Director of Public Prosecutions v Deng (Ruling No 2)
[2022] VSC 367
•21 June 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0032
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| MARCO DENG | Accused |
---
JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 June 2022 |
DATE OF RULING: | 21 June 2022 |
CASE MAY BE CITED AS: | DPP v Deng (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 367 |
---
CRIMINAL LAW – Evidence – Murder – Manslaughter – Accused told lies during his police interview, including that he did not have a weapon and did not stab the deceased – Accused admits he lied - Incriminating conduct – Whether evidence reasonably capable of being used as evidence that the accused stabbed the deceased with murderous intent - R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308 - DPP v Zhuang [2014] VSC 276 – DPP v Scriven [2015] VSC 220 – R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 - DPP v Ristevski (Ruling No 1) [2019] VSC 165 - Jury Directions Act 2015 ss 19, 20 and 21.
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M Gibson QC | Office of Public Prosecutions |
| For the Accused | Mr D Cronin | Emma Turnbull Lawyers |
HER HONOUR:
The accused man, Mr Deng, is charged with the murder of Mr Kot at Melbourne on 22 June 2020. Mr Kot was fatally stabbed once in the early hours of the morning.
Mr Deng accepts that he unlawfully inflicted the stab wound that caused the deceased’s death. He announced in the presence of the jury panel that he would plead guilty to manslaughter. The prosecution did not accept that plea, and the trial is proceeding on the charge of murder, with manslaughter as the alternative.
Pursuant to s 19(1) of the Jury Directions Act 2015 (Vic) (‘Act’), the Director of Public Prosecutions has given notice that the prosecution intends to adduce evidence of incriminating conduct.
Overview of alleged offending
The accused and deceased were friends. On the evening of 21 June 2020, the accused was observed to be upset with the deceased, because he believed the deceased had called him a ‘snitch’. He told a friend, Mr Daw, that he wanted to fight the deceased ‘one on one’.
The accused made multiple attempts to contact the deceased, and finally succeeded. The deceased was at the Oaks Hotel in Market Street, Melbourne, and an arrangement was made to meet there. The accused, together with four acquaintances, arrived shortly prior to 5:00am. From this point, CCTV captures much of what occurred, including the stabbing. Immediately after the stabbing, and before the deceased collapsed, the accused and his acquaintances ran from the scene.
Police commenced an investigation, and on the morning of 25 June 2020, the accused was arrested. He participated in a formal record of interview later that day.
Notice of Incriminating Conduct (‘the Notice’)
The Notice sets out a number of answers, given by the accused during his record of interview, that the prosecution submit are lies. The alleged lies are found in the following answers:
i)He omitted involvement in the stabbing (A136).
ii)He did not have any weapons (A576).
iii)He hypothesized that one of the people with whom he had attended, may have had a weapon and been responsible for the stabbing (A576).
iv)He was not in the immediate proximity when the deceased was stabbed (A536, A546, A556-557, A561, A565-567).
v)He did not see the deceased getting stabbed (A578).
vi)He did not stab the deceased (A579).
vii)He was not the stabber (A601).
The prosecution submit these answers are lies, and the lies are reasonably capable of being used by the jury as an implied admission that at the time the accused stabbed the deceased, he intended to cause him really serious injury.
The record of interview
On 25 June 2020 at around 10 am, the accused attended the Active Medical Centre in Caroline Springs. The Active Medical Centre is diagonally opposite the Caroline Springs Police Station. The accused requested the receptionist to call 000 for him. The Practice Manager then attended. The accused told her the police station was closed, and the Practice Manager called 000. Minutes later, police officers attended and arrested the accused. The accused was told he was under arrest for murder, and administered his caution and rights.
