District Court New South Wales Medium Neutral Citation: R v HS [2019] NSWDC 575 Hearing dates: 18, 19, 20, 23, and 24 September 2019 Date of orders: 24 September 2019 Decision date: 24 September 2019 Jurisdiction: Criminal Before: Montgomery DCJ Decision: (1) The ERISP is to be admitted into evidence at the trial on the Crown's tender; (2) The video of the forensic procedure is to be admitted into evidence at the trial on the Crown's tender; and (3) The DNA evidence obtained during the forensic procedure on 20 January 2018 is to be admitted at the trial on the Crown's tender. Note: "on the Crown's tender" are not words implying an obligation upon the Crown to proceed other than as it would choose to do. Catchwords: Evidence: admissibility of ERISP – caution – vulnerable person – person of a non-English speaking background- right to interpreter Legislation Cited: Crimes (Forensic Procedures) Act 2000 (NSW) Evidence Act 1995 (NSW) ss 138, 139(3) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 53, 112(1), 123(8), 128(1) Law Enforcement (Powers and Responsibilities) Regulation 2016 r 28 Crimes Forensic Procedure Act 2000 (NSW) ss 18(1)(b), 20(c), 20(e), Cases Cited: R v Lamb [2002] NSWSC 357 R v Phung and Huynh [2001] NSWSC 115 R v Deng [2001] NSWCCA 153 KC v Sanger [2012] NSWSC 98 Category: Procedural and other rulings Parties: The Crown HS (accused) Representation: Counsel: Ms M Heywood (Crown Solicitor-Advocate) Mr M Licha (Defence) Solicitors: ODPP (Crown) Pannu Lawyers (Defence) File Number(s): 2018/020918 Publication restriction: Non-publication and suppression of any matter identifying or which is likely to lead to identification of the complainant Judgment On VOIR DIRE 1 1. These proceedings commenced on 18 September 2019 and following evidence, submissions in Voir Dire 1 completed yesterday, 23 September 2019. In accordance with the preferred course discussed and agreed with counsel on Thursday or Friday of last week I now give reasons for my judgment on the voir dire prior to empanelment of the jury. 2. As was then arranged, the trial is to commence before a jury and with interpreters in the Punjabi and Thai languages tomorrow Wednesday, 25 September 2019. For that reason and in keeping with the indication I gave to counsel yesterday, these reasons may be briefer than that which would be produced if more time were available. It will be seen, for instance, that I refer to statutory goalposts under LEPRA in relation to the definition of "person of non-English speaking background" in the context of the defendant's application, raising "vulnerable person", in submissions addressing both LEPRA and the Crimes (Forensic Procedures) Act 2000 (NSW)(the 'Act'). 3. I repeat that time for research of case law as would plainly be the normal course and desirable, has not been available. As a matter of statutory interpretation the State laws refer to and provide for a single and regularly exercised process in the criminal justice system of New South Wales and so far as is reasonably available on their construction, are to be read harmoniously. 4. The accused faces the following charges: 1. On 18 January 2018 at Bankstown in the State of New South Wales did assault [NAME SUPPRESSED] and at the time of the assault committed an act of indecency [NAME SUPPRESSED], s 61L Crimes Act 1900 (NSW), Law Part Code 285 and; 2. On 18 January 2018 at Bankstown in the State of New South Wales did detain [NAME SUPPRESSED] without her consent and with the intent of committing a serious indictable offence, namely, indecent assault, s 86(1)(a1) Crimes Act 1900 (NSW) Law Part Code 77849. 1. The voir dire was conducted on the assumption that Detective Senior Constable Trethewy had read the complainant's statement made to police on 19 January 2018 and that the complainant will give evidence in the trial in accordance with her statement (exhibit VD1A tab 1) that: 1. She was a classmate of the accused studying in a business college and that that was the basis of their becoming acquainted; 2. On 15 January 2018 the accused and the complainant exchanged mobile phone numbers in order to discuss a college assignment after which they messaged by WhatsApp and agreed to be friends; 3. At about 8:00pm on 18 January 2018, when the complainant finished work, the accused messaged her, informing that he was at Bankstown and asked if they could meet and in a telephone discussion they agreed to meet as "just friends"; 4. The complainant caught a train to Bankstown and refused the accused's request to meet at his house; 5. They met at the accused's car in a car park at around 11:05pm and the complainant sat in his car with the door open initially; 6. Saying that if the door did not close the car light would remain lit, the accused reached over the complainant to the passenger side door with his right hand and pulled it shut. She heard "an automatic locking sound"; 7. They commenced talking about the college assignment after which the complainant stated that she should go home because she had to work early; 8. The accused offered to drive the complainant home, which offer she refused and on his request she showed him on the map on her mobile phone the 15 minute walk for her to home; 9. The accused suddenly pushed the complainant hard with his right hand on her chest against the door and seat, leant his body on her, grabbed her face with both hands and kissed her very hard on the lips; 10. The accused slapped the complainant's mobile phone from her hand and she slapped him with both her hands, resulting in his letting her go briefly, at which time the complainant tried to open the passenger side door; 11. The complainant said to the accused, "What you do? Why you do this? I need to call police. I need to call a friend," to which the accused responded that she could not call anyone and he snatched her mobile phone out of her hand and threw it into the back of the car; 12. The complainant reached back to pick up her mobile phone and then tried to unlock the door to exit the car, stating that she was going to call the police; 13. The accused grabbed her wrists with both hands and put his knees on her wrists so that he was sitting on her lap facing her. She felt her mouth rub against his shirt, wiping off lipstick. He snatched her phone from her hands again and threw it further back on the seat so that she could not