R v Tan Phuong LE (No 1) [2010] NSWDC 20

New South Wales District Court

CITATION: R v Tan Phuong LE (No 1) [2010] NSWDC 20

HEARING DATE(S): 24 February 2010

JUDGMENT DATE: 24 February 2010

JURISDICTION: District Court Criminal

JUDGMENT OF: Berman SC DCJ

DECISION: Interview to be admitted.

CATCHWORDS: CRIMINAL LAW - Judgment - Admissibility of interview

LEGISLATION CITED: Evidence Act 1995

PARTIES: The Crown Tan Phuong LE

FILE NUMBER(S): DC 2008/00018555001

COUNSEL: Mr M Johnston - Crown Mr F Santisi - Defendant

SOLICITORS: Director of Public Prosecutions (Cth) Tsambas & Co Solicitors

JUDGMENT

1 HIS HONOUR: Objection has been taken by Mr Santisi who appears for the accused to the tender of the contents of an interview which his client had with police officers. I have read a transcript of that interview and viewed an electronic recording of the early part of the interview.

2 The objection is taken on two grounds. The first is that Mr Santisi says that the police officers have failed to comply with the requirements of s 139(1)(c) of the Evidence Act, which requires that before starting questioning, the investigating official 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. It is important to understand here that the accused is far from fluent in the English language, and was assisted in the course of the interview by a Vietnamese interpreter. Of course I do not understand what was said between the interpreter and the accused when they were conversing in Vietnamese. I can only go on and rely on the words spoken in English.

3 The second aspect of the objection is that it was - according to Mr Santisi - improper for the officers to proceed the way they did, because it was incumbent upon them to ensure that the accused understood the caution that was given to him. I should also make reference at this stage to s 139(3) which requires that the caution is given in or translated into a language in which the person is able to communicate with reasonable fluency.