a number of questions in that connection. The appellant made apparently willing responses, sometimes with the assistance of the interpreter and sometimes not, to these questions. When asked, at question 321 whether there was anything further he wished to say, the appellant answered with the assistance of the interpreter: "No. The money that you have taken was my money and I, and you have taken them away, so all I do is waiting for the day I go to court. I have evidence, I give evidence and I will have the money back." 97 The appellant himself is recorded as having said without the assistance of the interpreter: "That's all". 98 The interview was then concluded and the usual arrangements were made for a senior and independent police officer to speak to the appellant in order to ensure that the interview had been conducted fairly. The appellant was asked, in the normal way, whether he had any complaints to make about the way in which he had been interviewed. He said that he had been asked about a number of people "which I don't know" and that he had found that line of questioning "very unreasonable" but that otherwise he had no complaints. 99 The interviewing police officer gave evidence on the voir dire and was cross-examined as follows: "Q. Well, you just told the court you accepted at face value what his solicitor told him. Can we agree on that? A. That's what I told the court, yes. Q. And that was that he didn't wish to say anything, on legal advice? A. Yes Q. Can we agree on that? A. Yes. Q. Now, at that point you saw fit to keep questioning him, didn't you? A. I told him I had to put the allegations to him about why he was here; yeah, in effect, I just had to put the allegations to him. Q. See, you were very anxious to press on and put whatever you thought was appropriate, weren't you? A. Only in relation to telling him why he was there by virtue of the allegations, yes, as I'm compelled to do, basically. Q. Did you think that there might be some merit in the advice he'd been given by the solicitor, particularly when the solicitor wasn't able to attend the police station and be present during the interview? A. She wasn't prepared to come, no; that's right. Q. And did you think that there was some significance in Mr. Quach's comment to you to this effect, 'because the solicitor can't come, the advice I've been given is not to say anything'. Did that cross your mind? A. My perception of Mr. Quach was he was more concerned about what the questions were going to be in the interview. When he found out - when I went to go into the allegations and he found out that they were centring about the money in the house, he was more than happy to answer the questions. And from that point on, he answered quite happily. Q. But that's, of course, a bit like closing the gate after the horse has bolted, isn't it? You pressed on with what you wanted to ask him? A. I've started the allegations and he continued speaking. He was happy to do so. He knew of his right to silence from the start. Q. Absolutely? A. In fact, before he even spoke to his solicitor back at the search warrant, he was using selective answering back then before he even spoke to his solicitor. Q. Exactly. A. That's after he was cautioned. Q. Exactly. So it was apparent to you when you started the interview, he knew he had a right to speak or be silent? A. That he understood that, yes. Q. Yes. A. Well and truly." 100 In R v Plevac (1995) 84 A Crim R 570, this Court, (Badgery-Parker, Dunford and Simpson JJ), stated the following propositions which are relevant to the ground now being discussed: "Many of the arguments which arise as to the admissibility of evidence of questions asked by police officers in the course of an interview with a suspect (who later becomes the accused) and the answers given, become confused, particularly because of a failure to distinguish between, on the one hand, the right of the police to put questions to a suspect who is willing to be questioned and on the other hand, the admissibility of evidence of what was said on such occasion; by lack of precision in the formulation of propositions relating to an accused person's so-called right of silence; and a failure clearly to distinguish between evidence which is relevant and therefore admissible, and evidence which, although admissible because of its relevance, ought be excluded in the exercise of the court's discretion. The following propositions are thought to be an accurate but not exhaustive statement of relevant principles: 1. Police may, in the course of investigation, interrogate a suspect who is willing to answer their questions, and that interrogation may include putting to the suspect the facts as the police know, or believe, or suspect them to be, in order to ascertain what, if anything, the suspect will say about them: ……………… 2. But questioning must be fair and must not amount to 'intimidation, persistent importunity or sustained or undue insistence or pressure': ………….. but questioning is not to be regarded as unfair merely because it is persistent: ……………… 3. Police should not persist with such an interrogation after the suspect has indicated that he or she does not wish to answer further questions: ……………… ; although merely because a suspect says he does not wish to answer, or will not answer, any further questions does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise admissible. ………………………………………………………………… ." (At 579, 580: citations of authority have been omitted) 101 In R v Clarke (1997) A Crim R 414, this Court, (Hunt CJ at CL, Smart J and Howie AJ), gave consideration to, among other things, the impact upon antecedent principles of the coming into effect of the Evidence Act. Hunt CJ at CL drew attention to the provisions of sections 85, 90 and 138 of that Act and observed: "These provisions make it clear that evidence obtained unfairly or improperly will not necessarily be excluded unless that conduct was such as to make it likely that the truth of the admission was adversely affected. In my view, those sections provide appropriate and sufficient protection for suspected persons, ……………………. . It should be kept in mind that a police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence. No doubt the evidence will inevitably be excluded if there is any suggestion of intimidation, persistent importunity or sustained or undue insistence or pressure." (at 419, 420) 102 Smart J observed: "It is not uncommon for an accused to intimate that he does not wish to answer any questions and then to decide to answer some questions or to make a statement or explanation. There may be something in a police statement or summary of the situation which the accused regards as wrong and needs correction or something which need explanation. There are many possibilities. It would be unwise to hold that every time an accused states that he does not want to answer questions, some further questions are put and answers are given or explanations or statements made such answers, statements or explanations are inadmissible. Everything depends on the circumstances. There may, for example, be no challenge to the truthfulness or accuracy of the alleged replies." (at 431). 103 The learned trial Judge, in ruling upon the objections to the admissibility of evidence of this particular interview with the appellant, adverted to sections 85, 90 and 138 of the Evidence Act and concluded: "In the circumstances in which these admissions were obtained, I am not satisfied that it would be unfair to the accused to use that evidence (section 90), and I am not satisfied that there was impropriety which would outweigh the desirability of admitting the evidence. I am not satisfied of any impropriety or unfairness such that it was likely that the truth of the admissions was adversely affected." 104 When the principles which I have previously extracted from the decisions in Plevac and in Clarke are applied fairly to the whole of the relevant circumstances as I have previously canvassed them, then, in my opinion, it was well open to the trial Judge to reach the conclusions which I have quoted from his Honour's relevant ruling. 105 In my opinion Ground 3 has not been established.

