R v Thi Lien Le

[2005] VSCA 245

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 354 of 2004

THE QUEEN

v.

THI LIEN LE

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APPLICATION FOR EXTENSION OF TIME

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JUDGES:	CHARLES, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 October 2005
DATE OF JUDGMENT:	11 October 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 245

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CRIMINAL LAW – Extension of time for lodging appeal – Cultivation of a commercial quantity of cannabis L.  House owned by applicant  - No evidence of applicant’s participation in cultivation – Evidence of duress exercised by husband of applicant – Plea of guilty – Applicant unable to speak English – Time extended.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr R. Melasecca	Rob Melasecca

CHARLES, J.A.: 

1. I will ask Buchanan, J.A. to deliver the first judgment.

BUCHANAN, J.A.: 

1. The applicant pleaded guilty in the County Court to a presentment containing one count of cultivation of a narcotic plant, being cannabis L.  After a plea the applicant was sentenced to be imprisoned for a period of one year.  The sentence was wholly suspended for a period of two years.

1. The applicant now seeks an order extending the time to apply for leave to appeal against her conviction.  The time for lodging an appeal expired on 29 November 2004.  The applicant lodged her appeal 17 days late, on 16 December 2004.

1. At the plea the parties accepted that the circumstances of the offence were described in a document entitled "Summary Prosecution Opening", which was made an exhibit.

1. According to the statement, the applicant was the owner of land situated at 112 Billingham Road, Deer Park, on which was situated a two-storey brick house.  A police search of the house revealed that a number of rooms had been set up for the hydroponic cultivation of cannabis, while other rooms were used as living quarters.  The applicant and her husband slept on a mattress on the floor of one of the rooms.  In all there were 129 cannabis plants.  The document contained the following statement:

The accused told police that although she did not plant the cannabis, and that she did not know that the plants were cannabis, she was informed by her son that the plants were illegal plants.  By reason of the fact that the accused was the owner and mortgagor of the house, the accused had the power to force (her husband) to cease cultivating cannabis there."

In her record of interview the applicant said that she did not want her husband to grow the plants.  Her husband told her that it was his business and would not listen to her.  She said that she did not kick him out of the house because she was frightened of being hit by him and said that if she rang the police her husband would attack her family or threaten her children's lives.  She maintained that she was not involved in the cultivation of the cannabis and was not involved in setting up the house with lights and irrigation for the purpose of cultivating the plants.

1. In an affidavit in support of the application the applicant's solicitor has deposed that he has spoken to the applicant through an interpreter and that it is "abundantly clear that she has little or no concept as to the principles relating to mens rea, duress or indeed the consequences that flow from her plea of guilty".

1. There was no direct evidence that the applicant played any part in the cultivation of the crop.  Her only connection with it was her ownership of the house and that she slept in a room in the house.  There was no evidence to contradict her account that her husband was responsible for all the activities relating to the cultivation of the crop and that she took no steps to stop him because of fear for herself and her children.  Further, having regard to the applicant's inability to speak English and her lack of understanding of the criminal law, she may be able to establish that her instructions were not understood by the relatively junior counsel who represented her when she pleaded guilty.

1. In those circumstances it cannot be said that the application for leave to appeal against conviction is doomed to fail, and, as the delay in making application was short and has been explained, I would grant the application.  By reason of the provisions of the Confiscation Act 1997, the applicant may encounter difficulty in preventing her house being confiscated, but that consideration should not determine the fate of this application. If, as I think, the applicant has a reasonably arguable case, she should have the chance to have the conviction now burdening her set aside.

1. Accordingly, I would grant an extension of the time within which to make application for leave to appeal against conviction.

CHARLES, J.A.: 

1. I agree.

VINCENT, J.A.: 

1. I agree.

CHARLES, J.A.:

1. The Court orders -

1.That the application for an extension of time within which to lodge notice of application for leave to appeal against conviction is granted.

2.The time for lodging a notice of appeal against the conviction of the applicant on 15 November 2004 is extended to Friday 21 October 2005.

3.The applicant have until Friday 11 November 2005 to file and serve any affidavits in support of the application for leave to appeal against conviction in this matter.

4.Any affidavits in response to be filed and served by the Crown by Friday 25 November 2005.

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