Director of Public Prosecutions v Ho
[2023] VSC 674
•20 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0164
| DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| THANG MINH HO | Accused |
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JUDGE: | Kaye JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 November 2023 |
DATE OF RULING: | 20 November 2023 |
CASE MAY BE CITED AS: | DPP v Ho |
MEDIUM NEUTRAL CITATION: | [2023] VSC 674 |
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EVIDENCE – Criminal trial – Manslaughter – Privilege against self- incrimination – Whether in interests of justice that witness be required to give evidence – Evidence Act 2008 (Vic), ss 128(4)(b), (5), (7) – X7 vAustralian Crime Commission (2013) 248 CLR 92; Gideon v The Queen (2013) 237 A Crim R 326; The Queen v Lodhi (2006) 199 FLR 328; Villain v State of Victoria [2021] VSC 354.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J McWilliams | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr M Turner | Rolfe Criminal Law |
| For the witness, HA[1] | Mr AV Chernok | Victoria Legal Aid |
[1]A pseudonym.
HIS HONOUR:
The accused man, Thang Minh Ho, is charged on indictment with two offences. First, he is charged with the cultivation of a narcotic plant, cannabis L, in a quantity that was not less than the commercial quantity, applicable to that narcotic plant, between 1 August 2020 and 28 April 2021. Secondly, he is charged with the manslaughter of Cuong Van Le (‘Cuong’) on 28 April 2021. Both of those offences are alleged to have been committed at premises at 37 Wurundjeri Drive, Epping (‘the factory’). The trial of the charges is due to commence in this Court on 27 November next.
At the trial, the prosecution intends to call HA as a witness. For that purpose, counsel for the accused has been given leave, pursuant to s 198B of the Criminal Procedure Act, to cross-examine HA in respect of particular issues, raised by two witness statements made by him to Victoria Police. Objection has been taken on behalf of HA to giving evidence in the trial, and to being cross-examined on the preliminary hearing, on the ground that the evidence, which he may give, may tend to prove that he has committed an offence against, or rising under Australian law pursuant to s 128 of the Evidence Act 2008.
Background facts
At the trial, the prosecution will allege that the accused, HA and Van Chuan Nguyen (‘Nguyen’), were each associated with the cultivation of a commercial quantity of cannabis at the factory. On 28 April 2021, Cuong and HA each arrived separately at the factory at about 9:45 am. At approximately 10:40 am, the accused arrived at the property and entered it on foot. He banged on the roller door. In response, Cuong opened the glass door to the premises, following which a physical altercation occurred between him and the accused. HA had heard the loud banging on the door, and, as a consequence, hid at the back of the factory. He could hear the accused swearing at Cuong, and he also heard Cuong call out his name, ‘HA’. In the course of the altercation, it is alleged that Cuong was stabbed with a knife once, by the accused, to his left upper thigh.
Following the incident, the accused walked from the factory, carrying a knife, returned to his vehicle, and drove away. HA then attended upon Cuong, who was lying in a pool of blood near the doorway. He called Nguyen, who was also at the premises. Nguyen drove into the factory, and he and HA lifted Cuong onto the back seat of the vehicle, and then proceeded to drive to Sunshine Hospital. The vehicle arrived at the hospital by ambulance at 11:15 am. On initial assessment by paramedics, Cuong did not respond. He had no pulse and he was not breathing. At 11:45 am, he was declared deceased. Subsequently, a post-mortem examination on the following day, by Dr Sarah Parsons, forensic pathologist, found that the cause of death was the stab wound to the leg, which had transected the femoral artery and vein.
Shortly after the arrival of HA, Nguyen and Cuong at the hospital on 28 April, police arrived at about 11:25 am. There, police spoke with HA. At 12:45 pm, HA was placed in a divisional van and conveyed to Sunshine Police Station. At 8:11 pm on the same day, he was interviewed and made a statement, which he signed (‘the first statement’). Subsequently, at 1:09 am on 29 April, he made a further statement (‘the second statement’). After he made that statement, he was then released without charge. Some seven months later, on 25 November 2021, HA was interviewed, under caution, and was charged with five offences, that included a single count of cultivating a narcotic plant in a large commercial quantity at the premises at Epping, a single count of theft, and a number of related offences and alternatives.
