DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application to exclude evidence from the trial of the applicant, Yung-Hsin Lin on a charge of dangerous operation of a vehicle causing grievous bodily harm while adversely affected by an intoxicating substance. The evidence that is sought to be excluded comprises a record of an interview conducted by a police officer with the applicant on 19 April 2003, commencing at 8:46 am.

2. [2]
   The facts relating to this matter may be briefly stated. On 19 April 2003, at a time shortly before 3:30 am, a motor vehicle driven by the applicant collided with a taxi in Salerno Street, Isle of Capri. The Crown will allege that the applicant said to a witness “don’t call the police … I need to call my brother and get him here so that he can tell the police that he was driving.” The taxi driver was badly injured as a result of the collision.

3. [3]
   The applicant underwent a road-side breath test at the scene and subsequently was conveyed to a police station for a proper breath analysis which resulted in a reading of 0.119% at 5:21 am. A doctor has calculated the applicant’s blood alcohol concentration at 3:30 am at approximately 0.15%.

4. [4]
   The weather was fine, the road surface dry and no vehicle defects were discovered which may have contributed to the incident. Salerno Street carries two lanes of both east and west-bound traffic. Marks located on the road surface, it will be alleged, indicated that the collision occurred in the lane in which the taxi was travelling. Thus, the applicant’s motor vehicle crossed double white centre lines into the outside east-bound lane prior to the collision. The force of the impact caused the taxi to rotate approximately 180 degrees and to come to rest on the nature strip.

5. [5]
   Constable Clive Cust conducted an interview with the applicant at the Coomera Police Station on 19 April 2003, commencing at 8:46 am and concluding at 9:49 am. That interview was electronically recorded and video and audio tapes were produced. A transcript of the interview has been prepared and provided to the parties.

6. [6]
   It is submitted on behalf of the applicant that the interview is punctuated with:

1. (a)
   inappropriate responses to simple questions;

2. (b)
   indistinct phrases;

3. (c)
   inappropriate phraseology; and

4. (d)
   inconsistent responses to both simple and uncontentious questions.

7. [7]
   Accordingly, it is submitted, the applicant’s English was so poor that any of his responses to the questions of the police officer are unreliable and should consequently be excluded in the exercise of the court’s discretion. Further, or in the alternative, it is submitted that as the applicant’s understanding of English was so poor, he could not have fully understood the warning that was given to him, and as such, all of the record was not a voluntary choice to speak or remain silent and should be excluded as a matter of law.

8. [8]
   Section 258 of the Police Powers and Responsibilities Act 2000 (“the Act”) deals with the cautioning of persons.  The section relevantly provides as follows:

“(1) A police officer must, before a relevant person is questioned, caution the person in the way required under the responsibilities code.

(2) The caution must be given in, or translated into, a language in which the person is able to communicate with reasonable fluency, but need not be given in writing unless the person can not hear adequately.

(3) If the police officer reasonably suspects the person does not understand the caution, the officer may ask the person to explain the meaning of the caution in his or her own words.

(4) If necessary, the police officer must further explain the caution.

…”

9. [9]
   The dictionary in Schedule 4 to the Act defines the term “reasonably suspects” as “suspects on grounds that are reasonable in the circumstances.” The dictionary in Schedule 4 to the Act does not define “fluency” or “reasonable fluency.”

10. [10]
    Section 37 of Schedule 10 of the Police Powers and Responsibilities Regulation 2000 provides that:

“(1) A police officer must caution the person in a way that substantially complies with the following:

‘Before I ask you any questions I must tell you that you have the right to remain silent.  This means you do not have to say anything, answer any question or make any statement unless you wish to do so.  However, if you do say something or make a statement, it may later be used as evidence.  Do you understand?’”

11. [11]
    The right to an interpreter is provided by section 260 of the Act:

“(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. (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.

…”

12. [12]
    A “relevant person” is defined in section 246 of the Act as a “person […] in the company of a police officer for the purpose of being questioned as a suspect about his or her involvement in the commission of an indictable offence.”