reach it. He reached down and put the seat back so that she was laying down. She could hear the sound of him untying the drawstrings on his track pants and felt the back of his right hand on her stomach. She felt his knuckles rubbing just above her vagina. She could not see how far his pants came down. She felt him rub his right hand up her leg across her inner thigh on her vagina and felt him try to take her leggings off. He grabbed the waistband of her pants and she felt his fingers scrape her bare skin as he reached in her pants and he gave it a big tug, trying to rip them off her. She screamed because she believed he was trying to rip her pants off to rape her; 14. On her inquiry as to why he was doing these things the accused said, "I know you want, I know you want. I want too. I can do for you" to which the complainant said, "I don't, I want to go home"; 15. At about this time another vehicle parked nearby and the complainant was able to unlock the door and open it a little in a course to leave the vehicle but the accused drove away quickly, having told her not to get out. He said that he would drive her home; 16. Using the complainant's mobile phone which he took from her, the accused navigated toward her home and as he slowed down near an intersection he threw the phone back at her and she unlocked the passenger door and got out of the car straightaway; and 17. The complainant noticed that her pants and shirt were wet and realised that the accused had ejaculated on her. 1. Counsel for the defence informed the Court that the accused's defence in the trial will be denial that the physical engagement was without consent and denial of detention of the complainant without her consent. OBJECTION TO ADMISSIBILITY OF ERISP, DNA EVIDENCE AND VIDEO OF FORENSIC PROCEDURE 1. The accused submits that his fundamental objection to the admission of the ERISP is that he was not effectively cautioned in compliance with ss 138 and 139(3) Evidence Act 1995 (NSW). 2. The accused submits that his fundamental objection to admission of the DNA evidence and of the video of the forensic procedure in addition to that he was not effectively cautioned, is that police failed to comply with the provisions of s 18(1)(b) and 20(c) and (e) of the Act. 3. At the outset it is appropriate to recognise the following: 1. The defence bears the onus of proof to the standard of balance of probabilities for exclusion of the evidence on the basis of breach of the requirements of the process and only in the event that the evidence was unlawfully or improperly obtained does the onus shift to the Crown to prove that there are discretionary considerations upon the basis of which the evidence should be admitted (paragraph 6 of the Crown's submissions, VD1 MFI A, and agreed to by counsel for the defence: transcript, page 5, line 16); 2. Detective Senior Constable Trethewy, who was the arresting officer, the interviewing officer at the ERISP, and is the Officer In Charge; Sergeant Waring, who was the Custody Manager at Bankstown Police Station; as well as Sergeant Page, Custody Manager who at 6am relieved Sergeant Waring, all gave evidence and it was not put to any of them that they were untruthful. The effect of their evidence given independently was that the accused did not require the assistance of an interpreter and that he understood the cautions given and that he understood the process they conducted, as it was, in the English language. See, for example, Constable Trethewy who was present throughout the ERISP and the forensic procedure at transcript p 30, line 12, p 58, line 45 and p 122, line 17; 3. The accused does not put that police acted deliberately or wilfully in disregard for the accused's civil rights. This was not put to the police witnesses in cross-examination and was not submitted; 4. The accused did not give evidence; 5. Whereas the heavily accented speech of the accused throughout the electronic audio reproduction heard in Court during the playing of the ERISP and of the video of the forensic procedure was in parts difficult to understand; I find that Detective Senior Constable Trethewy, Constable Barrett, Sergeant Waring, Constable Katsetis and Sergeant Page did not have - in the face to face engagement - significant difficulty of understanding words spoken by him. This was the oral testimony of Detective Senior Constable Trethewy, Sergeant Waring and Sergeant Page, and the recordings (exhibits VD1B and VD1C) display it; 6. Whereas Detective Senior Constable Trethewy read from the standard procedural forensic process documentation in a relatively monotone fashion whilst focusing on the page and Sergeant Page read from the standard documentation rapidly, for Detective Senior Constable Trethewy in the ERISP and in the video of the forensic procedure and for Sergeant Page in the video of the forensic procedure; it is to be acknowledged that each of them thereafter looked up to speak directly to the accused and can be seen to exercise obvious care during direct and repeated communication of question and answer with the accused in their endeavour to achieve his understanding of the cautions given and his rights. 7. I reject the substantial defence submission that repeat of cautions and of advice of rights and inquiries of the accused in those regards founds the conclusion that the accused did not understand and that it ought to have been apparent to police officers that he did not understand. This is because throughout the ERISP and in the video of the forensic procedure the accused is observed to state when he did not understand and to ask for things to be repeated or further explained when he felt the need to do so; as well as, in the instance of the video of the forensic procedure, to insist on his right to independent legal advice. CAUTIONS 1. 9 The accused was cautioned at the following steps in the process: 1. At 11.30pm on arrest at his home on 19 January 2018 by Detective Senior Constable Trethewy, 2. During the custody management process at Bankstown Police Station by Sergeant Waring which caution and process was witnessed by Constable Barrett, 3. At the commencement of and during ERISP conducted by Detective Senior Constable Trethewy in the presence of Constable Barrett in the interview room at Bankstown Police Station and, 4. At the commencement of the forensic procedure in the DNA room at Bankstown Police Station. 