The trial of the charges against HA was listed for hearing in the County Court. Before the commencement of that trial, application was made, on behalf of HA, to exclude the evidence contained in the two statements made by HA, and other evidence derived from HA’s contact with police. Objection was made on a number of grounds, including:
(a)that the accused was, or ought to have been suspected of an involvement in an offence from the point of his first contact with police on 28 April 2021;
(b)that HA was effectively detained, or under arrest, from the point of first contact with police, or soon thereafter, pursuant to s 464A of the Crimes Act;
(c)HA should have been cautioned, and advised of his rights, pursuant to s 464A(3) and s 464C of the Crimes Act, and s 139 of the Evidence Act 2008;
(d)the evidence, derived from HA’s acts and declarations, was obtained improperly or illegally by police;
(e)the evidence ought to have been excluded, pursuant to ss 90 or 138 of the Evidence Act, or in the exercise of the residual unfairness discretion.
For the purposes of that objection, a voir dire was conducted in September 2023 in the County Court, involving the cross-examination of two police members, who were responsible for the disposition of HA on 28 and 29 April 2021. Both of those witnesses gave their evidence at the voir dire under cover of a certificate, provided by the trial judge, pursuant to s 128(5) of the Evidence Act. In the course of the evidence given by one of them, the trial judge became concerned that the witness had given false evidence. As a consequence, the matter was adjourned. A notice of discontinuance was entered on behalf of the Director of Public Prosecutions on the next sitting day.
Following the discontinuance, filed by the DPP, the solicitor for HA sent a request to the prosecution to consider granting HA an indemnity from prosecution, in respect of any matters, arising from evidence given by HA during the trial of the accused in this case. The prosecution responded that HA would not be provided with such an indemnity.
The objection
In the present application, objection is made on behalf of HA to being required to give evidence in the proceeding, on the grounds that any evidence given by him may tend to prove that he has committed an offence against or arising under Australian law and, in particular, the offence of cultivation of a commercial quantity of cannabis L at the factory, and related offences.
It is quite clear — and is not in issue — that if HA were to give evidence in the trial, such evidence may tend to incriminate him in such an offence or offences. Accordingly, there are reasonable grounds for the objection. The critical question is whether it has been demonstrated, on behalf of the prosecution, that the interests of justice require that HA give evidence in the proceeding, pursuant to s 128(4)(b) of the Evidence Act, in which circumstance HA would be given a certificate in respect of that evidence, pursuant to s 128(5).
Submissions
Mr Chernok, who appeared on behalf of HA, submitted that it is not in the interests of justice that HA be required to give evidence, for two principal reasons.
First, he contended, in view of the refusal of the DPP to issue HA with an indemnity from prosecution, in respect of any of the matters in relation to which HA would give evidence in the trial, HA is at a reasonable risk of being charged, again, with the offences, which were discontinued against him on 25 September last. In those circumstances, it was submitted that, notwithstanding the provision of a certificate under s 128(5), HA might be placed in a position of particular unfair disadvantage in any trial, later commenced against him, should he be required to give evidence in the present trial. Further, it was submitted that cross-examination of HA could expose his involvement in other criminal conduct, or could reveal other evidence, which might incriminate him on the charges, which have been discontinued against him. While s 128(7)(b) of the Evidence Act provides protection against such derivative use of evidence given under cover of a certificate, nevertheless, it was contended, the protection, provided by that sub-section, is not absolute. In particular, it may be difficult for the witness to demonstrate that information, or evidence, obtained against him was derived as a direct or indirect consequence of the witness giving evidence under cover of a certificate.
