R v Lin

[2006] QDC 298

DISTRICT COURT OF QUEENSLAND

CITATION:

R  v Lin [2006] QDC 298

PARTIES:

THE QUEEN

v
YUNG-HSIN LIN
Defendant  

FILE NO:

453/05

DIVISION:

Criminal Jurisdiction

PROCEEDING:

S 590AA pre-trial hearing

ORIGINATING COURT:

Southport

DELIVERED ON:

24 March 2006

DELIVERED AT:

Southport

HEARING DATE:

27 January 2006

JUDGE:

Newton  DCJ

ORDER:

Application dismissed

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – Police Powers and Responsibilities Act 2000 – whether record of interview between accused and police should be excluded – whether interview should be excluded pursuant to general discretionary powers of the court – applicant Taiwanese born whose first language is Mandarin – whether applicant’s English was so poor that any responses given by him during the interview should be excluded as unreliable or as demonstrating lack of understanding or the warning given by investigating police officer

Cases cited:

R v Cho [2001] QCA 196
R v Li & Anor [1993] 2VR 80

R v Mohamed(Ruling) [2004] VSC 408

COUNSEL:

Ms B Currie for the respondent
Mr N J MacGroarty for the applicant   

SOLICITORS:

Office of Director of Public Prosecutions for the respondent
Nyst Lawyers for the applicant   

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.

1. 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.

1. 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%.

1. 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.

1. Constable Clive Cust conducted an interview with the applicant at the Coomera Police Station on 19 April 2003,…