Director of Public Prosecutions v KT (Ruling 3)
[2025] VSC 399
•13 June 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2024 0120
| DPP | Crown |
| v | |
| KT | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 June 2025 |
DATE OF RULING: | 13 June 2025 |
DATE OF REASONS: | 26 June 2025 |
CASE MAY BE CITED AS: | DPP v KT (Ruling 3) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 399 |
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CRIMINAL LAW — Evidence — Murder — Lay opinion evidence — Whether defence permitted to adduce evidence from a prosecution witness that the deceased ‘would have’ badly bashed the accused — Whether evidence relevant — Whether evidence an opinion — Whether the evidence comes within s 78 of the Evidence Act 2008 (Vic) — Evidence not admissible — Evidence Act 2008 (Vic) ss 76, 77 & 78; Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill with Mr J Manning | Office of Public Prosecutions |
| For the Accused | Ms A Beech with Ms N Patel | Stary Norton Halphen |
HER HONOUR:
The accused, KT, is charged with the murder of Dr Ashley Gordon. The trial commenced on 12 June 2025. The evidence-in-chief of the witness LJ commenced on that day and concluded before lunch on 13 June. Immediately prior to cross-examination, the Court was advised that evidence which defence counsel intended to adduce would be objected to by the prosecution. Ms Beech, on behalf of KT, sought a ruling as to whether the evidence was admissible.
It was desirable that the matter be ruled on immediately to allow LJ to complete his evidence. I delivered my ruling on 13 June and indicated I would give written reasons later. These are those reasons.
An overview of the prosecution and defence cases is set out in my earlier ruling.[1] I will not repeat that overview.
[1]DPP v KT (Ruling 1) [2025] VSC 397.
The disputed evidence
The three boys who found themselves in the driveway of 2B Eildon Street were the accused, LJ and AG. AG is not a witness in this trial.
In evidence-in-chief, LJ said he was over the fence and did not see what happened between the deceased and the accused. However, LJ has previously said that he saw at least the start of the interaction, or altercation, between the deceased and the accused. It is anticipated that he will be taken to his prior statements and agree with what he has said on earlier occasions. Relevantly, it is expected he will say:
(a) He ran into the driveway area because he thought Dr Gordon was going to hit him with the car.
(b) Dr Gordon was driving aggressively and slammed on his brakes. He leapt out of his car, leaving the car door open and the engine running.
(c) He told police that they had seen needles and ‘stuff with steroids’ when they were in Dr Gordon’s garage, and Dr Gordon had ‘like roid rage. He was huge’.
(d) Before jumping the fence, he heard KT say ‘don’t bro, stop’ a few times.
(e) He heard KT say he wouldn’t run.
(f) He told police KT was backing up.
(g) When LJ was over the fence, he heard KT say ‘help’.
LJ was first spoken to by police on the morning of 16 January 2024, when police executed a search warrant at his home and homicide squad detectives entered his bedroom. The conversation between police and LJ was recorded. LJ’s father was also present during much of the conversation. At one point in the conversation, LJ’s father is critical of the deceased’s decision to chase the boys in his car and seems to blame the deceased for his own death. The following exchange then occurs:
LJ: That’s what – that’s why it was - - -
Father:Yeah.
LJ:Like, it just – because it – he would’ve bashed - - -
Father:Oh, he would’ve, yeah.
LJ: --- the ---
Father:Yeah.
LJ: - - - that kid so badly.
Father:Yeah.
The conversation between LJ and his father continues. LJ goes on to say that then he would have been running from the deceased. LJ’s father agrees he was in a ‘shit situation’. The informant, Detective Lewis, is present but not participating at this point in the conversation.
At the s 198B hearing, it was put to LJ that he said to police, ‘[the deceased] would have bashed [the accused] so badly’. He was then asked, ‘So your impression, from what you saw, is that [the deceased] was going to bash [KT] really badly?’. The question was objected to before it was answered. Ms Beech then asked LJ what he meant by the statement. LJ answered:
Well, before he was a much muscular person (sic), and like I said before in my statement previously, that [KT’s] a quite skinny kid, so by saying that, I was saying that he was a much larger person, and – with full of rage, ah in a one on one battle, I would say it – wouldn’t have gone well for [KT].
Ms Beech seeks to adduce evidence in the trial that LJ told the police that ‘the deceased would have bashed KT so badly’.
Defence submissions
Ms Beech submits the evidence is admissible as a lay opinion pursuant to the exception found in s 78 of the Evidence Act 2008 (Vic) (‘Act’). She submits the words are an opinion, and they are based on what LJ observed. The opinion is necessary to obtain an adequate account or understanding of what LJ observed in the driveway on this night.