1. As to a) above, caution on arrest: Detective Senior Constable Trethewy was unshaken on his evidence that he was careful and methodical in providing the caution to the accused. The caution is set out in paragraph 6 of his statement made 17 April 2018: Exhibit VD1A, tab 2, see transcript page 20, line 22 to line 48 in chief and transcript page 40, line 7 to line 39 in cross‑examination. 2. There is no evidence to the contrary. I accept the evidence of Detective Senior Constable Trethewy. I note that it is consistent with my observation of him being careful to communicate the caution and to receive the accused's acknowledgment of his understanding of the caution during the ERISP as well as in the video of the forensic process. The caution at the time of the arrest was properly given and understood. 3. As to b) the custody management process: Sergeant Waring was an honest and frank witness. The reliability of his evidence was easily portrayed in his acknowledgment that the Custody Management Record - exhibit VD1A, tab 5 - was completed not by him but by Constable Barrett who assisted him in the custody management role, and most obviously, in his concession that he did not actually recall his reading of the Form 31 Summary of Part 9 of LEPRA, exhibit VD1A, tab 4. 4. Accordingly, it was Constable Barrett and not Sergeant Waring who entered on the Custody Management Record under the subheading "Vulnerability Assessment" at number 4, the answer, "No," to the question of whether or not the accused was a person "of a non‑English speaking background". Detective Senior Constable Trethewy when asked, had in earlier oral evidence stated his opinion that from his dealings with the accused he was not of the view on 19 and 20 January 2018, that the accused was a person to whom that description applied. 5. Whereas the Form 31 was signed by both Constable Barrett and Sergeant Waring, Sergeant Waring's evidence was that only he cautioned the accused, according to his standard practice. He gave unwavering evidence that he wrote "Yep" at the end of paragraphs 3 of the Form 31 as a record of the accused's affirmative answer to the question of whether or not he understood the caution there set out and immediately before read by him. It was his usual practice to do so. Sergeant Waring stated that if he was concerned that a person cautioned by him did not understand, he would cease the process and take the steps to obtain the assistance of an interpreter, but that did not occur on this occasion. 6. The Form 31 bears the signature of the accused acknowledging that it had been read to him and that he understood it. Sergeant Waring confirmed that he read beyond the signature, including the wording at the bottom of p 2 of the Form 31 as to investigation times and times which do not count. Immediately above the place identified in p 2 of the Form 31 as the marking of the signature of the accused by him, the following words are written, "Detained person - the information in this form has been read to me. I have also been given a copy of the form entitled 'Summary of pt 9 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) for detained persons.' I understand the information that I have been given." 7. In the ERISP the accused can be seen reading the Part 9 document when it is placed on the table before him and introduced by Detective Senior Constable Trethewy as the document previously provided. He looks down at it and appears to study it. He does not say that he cannot read it or that he has been unable to read it. He gives a confident acknowledgement of it. (See questions and answers 10 to 15 ERISP.) Having reviewed the Form 31, Sergeant Waring was satisfied that he had read and explained the process to the accused. (Transcript p 111 line 20.) Sergeant Waring said that he read the whole of the document, pausing at questions 3 and 8 to obtain responses from the accused, and that he read each of the subheadings. 8. When asked in cross-examination whether when he read the Form to the accused he thought to himself that the accused might not understand English well, Sergeant Waring answered, "No." (Transcript p 121 line 39.) When challenged in cross-examination about this practice of reading the document from beginning to end, he gave the frank but understandable answer, "I do not know how else I am required to read that document." (Transcript p 122 line 30.) 9. I note that para 2, near the commencement of the Form 31 provided in short and easily understandable plain English terms, "If you cannot speak English, I will get an interpreter to help you and the investigating police will wait until the interpreter gets here," and that question 13 provided for the accused that if he was someone of a non-English speaking background, that he had other rights, and there were other things that Sergeant Waring could do to help him. The paragraph included, "If you are such a person, you should tell me and I will tell you more about those things and what I will do to help you." These paragraphs were read to the accused by Sergeant Waring. 10. Sergeant Waring was the independent officer who attended at the conclusion of the ERISP at 2.54am. When he initially commenced to read the routine statements to the accused and the accused said, "Pardon?" (see at question and answer 338) Sergeant Waring, as shown on the video, looked up, made sure he had the attention and understanding of the accused, and explained the fairness check questions. One of those questions refers to threat, promise or offer of advantage. In Sergeant Waring's experience, that three-pronged question not infrequently required explanation to persons from all walks of life, including those who speak English as their first language. He did not consider the accused's question, "Pardon?" surprising for that reason. 