R v Lee - [2006] QDC 100

DISTRICT COURT OF QUEENSLAND

CITATION: R v. Tuck Yuen LEE [2006] QDC 100
FILE NO/S: 7/06
DIVISION: Criminal Jurisdiction
PROCEEDING: Application
ORIGINATING District Court, Southport
COURT:
DELIVERED ON: 15 February 2006
DELIVERED AT: Southport
JUDGE: Dearden DCJ
COUNSEL: Ms J Thomas (Prosecution)
Mr D Thornburgh (Defendant)
SOLICITORS: Wrightway Legal for Defendant

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 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.
Criminal Code brought on behalf of the defendant, Tuck Yuen

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) The interview was not voluntary;
(2) The admission of the interview would be unfair to the
defendant because:

(a)

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

(b)

The defendant's lack of understanding of English.

PROSECUTION RESPONSE
Ms Thomas who appears on behalf of the Director of Public 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 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Lee

Details

AGLC: R v Lee [2006] QDC 100
Case: [2006] QDC 100
Decision Date: 15/02/2006

CaseChat Overview and Summary

The District Court of Queensland dealt with an application in the matter of the Queen versus Tuck Yuen Lee, who was indicted on multiple counts of rape, indecent assault, and common assault. The defendant, a practitioner of Chinese traditional medicine, was alleged to have committed these offences during massages on the complainants. The primary issue before the court was whether an electronic record of interview (EROI) conducted by police should be admitted as evidence. The defendant argued that the interview was not voluntary and that its admission would be unfair due to the police's failure to comply with the Police Powers and Responsibilities Act 2000 (PPRA) and the defendant's limited English proficiency. The prosecution argued for the admission of the EROI.

The court found that the defendant's limited understanding of English did not render the interview involuntary or unfair. The judge observed that the defendant, who had lived in Australia since 1980, was a competent speaker of English, and thus his will was not overborne by the complexity of the questions. The court was not persuaded that the confession was obtained through duress, intimidation, or undue pressure. Moreover, the defendant had been repeatedly advised of his rights, including the right to decline an interview, the presence of a friend or solicitor, and the consequences of his answers being used in evidence. The court concluded that the EROI was voluntary and that its admission would not be unfair, given the defendant's English language competency and the police's compliance with the PPRA.

In summary, the District Court rejected the defendant's application to exclude the EROI as evidence, finding it both voluntary and fair to admit. The case was listed for mention on Friday, 17 February 2006, at 9:30 AM, to address any further matters related to the trial listing.

Orders