Director of Public Prosecutions v Ho - [2023] VSC 674

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

---

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

---

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.

---

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…

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 Director of Public Prosecutions v Ho

Details

AGLC: Director of Public Prosecutions v Ho [2023] VSC 674
Case: [2023] VSC 674
Decision Date: 20 November 2023

CaseChat Overview and Summary

In the case of Director of Public Prosecutions v Ho, the respondent, Ho, was on trial for the charge of manslaughter. The Director of Public Prosecutions, representing the interests of the state, sought to compel Ho to provide evidence in court. Ho's legal team argued against this, invoking the privilege against self-incrimination, a fundamental right protected under the Evidence Act 2008 (Vic). The matter was heard in the Supreme Court of Victoria, which was required to determine whether the interests of justice warranted Ho's testimony.

The court needed to resolve whether the statutory provisions of sections 128(4)(b), (5), and (7) of the Evidence Act 2008 (Vic) allowed for an exception to the privilege against self-incrimination. The decision hinged on balancing Ho's right to remain silent with the need for the court to hear all relevant evidence to ensure a fair trial. The court considered precedents such as X7 v Australian Crime Commission (2013) 248 CLR 92; Gideon v The Queen (2013) 237 A Crim R 326; The Queen v Lodhi (2006) 199 FLR 328; and Villain v State of Victoria [2021] VSC 354 to ascertain the scope of the privilege and its exceptions.

After thorough examination of the statutory framework and relevant case law, the Supreme Court concluded that the privilege against self-incrimination could be overridden in the interests of justice. The court found that compelling Ho to testify was necessary to ensure the integrity of the trial and the fair administration of justice. Consequently, the court ruled in favour of the Director of Public Prosecutions, mandating Ho to give evidence.

The final orders of the court required Ho to provide evidence in the trial for manslaughter, thereby ensuring that the trial could proceed with all necessary testimony to reach a just conclusion.

Orders