11. He broke the enquiry down to its parts. The video plainly shows the care which he took and the accused's understanding in the answers he gave and that he had no complaints (ERISP questions and answers 338-348.) The ERISP permits the opportunity to be confident that Sergeant Waring, even when making routine enquiries of an accused, was of the practice of taking care to consider whether or not the person understood. He said that was his usual practice. I accept his evidence that he did not think the accused might not be comprehending during his cautioning and advice of rights to the accused. ERISP 1. Having considered the whole of the ERISP, and the evidence of Detective Senior Constable Trethewy, I have come to a view that I am satisfied that the accused well understood the caution and the following elements of the procedure in that respect: 1. that he was not required to say or do anything; 2. that he should answer only questions which he understood; 3. that anything he did say or do was being recorded; and 4. that the recording, of which he was plainly aware, could be used in court. 1. I am satisfied that the accused well understood that he had been arrested and was being interviewed by police in relation to two allegations of criminal conduct being "an indecent assault," and "detaining a female," as voiced on arrest by Detective Senior Constable Trethewy, or as expressed in the ERISP as "deprivation of liberty." Indeed, the accused asked, "Ah, which case is it?": ERISP question and answer 8. 2. The first seven minutes of the ERISP show that the Detective Senior Constable clearly spoke the caution and despite the accused having not spoken words expressing that he did not understand, the Detective Senior Constable repeated that the interview was being recorded and sought from the accused confirmation that the Custody Manager, Sergeant Waring, had read and explained the caution and Form 31 Summary informing the accused of his rights. Speaking carefully, the Detective Senior Constable obtained from the accused his clear and confident agreement that he had received the caution and had been informed of his rights: ERISP questions and answers 10-12. 3. When shown the Form 31 summary of Part 9, the accused looked carefully at it, confirmed his recognition of it, identified his signature and in a clear and confident manner expressed his response, "Yeah," confirming that he understood those rights: Questions and answers 12-14. 4. Question 15 is the question and answer given, following the accused having carefully looked at the document: "Q. Do you want to exercise any of them now, at the moment? A. No." 1. In questions and answers 16-25, the Detective Senior Constable, in response to the accused having shaken his head indicating the negative to a question of whether or not he understood that he did not have to say or do anything; repeated the caution in its parts in an obvious attempt to make sure of the accused's understanding. On the accused enquiring, "Ah, do anything?" the Detective Senior Constable clearly and properly informed the accused that he did not have to answer any of his questions. 2. In my view, the accused's question to the caution against "do" anything was an intelligent one. In oral testimony, the Detective Senior Constable said that he took from it that the accused might have been expressing a lack of understanding of the caution. On my view of the ERISP, the accused was making the intelligent enquiry of the limb of the caution about what might be considered the curious element of "do" anything. 3. As I drew this to counsel's attention during the course of the hearing of the application, I say "curious" because the setting was a police interview room where the engagement was obviously a speaking one: see in particular answer to question 17. 4. In my view, the Detective Senior Constable was entitled to understand the accused answers, "Okay," as expressions of the affirmative. It can be seen that the accused understood and was engaged in the process, particularly at question and answer 19: "Q. So, if I ask you a question that you don't want to answer, what would you say? A. If I understand so, I'll tell you answer." COMMAND OF ENGLISH FLUENCY. 1. I have reviewed the ERISP and considered the transcript of the ERISP carefully during this application. The accused's speech is heavily accented and at the end result of electronic media reproduction can be difficult in parts to understand in the courtroom. At the time of viewing the video of the forensic procedure, I drew to the attention of counsel the difficulty which I experienced understanding what the accused was saying. There is no transcript of the video of the forensic procedure. 2. As I later observed to counsel following repeated playing of the recordings, I found that my ear far better understood what the accused was saying during the electronic media reproduction. It is obvious from viewing the ERISP and separately from viewing the video recording of the forensic procedure, that the police officers, Detective Senior Constable Trethewy, Sergeant Waring and Sergeant Page, did not experience the same difficulty of understanding of his speech as did I sitting in the courtroom. This accords with the evidence given independently by each of them, to which I have referred that they did not experience difficulty with understanding the accused and did not consider that the processes of caution, interview and forensic procedure required the assistance of interpretation. Sergeant Waring and Detective Senior Constable Trethewy both denied being of the opinion that the accused was a person of non-English speaking background for the purposes of caution, interview and forensic process and I will return to that. 3. On the whole of the evidence I accept that the face to face engagement of communication with the accused experienced by the police provided them with much easier understanding of the accused's speech and a better opportunity to assess whether or not he would be assisted by interpretation in order to achieve the required fluency for those processes than was available to the Court on hearing the electronic media reproduction. 4. I observe that heavily accented speech does not equate to lack of clarity of understanding or of expression. 