13. [13]
    Although the word “fluency” is not defined in the Act or Regulation made pursuant to the Act, the New Shorter Oxford English Dictionary [Clarendon Press 1993] defines the word in Volume I page 983 as “a smooth and easy flow (of words…); ready utterance; ease and readiness in speech etc.” The word “fluent” is defined by the same authority as “articulate, expressing oneself quickly and easily; esp able to speak a (specified) foreign language easily and without hesitation … of speech, style etc: flowing easily and readily; of language: used with skill esp (of a foreign language) spoken with facility.”

14. [14]
    When construing the term “reasonable fluency,” it is appropriate to do so in the light of all relevant circumstances. These should be taken to include the circumstances surrounding the interview such as time, the possible effects of tiredness and consumption of alcohol and the manner of questioning by the interviewing police officer. I note that the interview commenced at 8:46 am on 19 April 2003 – that is approximately three and a quarter hours after the incident occurred. According to the applicant, he had gone to the Shogun restaurant for dinner at approximately 11:30 pm before continuing on to Shooters nightclub in Surfers Paradise at 1:00 am. Again, according to the applicant, he consumed “a couple of glasses of wine” at the restaurant, and “nearly two beers” (Light Ice, bottles), at the nightclub before leaving the nightclub at approximately 3:00 am. The applicant walked from Shooters to the car park at the ANA Hotel to pick up his car which he drove to the Isle of Capri where the collision occurred.

15. [15]
    There is no complaint made concerning the condition of the applicant (either in relation to alcohol or tiredness) at the time he was interviewed.

16. [16]
    The manner in which the questions were asked during the interview by Constable Cust is best described as measured. He spoke slowly and very distinctly throughout the interview. No complaint could fairly be levelled at the police officer in relation to his diction, speed of speech or clarity of expression.

17. [17]
    Prior to the warning, which appears at the top of p 6 of the transcript of the interview, the applicant provided details of his personal particulars in response to questions. His responses appear rational and responsive to the questions. Thus, we know his name, another name by which he is known, the time at which the interview commenced, the correct spelling of his name, his date of birth, his place of birth, his age, his address and telephone number, and his mobile telephone number.

18. [18]
    There follows some conversation with the applicant’s brother who was present at the request of the applicant throughout the interview. The police officer then continued the interview as recorded in the transcript:

“… Our conversation this morning will take the form of a taped record of interview, which rather than writing it down, we talk into the microphone, and it’s recorded on the electronic device.  All right?  At the end of the interview, you’ll get a copy of the tape to take with you.  All right?  Do you understand the procedures?--Yeah.

All right.  For the purpose of clarity and later identification of whom is speaking, would you please speak clearly and do not speak when someone else is speaking.  Also, do not answer by nodding or shaking your head.  You need to say ‘yes’ or ‘no’.  Please speak your answers – do you understand?--Yeah.”

19. [19]
    The interview proceeded with the applicant naming and spelling the city in Taiwan in which he had been born, and then stating that he was a full time student at Bond University. He informed the officer when asked if he had any trouble reading or writing the English language: “A little bit. No.” The applicant then confirmed that he was single and (after some brief explanation) that his next-of-kin was his brother. The warning was then administered in the following manner:

“Okay.  All right. I now intend to ask you some questions in relation to the manner of your driving this morning, um, which in my first indication would be a dangerous operation of a motor vehicle, a dangerous driving offence.  Before I ask you any questions, I must inform you that you have the right to remain silent.  This means that you do not have to say anything or answer any questions, make any statement unless you wish to do so, however, if you do say something or make any statement it may be later used in evidence.  Do you fully understand?--Yeah.

You also have the right to speak to a friend or relative and also to a lawyer and inform that person where you are and ask that person to be present during questioning.  Do you understand that?—[Indistinct].

And that’s why I gave you the chance this morning, if you wanted to bring your brother with you; all right?  So, you’re happy to keep going ?—[Indistinct].

All right.  All right.  If you wish to speak to any of these people, I’ll delay questioning for a reasonable time for you to do so.  Is there anyone you wish to speak to at this point in time ?--Sorry.

