R v Cho[2001] QCA 196

SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ:   I have had the advantage of reading the reasons for judgment of Mackenzie J.  I agree, for the reasons His Honour gives, that the appeal should be dismissed.

2. WILLIAMS JA:  For the reasons given by Mackenzie J, I agree that this appeal should be dismissed.

3. MACKENZIE J:  This is an appeal against conviction of murder.  The ground of appeal essentially was that a video-taped record of interview should have been excluded had proper principles been applied by the judge of the Trial Division who conducted a hearing under s 592A of the Criminal Code.  Leave was given to amend the ground of appeal by particularising further the basic premise that the judge had erred in his interpretation of what was then s 101 of the Police Powers and Responsibilities Act 1992 (Qld) and is now s 260.  It will be more convenient, since any effect of this judgment will be prospective, to refer to the section as s 260. 

4. The provision is as follows:

"260(1)This section applies if a police officer reasonably suspects a relevant person is unable, because of inadequate knowledge of the English language or a physical disability, to speak with reasonable fluency in English.

(2)Before starting to question the person, the police officer must arrange for the presence of an interpreter and delay the questioning or investigation until the interpreter is present.

(3)... ."

5. It is in Pt 3 of the Act entitled "Safeguards ensuring the rights of and fairness to persons questioned for indictable offences". Section 4 sets out the purposes of the Act in the following terms:

"4The purposes of this Act are as follows-

1. to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law;

2. to provide powers necessary for effective modern policing and law enforcement;

3. to provide consistency in the nature and extent of the powers and responsibilities of police officers;

4. to standardise the way the powers and responsibilities of police officers are to be exercised;

5. to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act;

6. to enable the public to better understand the nature and extent of the powers and responsibilities of police officers."

6. Section 5 states that it is Parliament's intention that police officers should comply with the Act in exercising powers and performing responsibilities under it. It also states that for ensuring compliance with Parliament's intention a police officer who contravenes the Act may be dealt with as provided by law. The examples appended to the section refer to a range of sanctions from counselling to criminal prosecution. It therefore contemplates disciplinary and penal consequences if a police officer contravenes its provisions.

7. Section 8 provides that the Act does not affect the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion. The effect of this is that the common law rules relating to admission of evidence of inculpatory statements are still applicable, except to the extent that specific more stringent provisions such as those in s 263 to s 268 impose greater safeguards. It follows that in other cases, argument about the precise meaning of a particular section of the Act may be sterile if there are circumstances, irrespective of the final resolution of that question, which would enliven a common law discretion to exclude evidence. Section 260 is in that category since it is recognised that it is within the court's general discretion to exclude inculpatory statements by a person who is so lacking fluency in English that it is unfair to rely on them (R v Li [1993] 2 VR 80, 87-88).

8. In addition to construing s 260, the judge of the Trial Division considered a further submission that "exclusion was justified for a reason other than a suggested contravention of [s 260], namely to secure a fair trial". (Argument in the appeal also focussed on the discretionary ground). In his reasons he made a number of observations and findings with regard to this issue including the following:

• he was not persuaded the appellant would not have spoken to the police had an interpreter been sought;
• the police had made it plain more than once that the appellant was not obliged to answer questions;
• the police offered to provide an interpreter if he wished;
• they told him that they would rephrase or explain questions if he did not understand them;
• the appellant understood the warning, rejected the offer of an interpreter and appeared to comprehend the offer to rephrase or explain questions;
• he did not consider that the content of the responses to questions might have been different had an interpreter been provided;
• there was no evidence from the accused nor any justification for drawing an inference that things might have been different in that regard;
• there was no reason to suppose the appellant's account of his deeds and motives was unreliable;
• there was no evidence from the appellant, or an inference from the facts, that he did not know that his statements could be given in evidence.  Indeed, there was evidence that he had understood.

9. At the time of the offence the appellant had been living in Australia for about 13 years. Despite this, according to the record of interview he had had limited contact with mainstream Australian life. His work and recreational activities and his business affairs were conducted predominantly in Cantonese. He told the police that his ability to read and write English was "not very good" and that his ability to understand what English speaking Australians say to him was "not really good".