5. In coming to this conclusion I accept that the accused by his heavy accent and his English grammatical imperfection displayed that the English language was unlikely to be his first language. To expand on my observations that the ERISP and the transcript of it show as I have found above that the accused confidently and clearly expressed his understanding of the cautions given to him at the time of the interview and when he attended the reading of the Form 31 document: * He was able to give logical and responsive answers and to tell his version of the facts and events with the exception of an apparent difficulty understanding the word "ejaculation". He did however readily understand the description of sperm coming from his penis as that event when provided to him by Detective Senior Constable Trethewy. The accused readily conceded that he knew what "vagina" meant. * He answered, "Yeah, I do, yes" to Detective Senior Constable Trethewy's summary of his arrest and caution: questions and answers 42 to 44. He answered, "Yeah," and "Yes" to the further question that he was advised of his rights on arrival at Bankstown Police Station: questions and answers 46 to 47. * He was able to well describe his version of organising the meeting with the complainant and of their physical engagement: questions and answers 50 to 52, including the long and cogent description in the answer to Q52 in which he described where his hands were; his version of touching; describing the complainant was the promoter of their engagement and promoter of their hugging; her flirting; offer of a massage without a "happy ending"; holding and kissing; that he said to the complainant that they both needed to go home because he had to start work early; that he offered to drive her home following her suggestion that she travel by train; he was able to describe his position in the car whilst embracing the complainant, including with movement of his body matching that which he spoke; and he was able to describe his becoming erect as a normal reaction to the hugging. * He was able to deny the complainant's version when it was put and able to deny that his hand touched her vagina whilst providing the description of his penis rubbing against the upper leg of the complainant in a normal way for their embrace leading to his ejaculation: questions and answers 178 to 252. * After the complainant version was put to him he confirmed his sperm soaked his underpants and tracksuit pants which would have touched the complainant's clothing. * He was able to describe his driving the complainant home as a consensual act and not a detention, denying that she tried to get out and including that he told her to sit there so that he would drop her home rather than her having to get out and walk: questions and answers 275 to 290. RELEVANT STATUTORY PROVISIONS 1. Although I was not taken by either party to it, the expression "person of non‑English speaking background" is defined in s 3 LEPRA to mean "a person who is born in a country outside Australia and whose first language is not English". 2. Detective Senior Constable Trethewy said that the learned from a document received by him from the college that the accused was present in Australia on some kind of a visa. He did not know what kind. He was aware that the accused originated from India. Observation of the speech of the accused during the procedure of the ERISP and the video of the forensic procedure, does in my opinion show the accused as more probably than not a person whose first language was not English. For that reason he fell within the definition of a person of non-English speaking background. 3. I accept that the face to face spoken engagement did not cause the police to come to that view. Indeed, the accused displayed more than a working English speaking ability. He displayed an ability of competent comprehension and expression, in my opinion. However, this does not dissuade me from finding his presentation to be that of a person whose first language is not English. The evidence of Sergeant Waring is that after his reading the paragraph numbered 8 on the Form 31, he struck a line through it, which according to his normal practice, indicated the accused being informed of his right to speak to a consular official of the country of his citizenship did not result in his exercising that right. There is no other evidence on this point. I find that s 124 LEPRA, to which I was not taken by the parties, was complied with. 4. Section 128(1)(a) LEPRA, to which I was not referred by the parties, provides that the Custody Manager must arrange for an interpreter to be present for the person in connection with an investigative procedure in which the person is to participate if the Custody Manager has reasonable grounds for believing that the person is unable because of inadequate knowledge of the English language to communicate with reasonable fluency in English. For the reasons given I am satisfied that police reasonably believed that the accused's knowledge of English language was not inadequate for him to communicate with reasonable fluency in English. For that reason neither Sergeant Waring nor Sergeant Page were required to organise an interpreter. Page 182 of the New South Wales Police Force handbook to which I was referred by the defence does not cause me to change my opinion given my finding that the accused did communicate with reasonable fluency during the ERISP. 5. Because the accused was a person of non-English speaking background within the meaning of LEPRA Regulation 28 (1)(e) he was a vulnerable person subject to, for the purposes of the ERISP, Sergeant Waring and for the purposes of the forensic procedure, Sergeant Page reasonably believing him to be a person not falling within any of those categories listed in the Regulation. 6. It is a difficult assessment to determination whether those officers at the respective times of their involvement possessed their belief reasonably that the accused did not fall within the category of non-English speaking background. It is difficult because I have not had the opportunity of observing the accused give evidence in Court and therefore, am not possessed of the opportunity to observe the face to face communication experience which I have recognised was the better position enjoyed by police. 7. Section 112 (1)(c) LEPRA, to which the parties did not take me, provides that the regulations may make provision with respect to modification of Part 9 LEPRA. There is a positive duty to assist a vulnerable person in the exercise of his or her rights, R v Phung [2001] NSWSC 115. The accused was entitled to be advised in respect of his rights, R v Lamb [2002] NSWSC 357. 