Secondly, it was submitted that there is a significant unfairness to HA in being required to give evidence concerning the contents of two statements, made by him, which were made in circumstances that constitute a real unfairness to HA. In particular, it is submitted that HA was treated ‘appallingly’ by various police members, who dealt with him, on 28 and 29 April 2021. Features of that treatment include, but are not limited to, the following:
(a)the failure of police to caution HA, before he made either of his two statements, and to advise him of his fundamental rights;
(b)HA spent, in effect, 14 hours in the custody of Victoria Police from the time that he was placed in the divisional van at the Sunshine Hospital to the time that he was ultimately permitted to leave Sunshine Police Station in the early hours of 29 April;
(c)during that time, HA spent some time locked in a divisional van, while he was still covered with the blood of Cuong;
(d)after his arrival at Sunshine Police Station, HA was kept in a windowless interview room, with a number of different police present;
(e)HA had very limited facility with the English language. The police made poor arrangements in relation to the interpretation of his communications to them;
(f)HA was not provided with adequate food or water while he was at the police station. HA had particular dietary requirements, and he was unable to consume food that police provided to him;
(g)while at the police station, HA’s clothes and personal effects were seized from him, and he was provided with a forensic jumpsuit to wear;
(h)HA’s hands were bagged in exhibit bags during his time at the police station;
(i)while he was at the police station, HA expressed concern about the wellbeing of his nine-year-old son, who needed to be collected from school. It is contended that he was not properly assisted to make appropriate arrangements for that to occur.
In view of those circumstances, it is submitted that, by requiring HA to give evidence, in the present trial, the DPP is seeking to ‘reap the benefit’ of improper or illegal police conduct, notwithstanding that the previous discontinuance of the prosecution of the charges against him recognise the consequences of that impropriety and illegality.
In response, Mr J. McWilliams, who appears to prosecute the matter, noted that HA is the only witness who can give evidence as to the immediate surrounding circumstances, in which the accused man stabbed Cuong. Mr McWilliams contended that the evidence to be given by HA would be relevant as providing context to the incident, in which the stabbing occurred, and, in particular, as to the demeanour and disposition of the accused, in the moments that immediately preceded the stabbing. That evidence would be directly relevant to the issue whether the accused did act in self-defence. Further, it was submitted that the evidence of HA would be relevant because it would affect the credibility of the account of the incident given by the accused man in his record of interview. Accordingly, it was submitted, it is in the interests of justice that HA be required to give evidence at trial.
Legal principles
As I have noted, s 128(4)(b) of the Evidence Act provides that, where the court determines that there are reasonable grounds for the objection, made by the witness, the court may nevertheless require the witness to give evidence, if the court is satisfied that ‘the interests of justice require that the witness give the evidence’. In such a case, the court must provide a certificate to the witness under s 128(5).
Section 128(7) specifies the effect of such a certificate as follows:
In any proceeding in a Victorian court or before any person or body authorised by a law of this State, or by consent of parties, to hear, receive and examine evidence—
(a)evidence given by a person in respect of which a certificate under this section has been given; and
(b)evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence—
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
In determining whether HA should be required to give evidence under cover of such a certificate, the starting point is that the onus is on the prosecution to establish that the interests of justice require that that evidence be given.[2] The standard of satisfaction, specified by s 128(4)(b), namely, that the interests of justice ‘require’ admission of the evidence, is a quite high standard of satisfaction, reflecting the fact that the legislation significantly affects from a basic, longstanding common law right.[3]
[2]Gideon v The Queen (2013) 237 A Crim R 326, 377; [2013] NSWCCA 257, [285] (Bathurst CJ); Villan v State of Victoria [2021] VSC 354, [14] (Keogh J).
[3]Gideon, 377 [286].
The nature of the intrusion, by provisions such as s 128, on the common law right to silence was amplified by Hayne and Bell JJ in X7 v Australian Crime Commission & Anor.[4] In that case, the court was concerned with provisions of the Australian Crime Commission Act 2002 (Cth), which provided for compulsory examination of a witness. In considering those provisions, Hayne and Bell JJ stated:
Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution’s case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self‑incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.[5]
[4](2013) 248 CLR 92.
[5]Ibid 142, [124]; see also 153, [158]-[160] (Kiefel J); The Queen v Lodhi (2006) 199 FLR 328; [2006] NSWSC 638, [55] (Whealy J).
Accordingly, it is a relevant consideration if criminal proceedings against the witness are currently pending against that witness.[6]
[6]The Queen v Simmons (No 6) (2015) 250 A Crim R 65 (Hamill J); Villan, [17].
