Director of Public Prosecutions v Lo (Ruling No 3)
[2018] VSC 149
•29 March 2018
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE | NOT RESTRICTED |
CRIMINAL DIVISION
S CR 2017 0114
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YU TUNG LO |
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JUDGE: | Jane Dixon J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12, 14-16, 19, 22, 26, 28 February, 1, 8, 15 March 2018 |
DATE OF RULING: | 29 March 2018 |
CASE MAY BE CITED AS: | DPP v Lo (Ruling No 3) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 149 |
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CRIMINAL LAW – Ruling – Relevance of evidence about visit by marriage celebrant to make arrangements for a marriage between the accused and the deceased - Visit took place the night before the murder – Defence application for exclusion of evidence under ss 135 or 137 Evidence Act - Consequences for parties in respect of the potential for other evidence to be adduced if marriage celebrant evidence admitted.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Borg Ms M Stylianou | Office of Public Prosecutions |
| For the Accused | Mr M Cahill SC Ms K Rolfe | Paul Vale Criminal Law |
HER HONOUR:
The factual background to this ruling may be found in my first ruling in this matter.[1]
[1]DPP v Lo (Ruling No 1) [2017] VSC 816.
The Defence have now indicated that they object to the Crown leading evidence from Mark Davies, a marriage celebrant.[2] Mr Davies provides evidence that he attended Hogan’s home in Maddingley at Hogan’s request on 23 May 2016 at fairly short notice.
[2]Depositions 567.
In the presence of both Hogan and Lo, Mr Davies explained the procedures involved in arranging to marry, and, after both Hogan and Lo read the relevant forms and indicated their understanding of what was conveyed to them, they each signed a ‘Notice of Intended Marriage‘ form which was then witnessed by Davies. They then both signed a Marriage Ceremony Agreement form. The latter form was incorrectly dated 22 May 2016.
Mr Davies was informed that Lo was due to return to China on about 4 June but would return just before the planned wedding date of 24 June 2016 at 9.00 am.
The Defence objects to the evidence on the grounds of relevance. Mr Cahill argued that, although the Crown rely on the evidence as relationship and context evidence, it is a confusing piece of evidence for the jury. He argued that it is counter-intuitive to the Crown case that on the night of 23 May, Lo made a request that AB kill Hogan—the same night as the attendance of the marriage celebrant.
If the evidence were put before the jury, there would be a risk that the jury might be misled into thinking that Hogan wanted to marry Lo because he loved and cared about her. This would lead to the necessity for the Defence to adduce evidence from a number of other witnesses including Raine, Bartlett, Hughes, and Phelan showing an alternative scenario that Hogan had some other more utilitarian motive for wanting to marry Lo. Such evidence would reveal that Hogan had been actively seeking to marry a young Asian woman for some months and had told others of his willingness to facilitate such a person getting an Australian visa through such an arrangement.
Mr Cahill submitted that exploration of this issue would be time-wasting and distracting for the jury, and that the evidence of the marriage celebrant had insufficient relevance to the allegation of Lo’s complicity in the murder of Hogan. The evidence was potentially prejudicial as the jury may conclude that Lo was willing to go through with the marriage, whereas the Defence case was that Lo already had plans on foot to leave Hogan by 23 May. This evidence was to be found in communications she had with others about needing an alternative place to live and Mr Cahill pointed out that Hogan’s representations to Hughes include the statement to Hughes that he did not need to worry about the noise caused by their arguments because Lo was leaving soon. Mr Cahill argued that Lo had already booked a flight home to China for early June.[3]
[3]Transcript 166.
The Defence case was that Lo was keen to finish her 88 days agricultural work to obtain a visa by that means, allowing her to later return to Australia and that the evidence about the marriage celebrant would only confuse the jury.
Also that there was the potential for unfair prejudice to Lo because a jury might regard her as conniving a sham marriage, which is against the law.