Ms Beech submits that the defence case will be that it was reasonable for KT to interpret the deceased charging at him as being the first step towards a ‘serious assault’, and the fact that an eye witness, who has observed the same conduct and demeanour of the deceased, has the same impression, is ‘crucial’. She argues that the evidence allows the jury to properly understand the adjectives and verbs LJ has used in describing the deceased. It is highly relevant evidence of LJ’s perception based on what he observed. She argues that the ‘nuance of the interplay between the demeanour and the conduct could very well be lost on the jury in the absence of that final part of LJ’s perception’.
Prosecution submissions
Ms Churchill submits LJ can give evidence that the deceased was in a rage. That is an admissible lay opinion based on what he saw, heard or otherwise perceived. However, the evidence, ‘he would have bashed KT so badly’, is an inference drawn by LJ. The evidence is not relevant. A fact in issue here is the accused’s subjective belief at the time he grappled with the deceased. LJ’s belief cannot go to that issue, as LJ’s subjective belief cannot be attributed to the accused.
Alternatively, if the evidence is relevant, it is not an ‘opinion’ within the meaning of s 78 of the Act as it involves an element of speculation or guesswork. Further, it is not necessary to obtain an adequate account of what LJ observed of the deceased and KT on this night. LJ’s evidence (assuming he agrees with what he has said previously) is that he saw the deceased put his head down, run towards KT, grab him and try to wrestle him. This evidence is clear and easily understood. The evidence, ‘he would have bashed KT so badly’, is a conclusion reached by LJ based on an inference he has drawn. It is not the only inference open. The drawing of inferences is a matter for the jury, and not lay witnesses.
Legislation and legal principles
Part 3.3 of the Act deals with opinion evidence. The opinion rule is found in s 76 and states:
76 The opinion rule
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
Part 3.3 then lists four exceptions to the opinion rule. Sections 77 and 78 state:
77 Exception—evidence relevant otherwise than as opinion evidence
The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.
78 Exception—lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if—
(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.
The balance of the exceptions concern Aboriginal and Torres Strait Islander opinion evidence about traditional laws and customs,[2] and expert opinion evidence.[3]
[2]Evidence Act 2009 (Vic) s 78A (‘the Act’).
[3]Ibid s 79.
Section 77 has received very little judicial attention.[4] Arguably, evidence relied on as evidence of a perception, or as explanatory of behaviour, may come within this section. For example, if a witness rushed away from a fight because their perception was that an aggressor was about to hit them, the evidence may be relied upon not to prove that the aggressor was about to hit the witness, but to explain why the witness ran away. In such a situation, the use of the evidence may need to be limited pursuant to s 136.
[4]Richard Weinstein et al, Uniform Evidence in Australia (Lexis Nexis, 4th ed, 2023) 373.
Section 78 requires the Court to be satisfied of both the matters set out in paragraphs (a) and (b). The requirements are cumulative. Insofar as it is necessary to make findings of fact in order to determine whether the lay opinion evidence is admissible, the party seeking to admit the evidence must establish those facts on the balance of probabilities.[5]
[5]The Act s 142.
The term ‘opinion’ is not defined in the Act. An opinion has been held to be ‘an inference from observed and communicable data’.[6] At common law, non-expert opinion evidence was permitted ‘where it was very difficult for witnesses to convey what they had perceived about an event or condition without using rolled-up summaries of lay opinion – impressions or inferences – either in lieu of or in addition to whatever evidence they could give about the primary facts’.[7] However, an opinion about what a person thinks might happen, without having witnessed it occur, is more accurately described as a theory or speculation.
[6]Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 5) (1996) 64 FCR 73; (1996) 136 ALR 627, 75, cited with approval in Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 [10] (French CJ, Heydon and Bell JJ) (‘Lithgow City Council v Jackson’).
[7]Lithgow City Council v Jackson [45].
In Lithgow City Council v Jackson,[8] the High Court considered s 78 of the Act.[9] The respondent had brought proceedings in negligence against the appellant, arguing his injuries had been caused by tripping from a retaining wall. His injuries prevented him from recalling how he came to be injured. The respondent sought to rely on a statement contained in the notes of the attending ambulance officer or officers which included the statement, ‘? Fall from 1.5 metres onto concrete’. The ambulance officer(s) did not witness the fall and did not give evidence. The respondent was unsuccessful at trial and appealed. The Court of Appeal held the statement was an opinion and admissible under s 78 of the Act. The High Court held that the Court of Appeal was wrong to so hold. The High Court found the statement was so ambiguous as to be irrelevant, and in any event, it did not state an opinion. Further, if it did contain an opinion, it was not one which satisfied s 78 of the Act.
[8](2011) 244 CLR 352; [2011] HCA 36.
[9]The Court considered s 78 of the Evidence Act 1995 No 25 (NSW). This section is identical to s 78 of the Victorian Evidence Act 2008 (Vic).