Is there anyone else you wanted to have here or talk to?--No.”

20. [20]
    Some observations may be made in relation to the interview thus far. Firstly, notwithstanding the indistinct responses to the questions concerning the applicant’s right to have a friend, relative or lawyer present during questioning, I am satisfied that the responses were not indicative of a lack of understanding on the part of the applicant. Secondly, there are numerous instances throughout the interview where the transcript indicates an indistinct response to a question, but where the response, in fact, is audible and discernible.

21. [21]
    At the hearing of this application Constable Cust, the police officer who conducted the interview with the applicant, gave oral evidence. He stated that he found the applicant had a satisfactory command of the English language to enable him to understand the questions being put to him. That view did not change throughout the interview.

22. [22]
    In cross-examination, constable Cust agreed that the applicant spoke with an accent and it was obvious that English was not his native tongue. The applicant was not asked to explain his answer to the question “Do you have any trouble reading or writing the English language?--A little bit. No,” because Cust was quite happy to that point that the applicant understood what he was being asked. I note in this regard that there was no requirement of the applicant during the interview to read or write anything in the English language. In response to the suggestion that an interpreter should have been present during the interview, Constable Cust re-affirmed that “I was quite confident that he understood sufficient English to be able to answer my questions.”

23. [23]
    Notwithstanding his confidence with regard to the applicant’s ability to understand the questions he was being asked, Constable Cust was prepared to concede that to some extent the applicant had difficulty in explaining how the accident happened. Where a question had to be re-phrased, the applicant may not have understood exactly what he was being asked.

24. [24]
    The applicant gave evidence before me with the assistance of an interpreter available to him as required. Mr Lin stated that he came to live in Australia in July 2000. He attended an English course at Griffith University for 19 weeks between July and December of 2000. He then studied at the Language School at Bond University for 14 weeks prior to commencing a degree at that university. Mr Lin agreed that there were English-speaking students in his classes with whom he worked on group projects. The applicant (through the interpreter) claimed that during the interview he indicated to the police officer only on some occasions when he did not understand a question. In particular, Mr Lin claimed (rather unconvincingly, in my view) that when he was told that he did not have to say anything or answer any questions, he believed he had to answer every question. I am unable to accept his evidence in this regard.

25. [25]
    I note that in his affidavit (filed by leave at the hearing of this application) Mr Lin states that up until the incident on 19 April 2003, he had never had any dealings with the police anywhere. In paragraph 39 of his affidavit he states:

“I believed that I was bound to answer all the questions posed to me by the members of the Queensland Police Service (‘QPS’).  I did not understand the warnings given to me by the members of the Queensland Police Service nor did I understand that I had a right to remain silent during my interviews with the QPS.”

26. [26]
    I note that the applicant’s affidavit is silent as to the reason why he agreed that he did understand that he had such a right when the contrary was the case.

27. [27]
    Mr Murakami (the applicant’s solicitor) and Mr Sim (translator) have both sworn affidavits in relation to their observations of the applicant’s capacity to converse in English. Mr Murakami found “that it was very difficult to understand and converse with him in English.” Mr Sim recalls “that his grasp of English was poor.”

28. [28]
    It is submitted on behalf of the applicant that the evidence tends to demonstrate an insufficient understanding of spoken English on the part of the applicant such that he is unable to respond properly and appropriately to the questions asked of him. Counsel for the applicant submits that the situation in this case is analogous to that in R v Li & Anor [1993] 2VR 80 where Coldrey J at p 83 stated:

“In my view, the accused at the time of the interview possessed a basic ability to speak and comprehend English.  It was an ability that enabled him to both describe events and to express feelings and states of mind in relatively simple terms.  However, the accused’s capacity to understand and articulate abstract concepts is not manifest.”

