Cho v The Queen B46/2001 [2002] HCATrans 320 (26 June 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B46 of 2001

B e t w e e n -

KWOK GEIN CHO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 26 JUNE 2002, AT 4.07 PM

Copyright in the High Court of Australia

MR C.E.K. HAMPSON, QC: If it please the Court, I appear for the applicant. (instructed by Nyst Lawyers)

MS L.J. CLARE: I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

MR HAMPSON: The Court already has the application book from which it will have seen that what is in issue here is a confession that was set up at the trial as a voluntary confession having been made by the applicant for special leave.

GUMMOW J: Will you please leave the Bar table.

(Speaking to Ms Chen from previous case)

I will take a short adjournment.

AT 4.08 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.10 PM:

GUMMOW J: Yes, Mr Hampson, please start again.

MR HAMPSON: If the Court pleases. The Court will have seen that there have been two judicial considerations of this matter, one by Mr Justice Byrne on a pre-trial application as on a voir dire to exclude the confession, that is under section 592A of the Criminal Code, and secondly, in the Court of Appeal, and I will turn to those considerations shortly later, but they are set out fully in the application book in argument.

What was at issue was a voluntary confession, and a voluntary confession, of course, in a criminal matter is admissible at common law, the onus being on the prosecution to prove that it is voluntary. To prove it is voluntary incorporates a number of concepts, namely that the confessor understood the statements that were being made to him; that he understood the questions that were being posed of him and that he replied that his replies were able, accurately, to communicate what he intended to say to the person to whom he is said to have confessed.

Because of those three requirements there will be some cases, and they are usually cases where there is a language difficulty, that an interpreter might be necessary and, for example, in the cases that have been given to the Court there is a decision of Sir Stanley Burbury in Contenanza and the two Victorian decisions in Li and Nguyen, where those things, in fact, occurred. There were comments there that there should be an interpreter obtained where there was doubt for the protection, it was said, of the policeman as well as the person being interrogated and that represents the common law position.

Now, in the present case, no interpreter was present and the trial judge and the Court of Appeal expressed the opinion that there was no unfairness in the taking of the confession. However, that is really, in our submission, beside the point, or it is a secondary point because section 260 of the Police Powers and Responsibilities Act 2000 , which replaces a former section, 101 - same text. That, in our submission, gives the accused a new right; gives a person who is being questioned a new right which the common law did not recognise. Section 260 is the right to interpreter:

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.

That provision sits in a part of the Act which starts off with the Part 3 "Safeguards ensuring the rights of and fairness to persons questioned for indictable offences".

GUMMOW J: Now, what do you say, Mr Hampson, about what was said in the Court of Appeal on section 260 at paragraph [7] of the reasons there on page 46 of the application book?

MR HAMPSON: About section 8?

GUMMOW J: Section 260.

MR HAMPSON: Sorry, on my 46 in the application book, I have paragraph [7]:

Section 8 provides that the Act - - -

GUMMOW J: Yes, it is the last sentence.

MR HAMPSON: The last sentence, thank you:

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 -

Well, it is my submission that the court really put it round the wrong way there; that where you had a statutory provision such as this, that should be looked at first, and by relying on section 8 to say what does the common law say about the matter and if you reach a view on the common law, it is, strictly speaking, impossible to reach any different view on the statute and that is what the court did there.

Now, in my submission, the proper approach is you would look at section 260 first and say what is that designed to do and the answer to the question of whether the confession can be admitted, whether it is voluntarily at common law or whether, in fact, it survives such tests as Bunning v Cross might require it to surmount, can be looked at then. But the attitude that the court took here was really saying section 260 does not add anything to the position unless we, in fact, find that the statement is not admissible at common law and then section 260 does not matter, or if we find it is admissible at common law, then again section 260 does not matter. But section 260, clearly, has been put in the statute. The position and the like shows that as to give a right to the person being interrogated. That is why we say that the Court should look at that first.

GUMMOW J: The Court of Appeal came back to it on page 50 in the last paragraph of their judgment, paragraph [29], and what they said, again, there was that 260 had been "subsumed . . . into the broader" questions of "unfairness".

MR HAMPSON: Exactly. That is exactly what it is submitted, your Honour. If you approach it that way that will always inevitably be the result, but that was not the intention of the legislature surely when it was stating that it was imposing new rights protecting persons being questioned. That is why, it is our submission, that the correct way is to look at that first; to look at the new statutory right and see how far that takes one and if it does not answer the question of the confession being admissible or not, then one looks at the common law position.

It is important to note that section 260 says that the policeman must not start questioning, in effect, unless the policeman is absent of a reasonable suspicion of two things; first, that the suspect is unable to speak English "with reasonable fluency", and secondly, that the ability is because of his "inadequate knowledge" of English, "or a physical disability".

Now, it is not a case of being able to speak broken English or the possibility of communicating or getting by or something of that kind. The provision is an ability to speak English "with reasonable fluency", and they are the three aspects of communication that I earlier referred to; understanding statements made and questions asked and being able to reply to those must be done at a standard which is of reasonable fluency.

None of the judges, in fact, paid any attention to that, what I might call, higher standard because they were talking in terms of whether or not the person could be understood and the expression was - was described what they saw on the video of the interview as being broken English. Now, broken English is something that is less than reasonable fluency, particularly when one is dealing with concepts such as a right to remain silent, a right not to answer questions and so on.