Mr Cahill also submitted that Lo’s comment indicating agreement when told not to make a fuss in the presence of the marriage celebrant, ‘Don’t worry, I am a good liar and actor‘ should be excluded as unfairly prejudicial if the marriage celebrant evidence were permitted to be led.
The Crown argued that marriage celebrant evidence to be led from Davies (I take this as extending also to Hughes and other witnesses who are able to testify about the planned attendance of the marriage celebrant) was relevant to show the evolving and complex nature of the relationship between Hogan and Lo. Davies made direct observations of Hogan and Lo relating with one another the very night before the murder.
The Crown argued that Lo had a very tight deadline to meet the 88 days of agricultural work required to obtain a further visa to remain in or return to Australia. It had been conveyed to Davies that soon after the date set down for the marriage ceremony, Lo would apply for a bridging visa. At the time of signing the marriage ceremony forms, the marriage was a back-up plan for Lo to secure a visa in case she could not complete enough farm work in the allotted time.
The Crown submitted that Hogan and Lo had a big fight after the celebrant had left and that flowing from that fight Hogan grabbed Lo’s phone and saw and read aloud her SMS messages to AB, in which she communicated that she wanted Hogan dead and gave details of his description to AB. The Crown submitted that the occurrence of that fight was very important to the Crown case.
The evidence from Davies tied in with other evidence, that far from being a victim of controlling and abusive behaviour by Hogan, and needing to escape him on the night of the 23 May, Lo had the option to leave but chose to stay for her own pragmatic reasons.
The Crown submitted that the argument after the marriage celebrant left pushed Lo further towards wanting to kill Hogan, and that her anger towards Hogan reached a crescendo. This led to the more strident and urgent exhortations to AB on the morning of the murder.
The evidence from the celebrant would allow the jury to assess the suggestion that Lo was a victim of abuse and wanted to escape from Hogan and move somewhere else during the period preceding the murder of Hogan.
To the contrary, the Crown submitted, Lo wanted the confrontation to occur between AB and Hogan on the morning of 24 May and deliberately placed her bags behind Hogan’s van in the driveway to obstruct him from leaving the premises before AB got there.
The Crown argued that there was no unfair prejudice arising from the evidence about the planned marriage ceremony, which may well have been planned as a marriage of convenience for both Hogan and Lo, since both apparently wanted the same goal. Any concern about the unlawful nature of a sham marriage can be dealt with by directions to the jury.
The Crown argued that witnesses such as Raine, Phelan, Bartlett and Hughes, who could speak to Hogan’s prior interest in marrying other Asian women with visa problems, added nothing to the case. Also that the comment about being a good liar and actor was important to the Crown and was relevant relationship evidence showing Lo was prepared to join in a deception with Hogan.
The Defence argued that the celebrant evidence should be excluded altogether under ss 135 or 137 of the Evidence Act. Section 135 is a general discretion to exclude evidence when the probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party; be misleading or confusing; cause or result in an undue waste of time; or unnecessarily demean the deceased in a criminal proceeding for a homicide offence. Section 137 is a mandatory provision applicable in criminal proceedings to exclude evidence adduced by the Crown where the probative value is outweighed by the danger of unfair prejudice to the accused.
Under the Evidence Act, evidence is prima facie admissible if it is relevant.[4] In making an application to exclude evidence under ss 135 or 137, the Defence bears the onus of showing that the danger of unfair prejudice outweighs the probative value.[5] ‘Probative value’ has been defined in the Evidence Act as ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’, and it has been construed as referring to evidence taken at its highest.[6] The test for unfair prejudice refers to the danger that the jury may misuse or overvalue the evidence, despite directions given by the judge.[7]
[4] Evidence Act s 56.
[5]As a matter of practice, the party seeking to exclude relevant evidence bears the burden of satisfying the grounds for exclusion; although evidence found to give rise to the danger of unfair prejudice must be excluded and no discretion arises once that conclusion is reached.
[6]IMM v The Queen (2016) 257 CLR 300.