8. The unwavering testimony of Detective Senior Constable Trethewy and of Sergeant Waring - which I have observed to be corroborated by my observation of them during the ERISP - satisfies me that in fact the accused was advised of his rights. I am satisfied that he understood those rights and I repeat that he understood the cautions given and explained to him. 9. Specifically I am satisfied that rote reading of the Form 31 was not the limit of the provision of those cautions and advice but that Detective Senior Constable Trethewy and Sergeant Waring each satisfied the positive obligation on them to ensure that the accused, as a vulnerable person on my finding, did understand what was being said during the cautions and in regard to his rights. I am satisfied that they complied with the obligations stated in R v Phung and Huynh [2001] NSWSC 115 at paragraph 63. 10. The defence opposes admission of the ERISP pursuant to sections 138 and 139 (3) Evidence Act 1995 New South Wales. During the ERISP the accused did not seek the assistance of an Australian legal practitioner nor the presence of a support person. For the reasons given, in my opinion the communication standard observed from the ERISP recording, exhibit VD1B, with the assistance of the ERISP transcript, exhibit VD1A, tab 3, does not satisfy me on the balance of probabilities that the evidence was obtained in the course of questioning when police knew or ought reasonably to have known that the questioning was likely to be conducted in circumstances where the accused's ability to respond rationally and without disadvantage was likely to be substantially impaired by his ability to communicate in English and in circumstances of him being a person of non‑English speaking background: section 138(2). 11. Separately, the evidence satisfies me on the balance of probabilities that the ERISP was not obtained improperly or in contravention of Australian law pursuant to the provisions of sections 138(1)(a) and section 139(3). Section 139(3) provides that the caution must be given in or translated to a language in which the accused was able to communicate with reasonable fluency. This requirement of the law was the essential complaint concerning the caution process upon which the defence challenged admission of the ERISP. 12. My observations above, not just my opinion, that on the ERISP the accused appeared to understand the cautions and the advice as to his rights and, indeed, not just my observations that at the end of the ERISP the accused appeared to understand and give clear, affirmative responses to Sergeant Waring's questions checking the fairness of the ERISP, but also on the basis of my observations of the accused's ability to give his version of events and to respond to the complainant's version of events when put to him; satisfy me that during the ERISP he fitted the description of a person able to communicate in English with reasonable fluency. 13. In R v Deng [2001] NSWCCA 153 at paragraph 17 the Court observed the purposive intent of these provisions. I am satisfied that the statutory protection being to ensure the ability of the accused to understand the concept underlying the caution and the function of the caution and specifically his right to choose to speak or to remain silent as well as his other rights under Part 9 as explained to him on the Form 31, was satisfied. 14. I am satisfied that during the ERISP the accused appears to be, and was reasonably understood by police to be a person with reasonable fluency in English. VIDEO FORENSIC PROCESS AND FORENSIC EVIDENCE DNA. 1. Counsel for the defence informed the court that the accused concedes match of DNA taken from the complainant's clothing and the sample obtained from him by buccal swab during the video recorded forensic process. The defence submission of objection to the admission of the evidence of the recording and of the forensic DNA evidence was explained as based upon two issues: 1. that Sergeant Page did not properly satisfy herself of the terms of s 20(c) and (e) of the Crimes (Forensic Procedure) Act 2000 (NSW) before ordering the carrying out the non-intimate forensic DNA procedure on the accused whilst he was under arrest pursuant to the provisions of s 18(1)(c); and; 2. Sergeant Page did not properly satisfy herself that the accused had not consented before making the order for the carrying out of the non-intimate DNA forensic procedure as was required by her by s 18(1)(b) of that Act before making the order. 1. The accused concedes that the provisions of s 20(a)(b) and (d) were satisfied. 2. Underpinning the whole of the submission was the defence argument that at the time the elements of caution and the accused's rights were given to him, he was a "vulnerable person" because he was a person of non-English speaking background within the meaning of Reg 28 LEPRA, which should have been a "primary flag" as counsel for the defence called it, causing police to assist the accused by acquiring an interpreter. 3. Whilst the question of compliance with ss 18 and 20 of the Act requires separate determination; nevertheless, my opportunity to view the video of the forensic procedure, combined with my above observations of the accused's fluency in English are available to satisfy me that such concerns would not have been a "primary flag" as counsel for the defence labelled the accused's ability in English to be. Again, reg 28(e) LEPRA permits the Custody Manager to proceed as if the accused is not a vulnerable person if he or she reasonably believes the accused not to fall into any of the categories listed in the Regulation. 4. The forensic procedure commenced at 6.22am. At that time, Custody Manager, Sergeant Page had been on duty since 6am. Management of the accused's custody had been handed over from Sergeant Waring to her. She was not asked what was communicated to her in that handover, if anything, nor was Sergeant Waring. The Custody Management Record, exhibit VD1A tab 5, was available to her. I have considered the evidence of that period of events under the supervision of the Custody Manager, Sergeant Waring above, and arrived at the finding that whilst police believed the accused not to be a person of non-English speaking background and therefore not a vulnerable person, from my observation of the accused I have found him, in fact, to have been a vulnerable person on that basis. 5. I repeat, that in coming to that conclusion I have not been critical of individual police officers because I recognise the advantage that they enjoyed of the longer and better opportunity of assessing the accused's English language fluency, theirs being a face to face experience. I have found as a fact that the accused appreciated his rights including that he could ask for contact with or attendance of a friend, support person or lawyer. 