A formal record of interview commenced at 1:55pm. Detective Webber told the accused, ‘I intend to interview you in relation to the circumstances surrounding the death of Machar Kot’. The accused was asked about what occurred at the Caroline Springs Police Station, and answered, ‘they asked for my details and told me I’m arrested for the murder or something’. The accused agreed he had been arrested earlier, and they (the police) ‘told me Homicide’s coming’. The accused is asked, ‘And do you agree that they told you were under arrest for the circumstances surrounding the death of Machar Kot?’, and the accused answered ‘Mm’hm’. The accused agreed he had an opportunity to speak to his solicitor prior to the interview commencing. Detective Drew repeated, ‘we’re going to interview you today in relation to the circumstances surrounding the death of Machar Kot ’. The accused was requested to undergo certain forensic procedures. At this point, Detective Webber tells the accused he is suspected of having committed murder. Shortly afterwards, Detective Webber again tells the accused, ‘so you are suspected on reasonable grounds of having committed murder’. The accused consents to all forensic procedures, and the interview is suspended at 2:15pm. The interview recommences at 3:28pm. Detective Webber repeats that they are interviewing the accused ‘in relation to the circumstances surrounding the death of Machar Kot’.
The accused told police that Machar was calling him a snitch or a bitch. He admits he was mad, and went into the city to fight Machar. He said his intention was just to have a normal fist fight. He said he was very drunk on this night and had consumed two Xanax tablets. He said he had been drinking Jack Daniels whiskey.
The accused said that between Monday 22 June and Thursday 25 June, he stayed with a friend, and also in a park in Deer Park. He had lost his mobile phone, but a friend showed him threats that had been made on social media. These included threats that he would be shot, and he is a dead man.
Turning to the alleged lies. The answer to Question 136 is as follows:
We went to the city saying – ‘cause Machar said something about me – like, saying, “You snitched that, this. Come, I’ll fight you”. I’m like “All right”, so I just went. We had a fight and then I just – I dropped and his mates came and they were kicking me in the head and that, like, kicked me. And that’s when the people I arrived at the city with got up ran, chased them and everything but I stayed back and let ‘em take off.
At Answer 536, the accused says that after he got up from the ground, he walked towards the car and that is when his mates came running back.
At Question and Answer 546, the accused is asked what he did when he returned to the car. He answers, ‘Just stood by the side of the car trying to see - - -‘.
At Question and Answer 556-7, he is asked how far he was from the hotel entrance. It is somewhat unclear whether he is being asked how far he was from the entrance at the time of the fight in the street, or how far he was from the entrance when he reached the car. He estimates 10 or 20 metres.
At Question and Answer 561 he is asked where Machar was at the stage he went back to the car and saw his friends running back. He answered, ‘I don’t know. He ran off’.
At Question and Answer 565-6, he is asked where his friend ran to. He describes a corner and says he did not see him after that. Having now watched the interview, in my view the accused is referring to his friends, and said he did not see ‘them’ (not ‘him’) after that.
At Question and Answer 576, he is asked ‘did you have any weapons?’. The accused answers, ‘not me but I don’t know about the other guys’. At Question 578, Detective Drew asks, ‘During this incident with Machar, Machar died after being stabbed in the chest. Can you explain to us how that happened?’. The accused answers, ‘I don’t know I didn’t see it’. He is then asked if he stabbed Machar, and answers no (Question and Answer 579).
He is then shown a still from the CCTV footage which depicts the accused. The accused says it is not him. This does not form part of the Notice.
At Question and Answer 601, Detective Drew asks, ‘So do you deny any suggestion that it was you who is responsible for stabbing and killing Machar?’. The accused answers, ‘Yeah’.
Submissions
In written submissions, the prosecution referred to a number of authorities[1] directed principally to three matters. First, the task of the trial judge when determining whether the evidence is reasonably capable of being used in the way sought by the prosecution. Secondly, the principles that apply where the evidence is said to be ‘intractably neutral’ as between the offence charged and a lesser alternative. Thirdly, if the evidence is led, the question of whether there is any requirement that the jury must be satisfied of the guilty inference beyond reasonable doubt.
