R v Lee[2006] QDC 100

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is a decision in the matter of the Queen v Tuck, T-U-C-K, Yuen, Y-U-E-N, Lee.

INTRODUCTION

This is an application pursuant to section 590AA of the Criminal Code brought on behalf of the defendant, Tuck Yuen Lee (also known as Taylor Lee) seeking the exclusion from prosecution evidence of an electronic record of interview (EROI) conducted by PCSC Marcus Edwards and PCC Mick Hariss with the defendant on 21 March 2005.

CHARGES

The defendant has been indicted with respect to a 10 count indictment which alleges one count of rape, one count of indecent assault and one count of common assault (in respect of the complainant H), and further, five counts of indecent assault and two counts of common assault (in respect of the complainant N).

Committal proceedings took place before Magistrate Costanzo in the Southport Magistrates Court on 28 September and 7 October 2005.  No trial date has yet been set in the District Court, Southport.

FACTS

The defendant was, at the relevant dates alleged on the indictment (8 March 2005 in respect of the complainant H and 19 March 2005 in respect of the complainant N), self-employed as a practitioner of Chinese traditional medicine.  The offences arose from massages he carried out on each of the complainants. 

DEFENDANT'S SUBMISSIONS

Mr Thornburgh who appears on behalf of the defendant, submits that the EROI should be excluded as evidence on the following grounds:-

1. (1)
   The interview was not voluntary;

2. (2)
   The admission of the interview would be unfair to the defendant because:

1. (a)
   Investigating police failed to comply with the Police Powers and Responsibilities Act 2000 (PPRA); and/or

2. (b)
   The defendant's lack of understanding of English.

PROSECUTION RESPONSE

Ms Thomas who appears on behalf of the Director of Public Prosecutions, not surprisingly opposes the application and submits that the EROI should not be excluded as evidence.

VOLUNTARINESS

Mr Thornburgh submits that the defendant's "limited understanding of English placed him in a position where his will was clearly overborne by the complexity of the questioning put to him by police" (see defendant's submissions page 3).  Of course, it is trite and accepted law that a "confession" must be voluntary in order to be admitted into evidence (see R-v-Lee (1950) 82 CLR 133, 144).

The fundamental difficulty that I have with this submission is that the defendant, who has lived in Australia since 1980 (see Exhibit A, page 4 line 32) is clearly a competent and capable speaker of English.  The defendant has an accent, he's not always easy to understand, and speaks English as a third language (he also speaks Cantonese and Mandarin - see Exhibit  C page 3 lines 43-60).  However, having listened to all of  Exhibit B (the field tape of the defendant's meeting with DCSC Edwards and PCC Hariss at the defendant's rooms on 21 March 2005, followed by the trip in the police car to Burleigh Heads CIB and the conclusion of the conversation at that office) and also having listened to parts of Exhibit D (the EROI of 21 March 2005 between investigating police and the defendant), and having perused the relevant transcripts (Exhibits A and C) it is clear to me that the defendant is competent and capable in the English language.  I am not persuaded that his will was overborne nor do I accept that there is any other evidence which supports a submission that the EROI was not given voluntarily.

I do not accept that there is evidence that the confession was obtained as a result of duress, intimidation, or sustained or undue insistence or pressure (see McDermott-v-R (1948) 76 CLR 501, 511-513).  Nor do I accept that the defendant lacked the understanding that the questions need not have been answered (see R v Nguyen (1995) 78 A Crim R 582; R v Li [1993] 2 VR 80, 80-88).  On the contrary, the defendant, who at the time of the relevant EROI had lived in Australia for some 25 years, was clearly advised by PCSC Edwards of his right to decline an interview on at least four separate occasions.   The defendant was at the same time advised of his right to have a friend, relative or solicitor present, and he was warned that answers to police questions could be used in evidence against him.

I conclude therefore that I should reject the submission that the EROI was not given voluntarily.

UNFAIRNESS

Mr Thornburgh submits that the EROI should be excluded on the basis of unfairness, given (on Mr Thornburgh's submission) the failure of police to comply with the PPRA, or in the alternative, the defendant's lack of understanding of English. 