10. He did not give evidence on the voir dire but the record of interview suggests that while his English was far from perfect and fits the description of broken English he responded in a way that suggests he understood the questions and was able to give appropriate answers to the questions.  This is consistent with the conclusion formed by the judge of the Trial Division.

11. The appellant's submissions on this aspect of the matter are summarised succinctly in the amended ground 3 which is as follows:

"(3)That in all of the circumstances the challenged evidence should have been excluded because due to the accused lack of reasonable fluency in English:

1. unfairness accrued to the accused in the conduct of the interview:

2. the accused did not understand his rights particularly:

1. his right to remain silent; and

2. his right to a solicitor."

12. With respect to the right to remain silent a police officer explained the right to him. Before any substantive questions were asked he was asked for his understanding of the warning. He replied, "If I want to answer you I tell you". This was followed by "If I tell you the truth" and then an indistinct portion of tape.

13. The first quotation suggests that he understood he had a choice. If it might be suggested that doubt was cast on his understanding by the second quote such doubt was dispelled by a later passage after the tapes had been changed and the appellant was reminded of the warning and asked what it was. His reply included the words "If I didn't want to, you know, I didn't have to say anything".

14. I am satisfied that, having regard to this sequence of events, it has not been demonstrated that the appellant did not understand that he had the right to remain silent and that the judge of the Trial Division correctly decided that the record of interview should not be excluded on that ground.

15. Ground 3(b)(ii) of the amended notice of appeal raises the question whether the appellant did not understand his right to contact a solicitor and if he wished make arrangements for him to be present during the questioning. It is not apparent, since it is not mentioned in the judgment of the Trial Division's reasons, nor in that part of the transcript with which we were supplied, that this was argued below. However, it is convenient to note that s 249 imposes an obligation on a police officer, before he or she starts to question a suspect, to advise the suspect that he or she may telephone or speak to a lawyer and arrange or attempt to arrange for the lawyer to be present during the questioning. Before any questioning about the offence occurred the investigating officer told the appellant of his right to speak to a relative, friend or solicitor. The appellant said he wanted to speak to his wife.

16. Later, after the investigating officer had been to the scene of the killing, a limited number of questions were asked about cuts to the deceased, which the appellant answered by saying he had inflicted them and thrown the knife in the water. The investigating officer then said to him that he had the right to have a solicitor present during the interview. The appellant replied that he did not have a solicitor. The investigating officer said he could arrange one. The appellant said that he had no money to pay for a solicitor. The investigating officer observed that the offence was a serious one and that he should not be concerned about monetary issues. He informed the appellant again of his rights. It may be inferred from what appears to be repetition of the appellant's indistinct answer that he did not want a solicitor. The investigating officer once again stressed that he could arrange for a solicitor at no cost to the appellant. He repeated that statement and asked the appellant if he wished the police to contact a solicitor and have him present for the interview. The appellant said "No".

17. It is plain that the investigating officer pursued with some persistence the question whether the appellant wanted a solicitor to be contacted and present for the interview. It is plain from the fact that the appellant raised the question of paying that he knew what was being discussed. In view of his later statement, after it had been explained that a solicitor could be arranged without cost for him, he said that he did not want one, it is impossible to maintain that he did not understand his rights in that regard.

18. One other matter should be referred to. If the appellant was a suspect, as he in all probability was, at the time when the investigating officer returned from the scene of the killing, there may well have been a short period of non-compliance with s 249 by asking a limited number of questions about his knowledge of the incident before the explanation of the rights began. While the answers to those questions had a tendency to incriminate the appellant, since he admitted that he was the person who had used the knife, the fact that immediately after a detailed explanation of his rights he refused to have a solicitor present suggests that he would not have taken a different course had his rights been explained at the outset.

19. In all of the circumstances, had the matter been raised on the s 592A application there was no reason demonstrated for rejecting the record of interview on this ground. Overall, I am not persuaded that there was any error in the judge of the Trial Division's conclusion that it was not shown to be unfair to admit the record of interview into evidence.