6. Indeed, the video of the forensic process shows him to be carefully considering the explanation of his rights provided to him at the commencement of the process by Sergeant Page and Detective Senior Constable Trethewy. He is seen to silently contemplate. The sound production quality of the video is again plainly not equal for the purposes of understanding the accused's heavily accented speech as is observed to have been enjoyed by Sergeant Page and Detective Senior Constable Trethewy when speaking to him. 7. I alerted counsel to my observation that Sergeant Page's rote reading at a rapid pace of the legal documentation might have disadvantaged the accused's opportunity to fully understand it. I will come to it in more detail but in my opinion, as I described to counsel, police were overall "bending over backwards" to explain to the accused, cautions and his rights. 8. That the accused understood his rights from the course of the process is, in my opinion, undeniable because he did exercise them. He can be heard to speak his contemplation of speaking to a friend but not asking for that to be organised. Instead he asked to speak to a lawyer and as the chronology of events set out below shows, police permitted over two hours for that to occur. 9. Pursuant to section 123(8) LEPRA to which neither party took me - an investigative procedure is not to be deferred for more than two hours to allow the accused to consult with a friend, relative, guardian, independent person or Australian legal practitioner when the requirement is for that person to attend. Taken as a guide, that section implies that the time permitted by police, delaying the forensic investigation before proceeding, was reasonable. 10. The last point in the summary of events just spoken of by me is of some significance because as to the requirement under section 18(1)(b) upon which the defence primarily relies, the agreed position is that after the delay the accused did not express his consent nor state that he did not consent. 11. Finally, before leaving this summary I would add that prior to police putting the accused in contact with a lawyer for private conference he had, in fact, stated that he would go ahead with the procedure but Detective Senior Constable Trethewy, apparently on the observation of the accused's hesitation, reminded him of the advice that he could contact a lawyer. CHRONOLOGY OF EVENTS 1. 19 January 2018 at 11.30pm - arrest and caution at the home of the accused. 2. 20 January 2018 at 12.19am to 12.31am - Constable Barrett observed Sergeant Waring and Sergeant Waring did read the Form 31 Part 9 LEPRA document, exhibit VD1A, tab 4. Above, I accepted Sergeant Waring's evidence that he explained the caution and rights to the accused. The Custody Management Record, exhibit VD1A tab 5 includes Constable Barrett's entry from her observation, that the document was read and that the accused acknowledged it. 3. At 1:34am, accused entered the interview room and the ERISP was conducted by Detective Senior Constable Trethewy with the assistance of Constable Barrett. 4. At 2:54am, on conclusion of ERISP Sergeant Waring performed the fairness check. 5. At approximately 3:00am, Detective Senior Constable Trethewy commenced the forensic procedure with the accused by reading for a substantial period of perhaps 60 seconds from the forensic procedures information sheet. The accused displayed inability to understand reference to whether or not he was Aboriginal, indigenous or a Torres Strait Islander. He was offered the opportunity to speak to a legal practitioner of his choice. I informed the parties that I understood in this passage the accused to say words to the effect, "I don't understand" and refer to not having a lawyer. 6. He was told by Detective Senior Constable Trethewy that police can arrange a lawyer for free on the telephone. After some apparent contemplation the accused answered, as I informed the parties, words which I understood to be "Okay, no worries", informing Detective Senior Constable Trethewy that he would go ahead with the procedure. Whether or not I am precisely correct in my hearing of those words without the benefit of a transcript of the video of forensic procedure, I am in no doubt that the accused whilst appreciating that he was being asked to undergo a police forensic procedure, indicated his assent. When the process of obtaining a buccal swab, being the DNA procedure, was explained to him, he said words which I understood to be, "I don't understand". 7. At this point of the video one might be concerned that the accused following the information he provided during the ERISP and having heard the complainant's accusations put to him was hesitant to undergo a scientific procedure focused on his sperm. It is plain that Detective Senior Constable Trethewy took the cautious step, his believing according to his evidence, that the accused was understanding what was being communicated with him and not being sure of whether or not he wanted to speak to a lawyer and he having voiced contemplation that he might need to talk to a friend; of interrupting the procedure at 3:08am in order to facilitate the accused speaking to an Australian legal practitioner. 8. The interruption initially lasted from 3:08am till 5:38am, a time in excess of two hours. At its recommencement Detective Senior Constable Trethewy confirmed that the accused had spoken with a lawyer. The custody management record identifies this legal practitioner. 9. Again, the accused not having given evidence, the only evidence of the occurrence of his obtaining that consultation came from Detective Senior Constable Trethewy. His evidence was that probably because of the time of day there was difficulty in arranging for the lawyer to speak to the accused. Police waited for a lawyer to call back before proceeding. Police made calls to the legal practice and to a mobile phone number to achieve contact with the lawyer. The Custody Management Record entry is that the accused spoke with the lawyer between about 3:43am and 3:56am. On Detective Senior Constable Trethewy, who had remained away from the accused during his making of that phone call, noticing that the telephone handset had been put down, resumed the forensic procedure in the DNA room at 5.28am. The video shows the accused then again asking about a lawyer and the procedure is again interrupted for only about two minutes before resuming without any further reference to the accused speaking to a lawyer. 