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R v Thi My Ly Le[2018] QDCPR 81

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Le [2018] QDCPR 81

PARTIES:

R

(Respondent) v

LE, Thi My Ly 

(Applicant)

FILE NO/S:

420/17

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court at Ipswich

DELIVERED ON:

14 December 2018

DELIVERED AT:

Ipswich

HEARING DATE:

2 November 2018

JUDGE:

Lynch QC DCJ

ORDER:

1. The statements made by My Linh Le to Jonathan Betten and Michael O'Keefe at Inala Police Station on 15 January 2017 are excluded from evidence on the applicant’s trial

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – APPLICATION TO EXCLUDE PURPORTED STATEMENTS AT TRIAL – where defendant’s first language is Vietnamese – where prior to defendant being charged she attended police station – where statements made by defendant in Vietnamese to her daughter – where daughter made statements to police in English – whether account of statements made by daughter admissible – whether statements made by daughter hearsay 

Legislation

Criminal Code Act 1899 (Qld) s 590AA

COUNSEL:

C C Minnery for the applicant

N W Needham for the respondent

SOLICITORS:

Cridland & Hua for the applicant

Director of Public Prosecutions (Queensland) for the respondent

Application

  1. [1]
    Thi My Ly Le is charged conjointly with Van Dat Vu with a total of 9 counts as follows:

 Counts 1 & 5:   Kidnapping

 Counts 2 & 6:   Unlawful use of a motor vehicle

 Counts 3 & 7:   Deprivation of liberty

Count 4:    Burglary by breaking with violence in company             

 Counts 8 & 9: Extortion

  1. [2]
    Ms Le applies, pursuant to s 590AA of the Code, for pre-trial ruling that statements purportedly made by her at Inala Police Station on 15 January 2017 be excluded from evidence at her trial. 
  1. [3]
    I have concluded the statements are not admissible upon the applicant’s trial on the above charges. These are my reasons. 

Material

  1. [4]
    The following material was admitted on the hearing of the application.

 Exhibit 1:  Application

 Exhibit 2:  Applicant’s outline of submissions,

Affidavit of My Linh Le

 Exhibit 3:  Respondent’s outline of submissions

     Statement of Jonathan Luke Betten

Statement of Michael Paul O'Keefe

Statement of Bradley Thomas Spencer

Schedule of telephone calls

 Exhibit 4:  Respondent’s supplementary outline of submissions

  1. [5]
    In addition, on the hearing of the application, witnesses Betten, O'Keefe, and My Linh Le gave evidence and were cross-examined. The respondent was given leave to file supplementary submissions after the hearing. They have been admitted by me and marked as Exhibit 4.

Prosecution case

  1. [6]
    The prosecution alleges the applicant and others were owed significant sums of money by the complainant Pham, on account of her gambling problem. It is alleged the complainant had borrowed money from the applicant and others. It is alleged on 14 January 2017, the complainant went to the applicant’s residence at about midday and paid her the sum of $3,000 towards her debt. It is alleged two masked males then entered the room, one of whom the complainant identified as the co-defendant Vu. It is alleged the males bound and gagged the complainant and took her outside to a vehicle. Demands were made for payment of monies allegedly owed. It is alleged the complainant was then driven to a property at Richlands where she was placed into a shipping container and locked inside.
  1. [7]
    It is alleged at about 2.30pm the same day, the complainant’s husband Hoang arrived home and was confronted by two masked men inside his house. It is alleged Hoang then had tape placed over his mouth and eyes and was taken outside to a vehicle and driven to the Richlands address where he was also confined in the shipping container. Demands for payment of one million dollars allegedly owed by Pham were then made to both Pham and Hoang by Vu. Eventually Vu told Pham and Hoang they would be kept in the container for 30 days if they could not pay the money. They were then left confined in the locked shipping container. It is alleged at about 8.30pm, Vu returned with food and water and again left. Pham and Hoang remained in the container until about 4.30am the next morning when they managed to escape. They made their way to a road and hailed a passing police vehicle.