The High Court discussed in some detail the meaning of s 78. Relying on that discussion, the following principles may be stated:
·Section 78 only applies to opinions given by those who actually witnessed the event about which the opinion is given.[10]
·The meaning of ‘perceived’ as used in s 78 is to observe by one of the five senses. It is concerned with the witness’ personal perception of a matter or event.[11]
·The ‘matter or event’ must be identified, so as to determine whether the opinion is based on the witness’ perception of that ‘matter or event’.
·Where the witness can state the facts, a good general rule is that he or she should do so, and thus leave the jury to draw their own conclusions.[12]
·It may be difficult, if not impossible, for an observer to separate out the inferences from the primary facts on which they are based. The function of s 78 is to permit reception of an opinion ‘where the primary facts on which it is based are too evanescent to remember or too complicated to be separately narrated’.[13]
·The word ‘necessary’ in s 78(b) does not mean ‘absolutely necessary’ or ‘essential’; it can mean merely ‘conducive’. However, it does not mean ‘helpful’, ‘not unreasonable’ or ‘possessing probative value’.[14]
[10]Lithgow City Council v Jackson [41].
[11]Ibid [43].
[12]Ibid [46], quoting Cornell v Green 10 Serg & Rawle 14, 16 (Pa Sup Ct, 1823) (Gibson J), approved by Wigmore, Evidence in Trials at Common Law, (1978) Chadbourn Revision Vol 7, 12 §1918.
[13]Ibid [48].
[14]Ibid [50]–[53].
Consideration
The first question is whether the evidence is relevant. LJ’s view of what he thought would happen between Dr Gordon and KT cannot be used to infer or suggest that KT held the same view. Importantly, KT had a knife. It will be a matter for the jury to determine how, if at all, this impacted KT’s thinking. The disputed evidence is a theory, not just as to what would happen (the deceased would have bashed KT), but also as to how KT would have been ‘bashed’ (‘badly’). LJ’s view, or theory, as to what would have occurred in a one-on-one fight is not relevant to the issue of what KT was thinking. It is arguably relevant to how Dr Gordon presented on this night. If approached in this way, many lay opinions would pass the test of relevance. Witnesses who were present at a scene could give their opinion on what they thought was going to happen next, based on what they had observed thus far.
If the evidence is relevant, I am very doubtful it comes within the meaning of ‘opinion’. The dividing line between a perception, an opinion, a theory, an inference, speculation and guesswork is not necessarily bright or clear. The Australian Law Reform Commission Interim Report 26 noted that the proposed s 78 revives the original rationale for lay opinion evidence, ‘based on the distinction between opinion based on the witness’ perception and mere uniformed speculation’.[15] In my view, LJ’s view about what the deceased ‘would have’ done to KT is speculation; it may be informed speculation, in the sense that LJ had knowledge or information as to how the deceased appeared and how he was behaving, but it is still speculation. For example, if a witness saw a vehicle driving at high speed and disappearing around a corner, and other evidence established that the vehicle struck a person 50 metres further along the roadway, the witness could not say that the vehicle ‘would have’ hit the person at high speed. That would be a theory, not an opinion. Perhaps a better example, more relevant to the facts of this case, is that if LJ had witnessed the accused become angry, approach the deceased and pull out his knife, LJ could not give evidence that the accused ‘would have’ stabbed the deceased.
[15]Law Reform Commission, Evidence (Report No 26, 1985) vol 1, 410 [740].
If I am wrong, and the evidence is an opinion, then I move to consider s 78(1)(a). Pursuant to that sub-section, it is necessary to identify the ‘matter or event’ which the person saw, heard or otherwise perceived. Here, LJ saw the deceased run towards KT with his head down, grab him and start to wrestle with him; that is the ‘matter or event’ upon which the opinion must be based. I accept that LJ’s opinion is based on this matter or event, which he witnessed. It may also be based on other matters or events he witnessed, such as the manner of the deceased’s driving. To the extent the opinion was based on LJ’s belief that the deceased used steroids, that would not be a ‘matter or event’ that LJ had heard, seen or otherwise perceived. It would be no more than a theory, and LJ would be using one theory to support another theory.
Finally, and accepting that the evidence is an opinion based on what LJ perceived, in my view the evidence is not necessary to obtain an adequate account or understanding of LJ’s perception of the events of this night. As the High Court stated in Lithgow City Council v Jackson, ‘the function of s 78(b) is to make up for incapacity of a witness to perceive the primary aspects of events and conditions, or to remember the perception, or to express the memory of that perception’.[16] LJ is capable of expressing what he observed on this night. He is capable of expressing admissible opinions, such as the deceased appeared to be in a rage. There is no real risk that his observations and admissible opinions will not be adequately or fairly understood by the jury. In the circumstances, I am not satisfied that the evidence is necessary to obtain an adequate account or understanding of LJ’s perceptions at the time the deceased and accused interacted in the driveway.
[16]Lithgow City Council v Jackson [51].
Conclusion
The disputed evidence is not admissible.
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