29. [29]
    In ruling the interview in Li to be inadmissible, Coldrey J had regard to the following matters:

• At the relevant time Li was 17 years and 4 months old;

• He had never had any previous contact with the police;

• According to evidence before the court, there was very little conversation between Li and the police at the house and prior to the conduct of the interview;

• No specific inquiries were made to establish the extent of his familiarity with the English language, although it was apparently believed that he spoke Timorese at home;

• The decision was taken to proceed with the interview without the assistance of an interpreter;

• On arrival at the police complex at about 7.50am Li was placed in the confines of an interview room and, apart from the provision of a drink, remained there for the ensuing two hours;

• This effect of this delay was said to have been to occasion stress and tension and to engender a feeling of helplessness in a person of Li’s age and background, isolated from contact with the outside world;

• That stress and tension was said to have been exemplified by the observable distress of Li during the period in which he was left alone during the course of the interview.

30. [30]
    In the instant case, no complaint is made in relation to any appreciable delay between Mr Lin’s arriving at the police station and the commencement of the interview. Furthermore, Mr Lin had the support of his brother who was present throughout the interview. There is nothing in the observable condition of Mr Lin during the interview to suggest that he was under any particular stress and tension as had been present in the case of Li.  Mr Lin, it will be recalled, was 21 years of age at the date of his interview.  Mr Lin had also engaged in some conversation with investigating police prior to his arrival at the police station for the formal interview.

31. [31]
    On the evidence before me there is nothing to suggest that the applicant would not have spoken to Constable Cust had an interpreter been sought. I am satisfied that the police officer who conducted the interview made it plain that Mr Lin was not obliged to answer questions and, notwithstanding Mr Lin’s evidence on the voir dire before me, I think it probable that Mr Lin understood that he was not obliged to answer questions.  Constable Cust also made it plain that Mr Lin was not only entitled to have a friend or relative present during questioning but that he could also have a lawyer informed of where he was and could also request the lawyer to be present during questioning.  There is nothing in the evidence to lead me to conclude that Mr Lin’s account of his actions on the night in question was unreliable.

32. [32]
    On the other hand, it cannot be denied that there are passages in the transcript of the interview where Mr Lin either had difficulty at first understanding questions asked of him or where he responded in poor English. The evidence suggests to my mind that Mr Lin’s capacity to understand English is somewhat greater than his ability to respond fluently. For example, at p 13 of the transcript of the interview, the following passage appears:

“All right.  And were there any other cars on the road at the time other than you and the white car?--This way?

Yes.  Going your way?--No.

And coming towards you, did you notice any other cars other than the taxi?--No.

When you pulled on the wheel, did you realise then that you’d lost control of the car?--Yeah.

And what did you try to do to regain control?--Try to pull it back.

And – and what happened?--Doesn’t work.”

33. [33]
    In my view the above passage demonstrates on the part of Mr Lin an understanding of the questions put to him and an ability to respond in a manner and at a level one would reasonably expect of a person of Mr Lin’s background and experience with mainstream Australian life. His responses are prompt and address the issues raised by the questions although they are not fulsome. Mr Lin’s understanding and command of spoken English were, I am satisfied, in general, sufficient for the level of communication required by the interview, albeit with some repetition or elaboration of questions.

34. [34]
    I accept that the common law rules relating to admission of evidence of inculpatory statements still apply notwithstanding the relevant provisions of the Police Powers and Responsibilities Act and that it remains within the court’s discretion to exclude inculpatory statements made by a person who so lacks fluency in English that it is unfair to rely on them (R v Cho [2001] QCA 196).  In my opinion, the limitations in Mr Lin’s ability to converse in the English language are not so critical as to warrant excluding the interview at his trial.  In particular, I am unable to accept the contentions of counsel for the applicant that Mr Lin’s English was so poor that any responses that he gives to the questions asked during the interview are unreliable and should consequently be excluded and that Mr Lin’s understanding of English was so poor he could not have fully understood the warning given to him and there was, accordingly, no voluntary choice to speak or remain silent.  There is no risk as existed in R v Mohamed (Ruling) [2004] VSC 408 that words spoken by Mr Lin during the interview might be misconstrued and unfairly so by a jury, to the extent that a jury may give them a different meaning to that which Mr Lin intended to convey during the interview.

35. [35]
    The application is, for these reasons, dismissed.