Challenged conversations

  1. [8]
    It is alleged the applicant attended the Inala Police Station on the morning of 15 January 2017 with her daughter My Linh Le. My Linh Le spoke to Jonathan Betten at the front counter of the station. Mr Betten is a public servant who was performing administrative duties at the police station. My Linh Le also spoke to police officer Constable Michael O'Keefe who was performing duty at the front counter. Both Mr Betten and Constable O'Keefe say the applicant spoke in a language they assumed was Vietnamese, while her daughter My Linh Le spoke to police in English.
  1. [9]
    In his witness statement, Mr Betten described the conversation as including that the applicant was concerned for her friend Pham and could not contact her or find her where she was supposed to be. The statement also referred to the applicant having visited the address of Vu at Richlands, attempting to locate Pham. The statement also referred to Pham having taken approximately 1.5 million dollars.
  1. [10]
    Mr Betten gave evidence that he spoke with the applicant and My Linh Le at about 8.00am. Mr Betten said he did not speak or understand the Vietnamese language. He said it was mainly the daughter who responded to him. Mr Betten said the applicant said some things in English but apart from the name Vu and an address, he could not say what the applicant had said. Mr Betten repeated “it was more so her daughter in the conversation. She was more clearly communicating information to us”.[1] Mr Betten also said the translation by the applicant’s daughter was critical to his understanding what was said.[2]
  1. [11]
    In his witness statement, Constable O'Keefe described the applicant as saying she wanted to report a friend as a missing person. The statement also referred to the applicant saying the friend had gone missing with 1.4 million dollars and that they had organised for someone to find her, but she was not where she was meant to be. 
  1. [12]
    Constable O'Keefe gave evidence that he spoke with the two women at the front counter of the police station on 15 January 2017. He said he did not speak or understand the Vietnamese language. Const O'Keefe said the daughter was the person interpreting to him.  Const O'Keefe acknowledged the applicant did not speak to him in English at all and all of the conversation recorded in his statement came from the daughter. He described that he asked questions, the applicant spoke to her daughter, presumably in Vietnamese, and the daughter spoke in English.[3]
  1. [13]
    My Linh Le gave evidence she was the daughter of the applicant. She said she was born in Australia and has lived here all her life. My Linh Le said she spoke basic Vietnamese and could not always understand her mother. She said when her mother was stressed and spoke quickly she had difficulty understanding her. She said her mother spoke only a limited amount of English. She acknowledged she went to the Inala Police Station with her mother on 15 January 2017 and spoke with persons at the front counter. My Linh Le said on this day she could not understand all that her mother said because her mother seemed panicked and was upset and speaking quickly. My Linh Le said she translated parts of what she heard but thought she understood only 30-40 per cent. She said she could recall her mother being worried about her friend and her safety but apart from that she did not understand much of what her mother was saying. My Linh Le said she was not confident in her translations that day.

Submissions

  1. [14]
    The applicant contends the evidence as to what was said by My Linh Le to Mr Betten and Const O'Keefe is uncertain and incapable of being understood as amounting to an admission. The applicant submits therefore, the statements made through an interpreter are hearsay and not admissible as statements against interest. The applicant contends the purported statements should therefore be excluded.
  1. [15]
    The respondent seeks to rely upon what Mr Betten and Const O'Keefe say they were told by My Linh Le as statements showing guilty knowledge on the part of the applicant of the abduction of Pham and her husband. The respondent submits in those circumstances the statements are admissible on the applicant’s trial.
  1. [16]
    Each of the applicant and respondent made comprehensive submissions, however, because of my conclusions as expressed below, it is unnecessary to detail them.

Consideration

  1. [17]
    The only evidence of what the applicant said during the conversations at the police counter comes from Mr Betten and My Linh Le. Mr Betten maintained all he could recall the applicant said in English was the name of Vu and an address. On Mr Betten’s account, everything else he was told came from My Linh Le. Mr Betten acknowledged the daughter’s interpretation was crucial to his understanding what the applicant said. My Linh Le said she could recall her mother saying, in Vietnamese, she was concerned for her friend. Constable O'Keefe’s evidence was that the applicant did not say anything to him in English. 
  1. [18]
    My Linh Le’s evidence was that she was not confident she understood or correctly translated what her mother said to her. No other means is available to ascertain what was said by the applicant. The most My Linh Le could recall was her mother expressing concern about a friend. Both Mr Betten and Const O'Keefe said they did not understand or speak the Vietnamese language. Neither therefore is able to say what was said by the applicant not in English. And neither can say whether, whatever was said by the applicant, it was then translated accurately by My Linh Le. It follows that the evidence of both Mr Betten and Constable O'Keefe as to what they were told in English by My Linh Le is hearsay. Therefore, the accounts of both Mr Betten and Constable O'Keefe, as to what they claim My Linh Le told them, are simply not admissible. The evidence of both Mr Betten and Const O'Keefe, as to what they were told by My Linh Le, should be excluded from evidence on the applicant’s trial. In those circumstances, there is no occasion to consider the other submissions of the parties.

Order

[19] The order of the court is as follows:

1. The statements made by My Linh Le to Jonathan Betten and Michael O'Keefe at Inala Police Station on 15 January 2017 are excluded from evidence on the applicant’s trial.

Footnotes

[1] Transcript 1-19 lines 14-16.

[2] Transcript 1-25 lines 34-39.

[3] Transcript 1-37 lines 7-35.

Close

Editorial Notes

  • Published Case Name:

    R v Thi My Ly Le

  • Shortened Case Name:

    R v Thi My Ly Le

  • MNC:

    [2018] QDCPR 81

  • Court:

    QDCPR

  • Judge(s):

    Lynch QC DCJ

  • Date:

    14 Dec 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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