So we would submit that one would start, the Court should start, with looking at that embargo against police questioning unless the policeman is free of a reasonable suspicion to those effects and reasonable suspicion was another matter that the court was speaking of it as being a subjective test; something that was subjective and not objective.

This was particularly clear in the Court of Appeal in the decision of Mr Justice Mackenzie and I could take the Court to that. In paragraph [23] on page 49:

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.

Now, with the greatest respect, we would say that is not so. The law books are full of cases where statutes speak of matters being reasonably suspected, or a reasonable suspicion and they are construed objectively. One of the recent ones in this Court we have given as George v Rocket and George v Rocket itself followed a much older one, Powell v Lenthall, and I just refer to that only for the quotation from Justices Dixon and Rich saying how difficult it was to create a definition to make:

any nice definition of the precise stages which the mind must have travelled from complete incredulity to comfortable belief before its condition answers the description "reasonable suspicion".

It was shown in George v Rocket the number of occasions on which the Court has, in fact, examined the suspicion to see whether there was any factual basis at all that could give rise to it, and the difficulty that the Court believed it saw here is really more apparent than real because if, in fact, the person being interviewed speaks only broken English it is clear that any reasonable person will have a reasonable suspicion that he is unable to speak English with reasonable fluency.

So there is no greater difficulty than that and the court really exaggerated the problem that would exist. Indeed, Mr Justice Mackenzie said if, in fact, the suspicion was too readily entered into, the only hardship that would occur would be that an interpreter might be obtained unnecessarily. That seems a small price to pay for the situation that is facing the questioner and is facing the person being questioned in light of the statement in 260 that he is not to start questioning unless, in fact, he is free of a reasonable suspicion that the person is unable to speak fluently in English.

Now, section 8 itself does not provide that the statutory right can be circumvented when the common law gives a lesser right, perhaps, by relying on the common law. It does not suggest that at all. Section 8 is, in fact, merely a section which keeps, as one might say, the common law open:

This act does not affect the Common Law under which a court in a criminal proceeding may exclude evidence of the exercise of its discretion.

So, in other words, the two rights, if one likes to add them that way, whatever rights the person has at common law and the rights that he has as a result of section 260 are not abrogated in the sense that the common law right disappears. One might, perhaps, think of some sort of case where section 260 could survive and a confession might be able to be admitted under it, but the common law for some reason would strike it down. It is not readily apparent how that would be so because it does seem that there is a superior protection provided by section 260.

The point is, once the suspicion is formed and it would form as soon as the broken English nature of the linguistic or English linguistic ability of the person being questioned exhibited itself, there is to be no start in the questioning. The questioning does not start until the appropriate interpreter is made available.

If one then got to the stage of examining that and saying, "Yes, the police went ahead. They did have a suspicion, they must have had a suspicion, because the man could only speak broken English", so the result is that they have obtained a voluntary confession because we, looking at it now, at the videotape of the matter, we think he was voluntary in giving his confession; we think that he was speaking broken English and he did understand it, but it was obtained, really, unlawfully in those circumstances because there must have been a suspicion.

The question then comes, really, to an evaluation on the Bunning v Cross situation and the material would be all one way. The material would be, when you did the competing exercise there, you would have to say, "Here's a right against self-incrimination", because that is what it is, "given to a potential witness whose ability to speak is limited. He can't speak proficiently in the English language. He can't speak fluently in the English language" and if the police so easily, having formed an opinion to that effect, that he is speaking only broken English, if they go ahead and question him, they could so easily have waited - in a case here where there is no suggestion of any urgency. They had him in custody at half past one in the morning and the interviews went right through till, I think it was some time after five in the morning; no urgency, no real reason at all that the balancing factors would come down in his favour and that the confession should have, therefore, been excluded.

We would submit that the matter has been looked at too easily by the courts on the basis of saying, for example, as Mr Justice Byrne said, "Having seen the interview, I don't think, even if he'd had an interpreter or solicitor there he would have refused to answer the questions or he would have answered them any differently." With the greatest respect, that really is speculation. If the statute says there should have been an interpreter there, and one was not, there was none there, it is not appropriate to be speculating as to what he may or may not have done if, in fact, the interpreter was there as the Act required.

We have set the reasons why we say it is a special appeal matter elsewhere, of course, in writing. We rely on it, of course. I do not know that there is any other matter that we will particularly rely on, but we do submit that section 260 is a very important section along with the other sections that occur at that part of the Act and the consideration that the Court of Appeal has given it, in our submission, should be reviewed.

GUMMOW J: Yes, thank you, Mr Hampson. We will take a short adjournment.

AT 4.31 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.34 PM:

GUMMOW J: We do not need to call on you, Ms Clare.

The Court of Appeal was not persuaded that there had been any error in the conclusion, but it had not been shown to be unfair to admit the record of interview into evidence. Further, with respect to the reliance placed upon section 260 of the Police Powers and Responsibilities Act 2000 (Queensland) there are indications that comprehension of the English language is sufficient for the purposes of that provision.

It follows that what is sought to be challenged in this Court are findings upon particular evidence. This is, therefore, not an appropriate case for the consideration of the wider issues canvassed in part V of the applicant's written submissions and developed by Mr Hampson in his oral address.

We should, however, add that the case against the applicant was a strong one. A person answering his description was seen running in the vicinity of where the attack occurred upon the victim and the applicant was found by a police officer's dog shortly after the attack near the river hiding in bush.

For these reasons, the application for special leave to appeal is refused.

We will take a short adjournment to reconstitute.

AT 4.34 PM THE MATTER WAS CONCLUDED