[1]DPP v Lyons & Lyons (Ruling No 4) [2018] VSC 297; R v Heyes (2006) 12 VR 401; R v Ciantar (2006) 16 VR 26; Brooks v The Queen (2012) 36 VR 84; Flora v The Queen (2013) 233 A Crim R 320; R v Baden-Clay (2016) 258 CLR 308; Butler v The Queen (2011) 34 VR 165.
In written and oral submissions, the prosecution highlighted the other evidence in the trial. They submitted the lies are an additional and separate piece of circumstantial evidence, which, when seen in the context of all the evidence, would allow a jury, acting rationally, to conclude that the accused had lied because he was conscious he had stabbed the deceased intending to cause him really serious injury. The test is whether a jury could reach such a conclusion, not whether they would or should do so.
The prosecution submitted the accused was told he was suspected of murder at the time of his arrest, and early in the interview. It was in this context – that is, knowing he was being interviewed about an alleged murder – that the lies were told.
Mr Cronin submitted that here, there are reasonable alternative explanations for the lies, including the accused had been threatened and feared retribution. Mr Cronin referred to the decision of DPP v Ristevski (Ruling No 1).[2] In that case, the accused was charged with the murder of his wife. The prosecution case was circumstantial. The prosecution sought to rely solely on the accused’s post offence conduct as evidence that the accused had killed his wife with murderous intent. Beale J ruled that whilst the conduct could be relied on to prove the accused killed his wife, it could not be relied on to prove he did so with murderous intent. His Honour considered there was ‘much force’ in the alternative explanation as to why the accused engaged in the post offence conduct, which made it difficult to see how a jury could properly find the only reasonable explanation for the post offence conduct was that the accused was conscious of having killed his wife with murderous intent.[3]
[2][2019] VSC 165.
[3]Ibid [36].
Mr Cronin submitted there is evidence the accused was intoxicated at the time of the stabbing, and only learned afterwards that the deceased had died. The accused received threats, and later made efforts to hand himself into police. He submitted that from the accused’s perspective, it would make little difference if he was told he was being interviewed for murder or manslaughter, as either way, there are significant consequences for Mr Deng.
Mr Cronin argued the position may be different if a different defence was being run, but here the only element in dispute is intention. In those circumstances, the post offence conduct fits ‘fairly and squarely’ into the ‘intractably neutral’ category.
In reply, Mr Gibson submitted the evidence does not lose its probative force because the accused now admits killing the deceased. He further submitted that once the accused was told he was suspected of murder, he could have told police that he did not mean to kill Mr Kot, or something of that nature, if that were the true position. However his complete denial is inconsistent with an unintentional killing, and consistent with murder. The evidence is not ‘intractably neutral’.
The applicable legislation
Section 20(1) of the Act is as follows:
The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—
(a)the prosecution has given notice in accordance with section 19; and
(b)the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
Both ‘conduct’ and ‘incriminating conduct’ are defined in s 18 of the Act.
If paragraph 20(1)(b) is satisfied, the Act sets out directions that must be given, and directions that may be requested.[4]
[4]The Act, ss 21 and 22.
Legal principles
Lies are a particular type of post offence conduct. Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence.[5]
[5]Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193 at [9] per Deane, Dawson and Gaudron JJ.
Pursuant to the Act, the task of the trial judge is to determine if the evidence is ‘reasonably capable of being viewed by the jury as evidence of incriminating conduct’. Picking up the words of s 21(1)(a), this means it must be reasonably open to the jury to conclude that:
(i)the conduct occurred; and
(ii)the only reasonable explanation of the conduct is that the accused believed he had committed the offence charged or an element of the offence charged.