Given my previously expressed opinion that the defendant was capable and competent in the English language, I do not see that there is any basis for a submission that it would be unfair to the defendant, or unjust, to admit the EROI as evidence (see R v McKay [1965] Qd R 240; R v O'Neill [1996] 2 Qd R 326, 413).  Accordingly, I reject the submission that there was a basis to exclude the EROI as unfair, given the English language competency of the defendant.

Mr Thornburgh further submits that investigating police have failed to comply with the PPRA in various respects.  Exhibit A (the transcript of the field tape which is Exhibit B) at page 4 has the defendant being asked "Do you wish to have a lawyer or solicitor present during the interview?" with the defendant replying "Yes, that's right" (Exhibit A, page 4 lines 15-16).  Mr Thornburgh's submission is that all questioning should then have immediately ceased. 

However, the difficulty with that submission is that it is clear that the discussion after that answer by the defendant is not in any way a "confession" nor could it be said to be inculpatory at all.  The defendant subsequently decides to proceed to undertake an interview without a solicitor (see Exhibit C page 3 lines 20-30) having discussed the matter further with PCSC Edwards upon arrival at Burleigh Heads CIB (Exhibit A page 6 lines 43-51, page 7 lines 3-51).

Importantly, the defendant was warned in respect of his right to silence and the evidentiary consequences of a failure to exercise that right (PPRA s.258 and Police Powers and Responsibilities Code (PPRC) s. 37), and his right to a lawyer (PPRA s.258 and PPRC s. 34) and/or friend or relative (PPRA s. 258, PPRC s. 34) on four separate occasions (Exhibit A, pages 3-4; Exhibit A pages 6-8; Exhibit C pages 27-28).  There has, in my view, been no failure to comply with the PPRA in respect of those matters.

Mr Thornburgh further submits that the investigating police officers have failed to comply with PPRA s.260, which obliges police to delay questioning until the arrival of an interpreter if "the police officer reasonably suspects a relevant person is unable, because of inadequate knowledge of the English language...to speak with reasonable fluency in English" (PPRA s. 260(1)). 

Given the view that I have expressed already to the effect that, in my opinion, the defendant's use of the English language was both capable and competent, I fail to see that investigating police should have been obliged to obtain the services of an interpreter.  It is relevant to observe that there is no evidence in respect of this matter, in any event, that any police officer "reasonably suspected" that Mr Lee was "unable to speak with reasonable fluency in English" (PPRA s. 260 (1)).  In any event, I have clearly formed the view that the conduct of the EROI did not raise a sufficient basis to exclude the  EROI on the basis of unfairness to the accused (R v Cho [2001] QCA 196, per Mackenzie, J at paragraphs 19, 20, 29).  In fact, I note that the decision in R v Cho, in which the factual matrix bears striking similarities to the case before me, is clear and appropriate authority for the conclusions that I have reached in respect of this matter.

CONCLUSION

The EROI should not be excluded as evidence, either on the basis that it was not voluntary, or on the basis that its admission would be unfair, whether by purported non-compliance with the PPRA or a purported lack of understanding of English by the defendant. This matter should now be listed for trial at an early opportunity. 

Anything arising from that?

MS THOMAS:  No, thank you, your Honour.

HIS HONOUR:  Okay.  Mr Thornburgh, in terms of listing it for trial, do you want an adjournment first to - or do you want - I don't have a list clerk here just at the moment or‑‑‑‑‑

MR THORNBURGH:  I don't have any instructions on dates at this time.

HIS HONOUR:  I'm sorry, I do - I do have a list clerk, but you don't have instructions, so‑‑‑‑‑

MR THORNBURGH:  No. I can get them pretty quickly.

HIS HONOUR:  Okay.  Do you want to mention this matter on Friday?

MR THORNBURGH:  Yes, that should be fine.

HIS HONOUR:  Okay.  I'll list it for mention on Friday, the 17th.  This is what you get when you haven't got a calendar in front of you, see.  I must do something about this.  We'll list it for mention 9.30 a.m., Friday, the 17th.

MS THOMAS:  Thank you, your Honour.

MR THORNBURGH:  Thank you, your Honour.

HIS HONOUR:  Thank you both for your excellent submissions on the matter and it was an interesting case.  Thank you, for that.