10. The Custody Management Record entry at 5.51am by Constable Katsetis is that Detective Senior Constable Trethewy had asked the accused whether he wanted to participate in the forensic procedure and that the accused responded that having already obtained legal advice he was unsure what to do. The accused did not provide a "yes" or "no" response to voluntarily participate in the forensic procedure. 11. At 6am, Sergeant Page commenced duty as Custody Manager. 12. At 6.22 am, Sergeant Page in rapid rote reading spoke the caution to the accused and informed him of his rights including that if he did not consent to the forensic procedure, she was satisfied of the requirements of s 20 of the Act and DNA sampling could be obtained by pulling hair from his body. 13. After the rapid rote reading it can be seen on the video of the forensic procedure that Sergeant Page and Detective Senior Constable Trethewy advised the accused of the caution. On Detective Senior Constable Trethewy reminding the accused of the cautions given, that he was not required to say or do anything and that which he said or did would be recorded, as had been the process during ERISP; the accused clearly answered in the affirmative his understanding. 14. Sergeant Page in relation to the question of consent acknowledged that when she explained to him the forensic procedure, he had asked if he could speak to his lawyer. She observed that he had already spoken to a lawyer, and that police had interrupted the procedure for a number of hours, and the accused had not made a decision to give consent or state that he did not consent: Transcript p 93 lines 40-45. She conceded that she repeated the information several times but denied difficulty of communication with the accused and acknowledged that had she observed such difficulty, she would have made enquiries to see if he required an interpreter: Transcript p 94 line 5-29. 15. She did not take those steps, however, because she did not believe that there were problems with communication: Transcript p 95 line 2. Sergeant Page agreed with the following proposition put during cross-examination (T p 97 line 7): "Q. The truth is he did not know what to do. That is the truth, yes? A. That is what it's saying." 1. Sergeant Page acknowledged that the accused was not responding but maintained that she did not believe that there were issues in communicating. In her answer given at transcript p 102 lines 38-39, Sergeant Page said, "I was having difficulty in getting him to say, 'Yes,' and he said, 'Yes' after Detective Senior Constable Trethewy explained it to him." That was in regard to the caution. At transcript p 103 line 37, Sergeant Page stated she was trying to make sure that the accused understood. At transcript p 104 line 43, Sergeant Page maintained that the accused expressed his understanding of the caution. 2. The whole of the evidence of Sergeant Page assessed with the opportunity of the video forensic evidence in my opinion leads to the conclusion that being aware that the procedure had been interrupted for the extensive time of in excess of three hours by 6.22am, and in circumstances of the accused having obtained independent legal advice; he remained unwilling to state whether he consented or that he did not consent, and in that case, with the opportunity to consider his options, he could not make a decision. He was unsure as to which answer to give. 3. Bearing in mind the goalpost for contemplation of time provided by s 128(3) LEPRA, in my opinion, the accused having not indicated that he consented or did not consent to the taking of the DNA sample satisfies me for the purposes of s 18(1)(b) that the accused had not consented. Further, given the efforts made by police to facilitate the accused's understanding of his rights, including by speaking to an independent lawyer, and the time permitted him to make his decision, in my opinion; in the taking of the DNA sample there was no failure to satisfy s 18(1)(b). The process was not undertaken and the sample not obtained improperly or in contravention of Australian law. 4. Counsel for the defence confirmed to the Court that his researches had not located a case for or against the proposition that after a time, consent or refusal of consent is deemed. It is not necessary, given the finding of fact which I have made, for me to decide or apply such a principle. 5. Given the central issue of the trial has been identified as consent, the nature of the intimate sexual activity and physical force are central to the factual matrix which the jury will have to determine. In my opinion, at the time, the process to obtain the defendant's DNA was conducted on reasonable grounds for the police to believe that it had potential to prove at least one of the elements of the offence in satisfaction of s 20(c) of the Act: KC v Sanger [2012] NSWSC 98 at [95] to [100]. In my opinion, the procedure was justified, in the circumstances, as required by s 20(e). 6. That in final closing submissions counsel for the defence briefly referred to other processes, such as application being made before a magistrate for the conduct of the procedure; in my opinion, does not answer the question of whether or not, at approximately 6.22am on 20 January 2018, Sergeant Page properly made the order under s 18 of the Act to proceed on the basis that the accused had not consented. I have found that basis to be established. I conclude that the order was properly made. ORDERS 1. The ERISP is to be admitted into evidence at the trial on the Crown's tender; 2. The video of the forensic procedure is to be admitted into evidence at the trial on the Crown's tender; and 3. The DNA evidence obtained during the forensic procedure on 20 January 2018 is to be admitted at the trial on the Crown's tender. Note: "on the Crown's tender" are not words implying an obligation upon the Crown to proceed other than as it would choose to do. ********** 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. Decision last updated: 17 October 2019