In DPP v Zhuang,[6] Kaye J framed the trial judge’s task as follows:
The question in any case whether a jury should draw a particular inference is of course essentially a question of fact for the jury and not the judge. It is not my task to determine whether the jury should draw the inference contended for by the prosecution. Rather at this stage my task is to determine whether the jury acting rationally could conclude that the only reasonable inference from the post offence conduct indulged in by the accused is that contended for by the prosecution.
Thus, where the prosecution seeks to rely on post offence conduct, the test for myself as the trial judge is whether the jury could rationally conclude that the only reasonable inference to be drawn from that conduct is that contended for by the prosecution, namely an awareness that she had murdered her daughter-in-law and was not acting in self-defence.
Further, the test which I must consider is not whether standing alone the only reasonable inference to be drawn from that conduct is that the accused acted as she did, because of a belief that she had murdered [the deceased] without justification. Rather it is plain that the question must be considered in the context of all the evidence in the case, and the background circumstances to it. [citations omitted][7]
[6][2014] VSC 276.
[7]Ibid [21]-[23].
The principles explained in R v Ciantar[8] (‘Ciantar’) are central to the resolution of this application. In Ciantar, the applicant was charged with culpable driving and had fled the scene of a motor vehicle collision. It was argued by the applicant that ‘the judge did not make clear that evidence of flight could only be used as evidence of consciousness of guilt if the jury were satisfied that it sprang from a realisation of guilt of the crime charged, namely, culpable driving, as opposed to a realisation of having been engaged in some lesser unlawful activity’.[9] The applicant’s argument was based on the decision in R v Heyes,[10] where it was held by majority that where murder, provocation and unlawful and dangerous act manslaughter were in issue, an accused’s post offence lies could not generally be used to determine that the accused was guilty of murder as opposed to manslaughter.[11]
[8](2006) 16 VR 26.
[9]Ibid [33].
[10](2006) 12 VR 401.
[11]Ibid per Buchanan and Vincent JJA.
The Court in Ciantar held:
In our view the argument cannot be sustained. For even allowing that a possible explanation of the applicant’s post offence conduct was that he was conscious that he had committed one or more of the lesser offences, as opposed to the offence charged, it does not follow that the post offence conduct could not be left to the jury as something which was capable of supporting an inference that the applicant was conscious that he had committed “the offence charged”.
We accept that there may be some circumstances in which post offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases. And, to the extent that Heyes implies the contrary, in our view it should not be followed. [citations omitted][12]
[12]Ciantar at [39]-[40].
In Baden-Clay,[13] the accused was charged with the murder of his wife. The accused falsely denied to police the he was having an ongoing affair with another woman. He had suggested to her that she should ‘lie low’, and inquired of her whether she had disclosed their affair to the police. The accused gave evidence at trial, during which he denied he had anything to do with his wife’s murder. On appeal, it was contended that if the jury were satisfied the accused caused his wife’s death, his post offence conduct could not be used on the issue as to whether he had killed her with murderous intent. The High Court rejected that proposition. They referred to a Canadian decision of R v White[14] and stated:
In R v White, Major J went on to say that there may be cases where post offence conduct, such as the accused's flight or concealment, is so out of proportion to the level of culpability involved in a lesser offence that it might be found by the jury to be more consistent with the more serious offence charged. There may be cases where an accused goes to such lengths to conceal the death or to distance himself or herself from it as to provide a basis on which the jury might conclude that the accused had committed an extremely serious crime and so warrant a conclusion beyond reasonable doubt as to the responsibility of the accused for the death and the concurrent existence in the accused of the intent necessary for murder. There is no hard and fast rule that evidence of post offence concealment and lies is always intractably neutral as between murder and manslaughter. As Major J said: “The result will always turn on the nature of the evidence in question and its relevance to the real issue in dispute”. [citations omitted][15]
[13]R v Baden-Clay (2016) 258 CLR 308.
[14][1998] 2 SCR 72.
[15]R v Baden-Clay [2016] HCA 35; 258 CLR 308 at [74].