"The learned trial judge erred in admitting the ERISP interview of 13 July 2000 at Balmain Police Station." 107 It is convenient to begin by quoting the relevant ruling of the trial Judge: "The accused was interviewed at the Balmain Police Station on 13 July 2000 ……………….. . Objection is taken to its admission on the basis that it was not obtained in the exercise of a free will to speak or remain silent. That objection is based on the following: 'Q.46 Just, um, we've just realised because of the confusion of the allegation when we started the interview, I didn't give you your official caution, and I must give that. So in relation to the questions I ask you, you're not obliged to say anything unless you wish to do so, but whatever you say or do will be recorded on this device and may later be used in evidence. Do you understand that? A. Yes, that's correct. I had to tell you from the beginning to the end what has happened.' The accused agreed that he had previously been cautioned in the interview of 2 May 2000, and he was advised that because he had been asked questions prior to the caution at question 46, and it was put to him if those questions could be re-asked now that he had been cautioned, and he said that he had answered those questions and he understood that they could be used in court. The accused was subsequently cautioned throughout the interview. At the end of the interview he declined to answer anymore questions. He acknowledged that the answers were given of his own free will and he said that the two police officers were very kind and very gentle. I think that the absence of a caution at the beginning of the record of interview was remedied by what transpired at question 46 and the answer thereafter, that is, that the caution was given and the offer made to go through the earlier questions again, which the accused declined to do. I do not think that this interview was unfairly obtained (section 90); I do not find any circumstances which would suggest that there was any conduct such as to make it likely that the truth of the admissions was adversely affected (section 85). I think the questions asked about the money located at his house were relevant, as were the questions in relation to various phone calls. I think that that is relevant evidence which should properly go to the jury." 108 The conclusions which I have reached upon Ground 4 mirror the conclusions earlier reached in connection with Ground 3. In my opinion Ground 4, like Ground 3, has not been established.

Orders 109 For the whole of the foregoing reasons I am of the opinion that the appeal against conviction should be dismissed. 110 JAMES J: I agree with the judgment of Sully J. I also agree with the judgment of the Chief Justice which deals particularly with the first ground of appeal. **********

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