20. In view of this conclusion on the basis of the common law discretion, it is strictly unnecessary to express a conclusion as to whether the construction placed on s 260 below is correct. However, since the interpretation of it may be of some practical consequence it is desirable to give it some consideration. The judge of the Trial Division concluded that there had been no contravention of s 260. The investigating officer and his corroborator denied forming a suspicion that the appellant was unable to speak with reasonable fluency in English because of inadequate knowledge of the English language. They gave evidence to the effect that they believed that the accused had sufficient fluency to cope reasonably well with the nature and the extent of the questions and to appreciate the contents of the warnings concerning his rights. The judge observed that it appeared from the recording that the accused made himself understood about matters, that the concepts with which he was dealing were uncomplicated, and that his comprehension and command of spoken English were, by and large, adequate for elementary communications, with occasional repetition or elaboration of questions.

21. The defence submissions had focused on the fact that in the last tape of the interview a lengthy series of questions was asked concerning the appellant's familiarity with the English language. The police officers denied that this was because of concerns over the adequacy of his command of English. Why the questions were asked was explained in the following way. The corroborating officer had had experience of speaking with aborigines. His dealings with them persuaded him that questions ought to be asked of suspects from such a background directed towards ascertaining their educational qualifications and the extent of their daily exposure to English. The investigating officer had not asked questions of these kinds, having been informed before the interview commenced by uniformed officers who had spoken to the accused at the scene that the appellant spoke English. Although this officer did not harbour any concerns he was persuaded by his corroborator to ask them "as a matter of prudence". The sequence of events tends to support this explanation and the judge of the Trial Division appears to have accepted it.

22. In any event the judge of the Trial Division construed s 260 as meaning that contravention of it did not occur unless the police officer reasonably formed the pertinent suspicion but failed to secure the services of an interpreter. He was influenced by the fact that penal consequences may flow against a police officer from contravention of it.

23. The fact that a person "reasonably suspects" a state of things is a common trigger for exercising a power. However, there are difficulties about the application of the concept if it is provided that an obligation of the kind in s 260 depends on the existence of a reasonable suspicion that the suspect is not fluent in English.

24. Suspicion is a subjective state of mind. A person may not suspect something even though there is strong evidence that it is so, or suspect something even though there is no objective evidence that it is so. Another person, confronted by apparently convincing evidence, may reasonably suspect something. The unsatisfactoriness of triggering an obligation on the basis that a person reasonably suspects something is apparent.

25. If a person obstinately rejects the possibility that a person does not understand English because he believes he is only pretending not to do so, it would be an odd result if there was no obligation because the person did not "reasonably suspect" lack of fluency. The practical consequence that in some cases a person who asserts, in the face of overwhelming evidence, that he did not suspect that the obvious was the case may be disbelieved is not a universal answer to the problem.

26. In a case where an officer unreasonably suspected that a person was not fluent in English, probably the only practical consequence would be that an interpreter would be obtained unnecessarily.

27. To construe "reasonably" as meaning "on reasonable grounds" or some similar phrase is unhelpful since existence of an actual suspicion is still necessary. The alternative approach of interpreting the provision to mean that the obligation to obtain an interpreter arises if there are reasonable grounds for suspecting lack of fluency requires transformation of what is expressed as a test based on a state of mind into an objective test. It also requires violence to be done to the language. To pitch the obligation as low as "has reason to suspect" would create a very low threshold.

28. One other aspect of s 260 calls for comment. If as below it is constructed as applying only to a case where, before any questioning at all has started, the investigating officer has formed a suspicion that the suspect was not reasonably fluent in English, the provision is very restricted. For my part, I would have concluded that the structure of the section supports a conclusion that once the relevant suspicion is formed, questioning cannot be continued until an interpreter is present. On this view once a requisite suspicion is formed, asking of questions after that point in time is, for the purposes of the section "starting" to question the suspect. The structure of the section suggests that it is to be read as meaning that starting questioning again without an interpreter being present once the belief is formed is prohibited.

29. It is desirable to clarify what the test is. In the present case, the precise meaning of the provision is not crucial. As stated above, the question of compliance or otherwise with s 260 was subsumed in this case into the broader discretion based on unfairness. For the reasons given above no reason has been demonstrated why the record of interview should not have been admitted. The appeal is dismissed.