The phrase ‘intractably neutral’ was discussed in DPP v Scriven (Ruling No 4).[16] Maxwell P was considering the task of the judge when determining the admissibility of incriminating conduct evidence. His Honour stated:
In my view, the phrase ‘intractably neutral’ as used in the cases captures one — but only one — possible result of the judge’s evaluation of the evidence. In such a case, the judge concludes that the innocent explanation and the incriminating explanation are equally plausible. Put another way, to say that conduct is ‘intractably neutral’ is to say that a rational jury could not, on the whole of the evidence, decide which was the preferable explanation.
Logically, however, there will be other circumstances in which the existence of an alternative explanation would prevent a judge making the s 24[17] determination. That is, even where the competing explanations are not of equal plausibility, the judge might still conclude that the innocent explanation was sufficiently cogent, and sufficiently consistent with the surrounding circumstances, that the jury acting rationally would be unable to exclude it. [citations omitted][18]
[16][2015] VSC 220.
[17]Now s 20 of the Act, noting his Honour was dealing with the Jury Directions Act 2013.
[18]DPP v Scriven (Ruling No 4) [2015] VSC 220, [25]-[26].
Where, as here, there is an issue as to whether the accused caused the death of the deceased with murderous intent, or whether the accused is guilty of the less serious offence of manslaughter, post offence conduct is not necessarily or usually ‘intractably neutral’. The conduct must be evaluated in the context of all the evidence in the case, and the surrounding circumstances.
Analysis and conclusion
The evidence has now concluded. Given the stage of the trial, I am well-placed to assess the effect and relevance of the post offence conduct on the basis of the evidence as a whole. There is no question that the conduct occurred. The accused lied in the ways alleged in the Notice, and has admitted he lied through announcing he would plead guilty to manslaughter.
The accused admits he caused the deceased’s death by a conscious, voluntary and deliberate act. The only element of murder in dispute is intention. Therefore, the focus is on whether the lies are reasonably capable of being viewed by the jury as an admission to that element. Thus the critical question is whether the lies told by the accused, in combination with the other evidence in the trial, are capable of demonstrating a consciousness by the accused that at the time he stabbed Mr Kot, he intended to kill him or cause him really serious injury, as distinct from a number of other possibilities, including that he lied because he knew he had stabbed the deceased and caused his death; or lied because he was scared he would be harmed by friends of the deceased.
This is not a circumstantial case. The prosecution have direct evidence as to how the accused killed the deceased, in the form of eye-witness testimony and, far more significantly, CCTV footage.[19] There is evidence in this trial capable of proving the following:
[19]See also, for example, DPP v Wan (Ruling No 1) [2018] VSC 19, where the issue of incriminating conduct was considered in circumstances where there was direct evidence of the killing, including CCTV footage.
·The deceased had called the accused a ‘snitch’, and the accused was upset by this. The accused wanted to confront the deceased over his comment, and wanted to fight him. To this extent, there is a reason or motive for the stabbing, or at least for the initial altercation.
·The accused persistently tries to contact the deceased in the early hours of 22 June 2020, and eventually succeeds.
·The accused and deceased agree to meet up. To this end, the accused travels by car to the Oaks Hotel with four persons, whom I will refer to as friends.
·The accused had consumed alcohol and Xanax, and was unsteady on his feet at times. Mr Anyar makes this observation, and it can be seen on the CCTV footage.
·The deceased leaves the hotel with Mr Gurech. The deceased walks up to the accused, and they both walk around the corner into the street.
·The deceased and accused speak briefly, and the accused punches the deceased in the face. The deceased immediately punches the accused, who falls to the ground against a wall. The accused gets to his feet and the fight continues. At least one other person pushes the deceased.
·The accused then approaches the deceased holding a knife in his right hand. Other people, including Mr Anyar, try to keep the accused away from the deceased.
·The accused drops or throws down the knife at one point, and it is picked up by a friend of the accused.
