New South Wales Supreme Court CITATION : REGINA v. JUNG [2006] NSWSC 661 HEARING DATE(S) : 19 - 23 June 2006; 16 - 28 June 2006 JUDGMENT DATE : 29 June 2006 JURISDICTION : Criminal JUDGMENT OF : Hall J at 1 DECISION : The ERISP is admissible CATCHWORDS : Admissibility of the electronically recorded interview (ERISP) LEGISLATION CITED : Evidence Act 1995 Crimes Act 1900 The Queen v Swaffield (1997) 192 CLR 1569 CASES CITED : R v Nikau (Howie, J. unreported 14 October 1997) R v Exposito (1998) 105 A. Crim. R. 27 R v Moffatt (2000) 112 A. Crim. R. 201 PARTIES : REGINA v. JUNG, Myoung Il FILE NUMBER(S) : SC No. 2005/657 COUNSEL : Crown: M. Barr Accused: W. Terracini, SC./B. Murray SOLICITORS : Crown: S. Kavanagh Accused: Marsdens Law Group IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST HALL, J. THURSDAY 29 JUNE 2006 2005/657 REGINA v. MYOUNG IL JUNG JUDGMENT (On admissibilty of ERISP) 1 HIS HONOUR: Myoung Il Jung has pleaded not guilty on the presentation of an indictment charging him with the murder of Duck Huan Kim and Dok Su Kim on 30 January 1997. The trial is to proceed before me sitting with a jury that was empanelled on Monday 26 June. 2 The accused challenges the admissibility of the record and transcript of an electronically recorded interview conducted on Monday 8 November 2004 commencing on that date at 2.30 pm and concluding at 4.20 pm. The ERISP transcription was admitted on the voir dire and marked as Exhibit F. 3 The accused relied upon s.90 which is in the following terms:- "In criminal proceedings, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if:- (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence." 4 I have also had regard to s.85 of the Evidence Act 1995 (NSW). That section is in the following terms:- "(1) This section applies only in a criminal proceeding and only to evidence of an admission made by a defendant:- (a) in the course of official questioning; (b) as a result of an act of another person who is capable of influencing the decision whether a prosecution of the defendant should be brought or should be continued. (2) Evidence of the admission is not admissible unless the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected. (3) Without limiting the matters that the court may take into account for the purposes of subsection (2), it is to take into account:- (a) any relevant condition or characteristic of the person who made the admission, including age, personality and education and any mental, intellectual or physical disability to which the person is or appears to be subject; and (b) if the admission was made in response to questioning:- (i) the nature of the questions and the manner in which they were put; and (ii) the nature of any threat, promise or other inducement made to the person questioned." 5 Mr. Terracini, SC. provided a copy of the High Court's judgment in The Queen v. Swaffield (1997) 192 CLR 1569 in which Brennan, CJ. reviewed the authorities concerned with involuntary confessions (at pp.167-171) and the unfairness discretion (at pp.171-180). 6 Section 85, inter alia, requires consideration of the circumstances relating to the process by which official questioning occurs and is directed to ascertaining the truthfulness and reliability of admissions. The focus is upon the impact of the circumstances in which the admission was made on the actual reliability of the admission: Regina v. Nikau (Howie, J., unreported 14 October 1997); Regina v. Exposito (1998) 105 A. Crim. R. 27 at 44 per Wood, CJ. at CL. 7 The section may apply in circumstances not involving police impropriety. No such impropriety is claimed in this case. A suspect's vulnerabilities are to be taken into account: Regina v. Moffatt (2000) 112 A. Crim. R. 201. 8 The term "admission" may extend to a lie by a suspect or accused as a form of implied admission: Exposito (supra) at 43-44. The Crown in these proceedings relies upon a number of alleged lies by the accused. The prosecution bears the burden of proof under s.85(2) once the accused satisfies the court in terms of s.142(1) of the Evidence Act. 9 Both the accused and the Crown have also made submissions in relation to s.90 of the Evidence Act (discretion to exclude admissions). In the judgment on the admissibility of Dr. Sutisno's evidence, the evidence admitted on the voir dire is reviewed. It is not necessary here to repeat what is there said about the circumstances in which the ERISP took place. 