[7]‘Unfair prejudice may be occasioned because evidence has some quality which is thought to give it more weight in the jury's assessment than it warrants or because it is apt to invite the jury to draw an inference about some matter which would ordinarily be excluded from evidence.’ R v Dickman [2017] HCA 24 [48] citing Festa v R (2001) 208 CLR 593, 602-3 [22] per Gleeson J.
In my view, the marriage celebrant evidence from Davies and Hughes is relevant and admissible as context and relationship evidence. Robson AJA in WFS v R (with whom Buchanan and Whelan JJA agreed),[8] stated certain principles applicable when determining the admissibility of relationship evidence. His Honour held that the key consideration in making a determination of admissibility of evidence as relationship/context evidence is relevance, under ss 55-56 Evidence Act. He held further that evidence of relationship may be relevant as ‘part of the essential background against which the evidence of the parties necessarily falls to be evaluated.’[9] It ‘must not be used to establish that the accused is more likely to have committed [the offence];’ and ‘it may be used to assess and evaluate the evidence’ of each party.[10]
[8]WFS v R (2011) 33 VR 406, 412 [38].
[9]Ibid.
[10]Ibid.
In relation to context evidence, Hayne J has written:
evidence of what happened on a particular occasion will often make little sense (or at least convey a very different picture) if evidence of the occasion in question is not set in its proper factual context…. [Such evidence] is relevant because it provides an important part of the context within which the events are said to have occurred, and without which the… evidence would be incomplete.[11]
[11]HML v R (2008) 235 CLR 334, 401 [180].
I am of the view that evidence as to the events in the household, the night before the murder, and evidence of the complex nature of the relationship between Hogan and Lo is relevant. As submitted by the Crown, the evidence is relevant to show that regardless of Lo’s frustration with Hogan, and although she may have considered moving out of his house and finding alternative accommodation on the night of the 23 May, there is an available inference that she chose not to do so for pragmatic reasons, including the prospect of putting in place a backup plan for securing a visa, being a marriage of convenience to Hogan. The evidence places the suggestion of an abusive relationship in perspective.
Whilst a sham marriage is potentially unlawful, any concern about such misconduct is easily addressed by remedial directions. I do not consider that any unfair prejudice, which may arise from the jury learning of a planned sham marriage or marriage of convenience between Hogan and Lo, outweighs the probative value of the evidence. The evidence of the arrangement to marry is admissible relationship evidence fitting with other evidence of the couple’s seemingly inconsistent and contradictory behaviour and attitude towards one another in the lead up to the murder. I do not think that the fact that it does not support a scenario of continuous hostility or conflict makes the evidence irrelevant.
However, I do consider that Lo’s comment about being a good liar and actor is highly prejudicial and should be excluded under s 137 of the Evidence Act. The inflammatory character of the comment may magnify and be magnified by evidence of other alleged lies told by Lo, relied on by the Crown as incriminating conduct or as relevant to impeaching the credit of her story of abuse.
I accept that if the marriage celebrant evidence is led by the Crown, the Defence should be entitled to adduce evidence supporting a counter-narrative that Hogan had been interested in a fairly precipitous marriage with other women; including other non-citizens in the relatively recent past, prior to the murder. This does tend to support the hypothesis that Hogan had his own pragmatic reasons for seeking a sham marriage or a marriage of convenience with Lo and that he was not simply infatuated with Lo. Even though this evidence, adduced by way of a counter narrative, may lengthen the trial I do not think that the risk of lengthening the trial is a sufficient reason for excluding the evidence under ss 135 or 137 of the Evidence Act in light of my view that the marriage celebrant evidence does have significant relevance to the issues in the trial. For completeness, I should add that the temporal proximity of the meeting between Hogan, Lo and the marriage celebrant and the killing of Hogan enhances its relevance. Similarly, Lo’s complaints of repeatedly being raped and abused by Hogan over the same period, contribute to my view that the marriage celebrant evidence is important evidence for the Crown whilst the danger of unfair prejudice is slight.
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