Ultimately, taking into account the foregoing considerations, the Court is required to balance, on the one hand, the seriousness of the charges against the accused and the importance of the evidence of the witness in respect of those charges, against, on the other hand, the potential prejudice, to the witness, which might arise from being compelled to give evidence in the trial, taking into account, as I stated, that ultimately, the Court is required to achieve a relatively high standard of satisfaction in order to require the witness to give evidence.
Analysis and conclusion
The question, whether it is in the interests of justice that HA give evidence at the trial, is not entirely straightforward.
On the one hand, the charges, that were brought against him in the County Court have been discontinued, and HA has not been provided with an indemnity against prosecution in respect of those charges. I understand that the admissions made by HA, in his two statements constituted almost the sole evidence connecting him to the cultivation of the cannabis crop at the factory. That is particularly relevant in light of the circumstances in which HA made the two statements to the police.
If HA were required to give evidence in the present trial, his evidence-in-chief would not, I apprehend, involve him making any admission as to the offences, for which he was charged in the County Court, or any other offences. However, it is inevitable that in cross-examination, HA would be questioned, as to the circumstances in which he attended at the property on the day of the incident, and, more broadly, as to his involvement in the cultivation of the crop of cannabis at those premises. It is also quite possible that, in the course of cross-examination, HA may be asked questions, which might require him to reveal his involvement in other related criminal conduct.
In that context, the protection provided by s 128(7)(b) of the Evidence Act is important. I accept the submission, by Mr Chernok, that that protection is not absolute. Nevertheless, it is an important protection, which must be taken into account in considering whether it is in the interests of justice that HA be required to give evidence in the case.
On the other hand, if HA is required to give evidence in the trial, his evidence, would be of some significance in the prosecution case.
HA is the only witness, who is able to give evidence as to the immediate surrounding circumstances, in which the incident, in which Cuong was stabbed, occurred. His evidence would thus be important in providing some context to the incident in which the accused stabbed Cuong, and to the description of that incident by the accused in his record of interview.
Further, as Mr McWilliams pointed out, the evidence of HA is potentially important, concerning the disposition and demeanour of the accused man, when he first arrived at the factory. In his statement, HA said that, after the accused arrived at the premises, he commenced to bang on the door, and while HA hid, he heard ‘a lot of [the accused] swearing’, and then it went quiet. While the swearing was going on, he heard Cuong call out, ‘HA’, but HA could still hear the accused’s voice ‘swearing’. As a consequence, HA was too scared to come out of hiding.
That evidence, potentially, would be important evidence in the prosecution case as to the demeanour, and frame of mind, of the accused man when he first attended at the premises. No doubt, it will be contended, on behalf of the defence, that the swearing and other noise, which HA heard, took place during the confrontation between Cuong and the accused. However, the evidence is capable of being considered, by the jury, to be indicative of the manner and circumstances in which the confrontation occurred, and, in particular, in supporting the prosecution case that it was the accused who was the aggressor in that confrontation. In that respect, the evidence would be relevant also because it would, to some extent, contradict, or qualify, the account, which the accused gave to police in his interview, as to the circumstances in which the confrontation with Cuong occurred.
In that way, the evidence of HA would be particularly relevant to the issue whether the prosecution may prove that the accused was not acting in self-defence when he stabbed Cuong. I understand that that issue will be the central issue in the trial.
The charge against the accused — manslaughter — is, by its nature, a serious charge. It is in the interests of justice that the prosecution be able to call relevant evidence, that may assist the jury in its determination whether the prosecution has established the guilt of the accused man on that charge, beyond reasonable doubt. As I have explained, in my view, the evidence does have important probative value. It is a matter of concern that the charges against HA have been discontinued, and he has not been indemnified against prosecution in relation to them. The fact that that is so is not a matter of criticism for the prosecution; however, it is a circumstance that does bear on the issue, as to whether it is in the interests of justice that HA be required to give evidence in the present case.
Nevertheless, and taking into account the protective effect of s 128(7) of the Evidence Act, I am satisfied that the relevance and importance of the evidence to be given by HA, in the present case, is such that it is in the interests of justice that HA be required to give evidence pursuant to s 128(4)(b) of the Evidence Act.
Accordingly, HA is required to give evidence in the trial. For that purpose, he will be provided with a certificate under s 128(5) of the Act.
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