·The accused and deceased resume fighting. At this point, they move further along the street and cannot be seen on the CCTV footage.
·A minute or so later, the accused appears to be thrown to the ground. The accused’s friends go to help him.
·The deceased and Mr Gurech walk rapidly away from the accused and his friends, and back towards the hotel. The accused follows, armed with the knife. The deceased is unable to open the hotel doors, with the result that he is effectively cornered. Various people try to keep the accused away from the deceased, but he moves around them and stabs the deceased once in the upper abdomen. He withdraws the knife, and is pushed back down the stairs by two of his friends. The accused and his friends then run from the scene. The deceased collapses after the accused has left the scene.
·The single stab wound was fatal. The knife was never located. The degree of force with which the accused stabbed the deceased was sufficient to penetrate skin and clothing, and fits the description of ‘mild to moderate force’.
·In the days between the incident and arrest, the accused stayed with friends, or stayed in a park. He learned the deceased had died. He received some threats via social media from friends of the deceased. He handed himself in to police on the morning of 25 June 2020.
·At the time of the police interview, the accused understood he was suspected of murder.
There is also evidence from the toxicologist, Dr Gerastomoulos, as to the general effects of alcohol and Xanax on a person. Those drugs, alone and in combination, can cause loss of memory, and adversely impact a person’s memory recall, motor coordination, judgment and perception. The jury will need to be given a direction as to intoxication and intent. It will be a matter for the jury to determine the extent to which the accused was intoxicated, and the effects the intoxication had on him.
When considering whether the lies told by the accused can be relied on as an implied admission he stabbed the deceased with murderous intent, regard must be had to the whole of the evidence and the following question asked: is it open to the jury to rationally conclude that the only reasonable explanation for the lies is that the accused was conscious that when he stabbed the deceased, he intended to cause him really serious injury?
I do not place much weight on the fact the accused was told by police he was suspected of murder. Whether the word ‘murder’ was or was not used, Mr Deng understood he was being accused of fatally stabbing the deceased. I do not find it is more probable that because Mr Deng was told he was suspected of murder, his lies were therefore referrable to his intention at the time of the killing, rather than the fact he was responsible for the unlawful killing. He may have reasonably thought that a person commits murder if they kill another person, and if he admits he is the killer, he will be guilty of murder. It is plausible he lied because he knew he was responsible for stabbing and killing the deceased, and not because he was conscious of having stabbed the deceased with murderous intent.
In my view, a rational jury could not conclude that the only reasonable explanation for the lies is that the accused held a belief that he had stabbed the deceased with an intention to cause him death or really serious injury, as distinct from the accused having lied to police because he knew the deceased had died, he knew he had stabbed him, and he knew he was responsible for his death. The latter conclusion is cogent, rational and consistent with the surrounding circumstances.[20] Whilst it is not necessary for the competing explanation to be equally plausible, in the circumstances of this case, both explanations are logically attractive.
[20]See DPP v Scriven (Ruling No 4) [2015] VSC 220, [27].
This is not a situation where the accused’s post offence actions could reasonably be described as an extreme reaction, or out of all proportion to a killing occasioned by a single stab wound. Mr Gibson submitted that if the accused had unintentionally killed the deceased, he would have told police that in his record of interview. That is, he would have admitted he stabbed the deceased, but explained he did not intend to kill him or cause him really serious injury. I am not persuaded by that submission. Further, a jury must not be invited to reason that if the accused had unintentionally killed the deceased, he would have told police that, and because he did not, he must not have held that belief. A jury is not entitled to draw a guilty inference against an accused person because he or she exercised their right to silence, and such an invitation would be an infraction of that principle.[21]
[21]See DPP v McEwan, Robb and Dambitis (Ruling No 1) [2012] VSC 139, [34] (Kaye J).
I rule that the evidence referred to in the Notice may not be used as evidence of incriminating conduct.
---
0