10 The accused does not have a knowledge of and cannot speak English. He was therefore a person who was potentially at a disadvantage in dealing with police investigators. However, he had the assistance throughout the ERISP of an interpreter, Ms. Lee. It is important to observe:- (a) Ms. Lee was an experienced interpreter in the Korean language. She was also very experienced in interpreting on behalf of suspects who participated in ERISP. (b) There was no challenge either to Ms. Lee's competence or integrity. (c) Ms. Lee stated in evidence that she fully interpreted what was said to the accused and by him. (d) Ms. Lee considered that the concepts involved in what she interpreted were straight-forward concepts. (e) The accused appeared on the video recording to understand statements made to him and appeared to respond rationally and responsively. (f) The accused has a level of education. He left school at 18 years. (g) The warnings and information contained in the Part 10 statement were interpreted word for word to the accused. (h) There are no statements made by the accused suggesting that he was not comprehending what was being said to him or that he was unable to respond to what was put to him. (i) There was no indication before question and answer no. 219 that the accused had been told that he had to participate in the ERISP. No complaint had been registered by him prior to that time as to anything said to him or as to him understanding. (j) Both Detective Inspector Bailey and Ms. Lee said that no statement had been made to the accused to the effect that he had to participate in the interview (although Ms. Lee admitted that she did not have a detailed recollection of the series of questions and answers). (k) The answer to question 156 "Do I have to do that … I don't mind doing it …" is to a point inconsistent with imperative statements having been made that he had to participate. See also question 157 and the answer thereto. (l) The answer to question 190 affirming that he was told that he did not have to say anything unless he wished is inconsistent with him acting under or feeling as though he was acting under compulsion. (m) The accused advanced a positive personal reason as to why he felt he "had to" do the interview – to clear his name: see questions and answers 226, 227 and 228. 11 Mr. Terracini contended that the Crown had not established that the accused had in fact understood what had been said to him during the ERISP and drew attention, in particular, to aspects of the evidence of Ms. Lee at pp.32, 33, 36 and 37. He referred, in particular, to the answer given to question 230 in the ERISP where the accused said he understood that he had been told he needed to do the interview within a four hour period. It was said that this demonstrated a degree of confusion or lack of understanding. Reference is also made to answers to questions 159 and 160 in which the accused asked whether the taking of photographs would hurt as indicating a degree of misunderstanding or lack of understanding. Senior counsel also referred to the failure by police to provide a copy of the Part 10A statement to him as required by the provisions (then) of s.356M(1), Crimes Act 1900. 12 I have had regard to the particular answers to which attention has been drawn and I have closely examined the whole of the ERISP. I have also watched and listened to significant parts of the video tape of the ERISP. Particular answers to which I have referred may suggest a degree of misunderstanding, however, are to be viewed in the context of all 235 questions and answers. The impression in reading the transcript and in watching the video tape is that the accused demonstrated at least average intelligence and comprehension and the answers provided by him reflect a ready comprehension of the information being sought from him during the interview. 13 In what is marked as question 3 in the interview, he was told that he was not obliged to answer unless he wished to answer. He stated that he understood what was said to him. In a number of questions he was asked "do you understand that" to which he gave an affirmative answers (eg., questions five, six, seven). 14 When asked whether he was prepared to provided a buccal swab he responded with a question rather than an answer "do I have to do that?" followed by a statement "I don't mind doing it, but I don't know why I have to do it" (question 156). 15 The evidence, including the video recording of the ERISP, confirms that the accused was fully informed of his right to silence, that throughout the ERISP he had the benefit of a competent interpreter. Mr. Terracini, SC. stated that he did not suggest that there was any impropriety attaching to the conduct of any police officer concerning the ERISP. The video recording itself displays the accused responding with apparent understanding and without any apparent difficulty in understanding what was put to him through the interpreter. There were no questions put by the accused asking for questions to be repeated or explained to him. 16 I am satisfied that the accused participated in the interview on a voluntary basis and that he had a good understanding of statements made to him. I am satisfied that the interpreter faithfully interpreted throughout the ERISP. I accept her evidence and that of Inspector Bailey that no statement was made by anyone to the effect that the accused had to participate in the ERISP. 17 I find that the ERISP is not inadmissible by reason of any form of compulsion or by reason of any misunderstanding on the part of the accused. I find that he voluntarily participated in the ERISP after he received a caution and advice as to his right to silence. ********** 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.