Director of Public Prosecutions v Lo (Ruling No 5)
[2018] VSC 150
•29 March 2018
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE | NOT RESTRICTED |
CRIMINAL DIVISION
S CR 2017 0114
| DIRECTOR OF PUBLIC PROSUCUTIONS |
| 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 5) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 150 |
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CRIMINAL LAW – Ruling – Defence argument for exclusion of certain electronic communications under ss 135, 137 Evidence Act or on the basis of relevance – Certain evidence excluded under s 137 – Other evidence excluded as having no prime facie relevance.
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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 Defence have raised objection to certain data, or messages contained in data, derived mainly from AB’s phone or from Call Charge Records (CCRs) for AB and Lo. An annotated chart was provided by the Defence indicating their objections,[1] but this chart ultimately became partly redundant once the Crown refined their position about evidence relied on and served two additional witness statements from the Informant relevant to electronic communications.[2] The Defence position as to objections was then further refined in argument on 15 March 2018.
[1]Document titled ‘The Accused’s Response to DPP v LO: Summary of Electronic Communication’, filed 7 March 2018.
[2]Notice of Additional Evidence, Statement of DSC Glen Scharper, deposed to on 23 February 2018; Statement of SDSC Scharper, deposed to on 14 March 2018. Filed on 14 March 2018.
The four CCR entries in the phone records
Mr Cahill, on behalf of Lo, argues for the exclusion of certain items of evidence obtained from the CCRs for Lo’s iPhone, and for one of Mr AB’s two iPhones. Those CCR’s show alleged communication between the two sources by SMS message.
The evidence from the CCRs is that four text messages were sent from Lo’s phone on 23 May at 12.52.34 pm, 12.53.04 pm, 12.53.37 pm and 12.53.50 pm,[3] to AB’s phone. The four SMS messages are also reflected in the CCRs for AB’s phone.[4]
[3]Depositions 1376.
[4]Depositions 1384.
Mr Cahill submitted that the data should be excluded by the Court in the exercise of discretion under ss 135 or 137 of the Evidence Act in the absence of any data confirming the content of the four messages sent on 23 May, or that the four messages even had any content.[5]
[5]Whilst Mr Cahill asserted that messages can be sent with no content, I have no evidence of this before me.
He submitted that AB alleged in his first police statement that, in a text message sent on 23 May, Lo said to him, ‘I need to kill someone, Breanna is not safe’.
Mr Cahill said AB is the only source of any evidence as to the words of the alleged representation by Lo about Breanna and needing to kill someone, that were said to be contained in an SMS sent by Lo that to him that day.
In AB’s first statement,[6] AB said he returned to Melbourne from Vietnam on 23 May 2016 at around 6.00 am and that when he turned his phone on that day there was an SMS message from Lo using the words referred to above. He said he called Lo back straight away and that this occurred between 9.00 am and 11.00 am, possibly 10.00 am, and that he was in the driveway of his Thornbury home at the time.
[6]Depositions 1546 [20].
Mr Cahill submitted that the evidence of receiving the incriminating SMS message from Lo on 23 May 2016 before 11.00 am did not fit with the objective evidence in the CCRs of text messages sent at 12.52-12.53 pm.
Also Mr Cahill referred to the fact that the CCRs showed that the AB phone was in the vicinity of Barkly Square, Brunswick at the time the four messages were recorded as having been sent and received and that Lo’s phone was in the vicinity of Bacchus Marsh at that time.
Mr Cahill also noted that AB said at paragraph 28 of the relevant statement that after receiving the message, he took his iPhone 4S to be repaired in a shop on Sydney Road, Brunswick, and went for lunch while he waited for the repair. Whilst waiting for the repair he said he still had his other iPhone with him and had transferred the SIM card from the broken phone over. The repair of the first mentioned phone took two hours. At paragraph 29, AB said:
the next thing I remember of that day was receiving SMS or WeChat messages from Trace. We may have even used WhatsApp as well. The next series of communications was about Tracy not feeling safe where she was. This exchange of messages occurred between 4.00 and 5.00 pm. I had not spoken to Tracy since the paedophile conversation.
Mr Cahill submitted that the police had obtained evidence of an exchange of messages between 4.00 pm and 5.00 pm.
It was therefore submitted that AB was not likely to be mistaken as to the timing of this seemingly important message from Lo about Breanna and that he said it occurred in the morning.
Mr Cahill submitted that there is no evidence in the download of Lo’s phone handset or AB’s phone handset, as to either the content of the four messages or the fact of the exchange of the four messages. The only information about them derives from the CCRs. Therefore, the probative value of the CCR data was weak and involved a high danger of unfair prejudice.
He referred the Court to paragraph 40 of the informant’s statement which was intended to clarify any queries about phone data information: ‘In all instances, provided there has been no manual deletion, SMS, MMS and call logs will appear in the handset and by extension, the phone download reports’.[7]
[7]Statement of DSC Scharper.
Mr Cahill said that whilst there is evidence that a data reset was performed on Lo’s phone, there is no evidence of manual deletion of data from AB’s handset.
Mr Cahill submitted that there was a worrying absence of any evidence in the download analysis of AB’s phone handset, showing the four text messages, despite the additional witness statements supplied by the informant Detective Scharper.
He submitted that the only other suggestions put forward by the informant’s clarifying statements were at paragraph 55, ‘The ability to download data from a mobile phone is dependent on the forensic equipment available,’ and at paragraph 73, ‘data or mobile entries may appear on CCRs but will not necessarily appear on a download or a mobile phone report due to a number of reasons such as deletion or an inability of the forensic extraction tool or tools to obtain that information’.
Mr Cahill said that the CCRs provided did not prove that there was ever any content in the four SMS messages.
Mr Cahill submitted that the evidence about the four messages was important because AB testified that Lo asked him to kill Hogan on three separate occasions, and on the Basha he was very firm about the accuracy of his memory that Lo asked him to kill the deceased. The first was in a phone call on the morning of 23 May at 9.00 am or 10.00 am.[8] The second was a text around 4.00 pm on 23 May.[9] The third was in a phone call on the morning of 24 May.[10]
[8]Transcript 75 [6]-[12].
[9]Ibid 76 [16]-[18].
[10]Ibid 75 [21]-[22].
The risk of unfair prejudice was because the jury would be liable to misuse the evidence of SMS data in the CCRs, showing an exchange of messages at around 12.52‑2.53 pm to infer that that was the occasion that AB received a message from Lo saying, ‘I need to kill someone Breanna is not safe’. This would be an unsafe and speculative inference in circumstances where AB’s statement referred to the text message about Breanna being seen by him in the morning in Thornbury. The risk of the jury adopting an unsafe inference about what could be deduced from the CCR’s would lead to unfair prejudice to the accused, outweighing the probative value of the evidence. Mr Cahill argued that the CCR data about the four messages was of low probative value without any other confirmatory information linking it to AB’s account of what Lo said in a text message to him that day.
Mr Cahill was asked to explain why he could not make the point before the jury about the absence of information in the phone downloads confirming the exchange of the four messages and the absence of evidence of content and why it would not be sufficient that the jury be warned about the drawing of inferences in a criminal trial. He submitted that the evidence was too important to risk the jury drawing speculative conclusions about what they can safely conclude from the CCRs.
Mr Cahill was asked why it was not relevant to the jury to know that text messages were sent by Lo to AB on the day he arrived home from Vietnam after midday, even if the times did not match accurately with AB’s memory of receiving them in the morning.
Would it not be a powerful point for the Defence if the CCRS showed no text messages were sent by Lo to AB that day? Is not the presence of evidence supporting the sending of SMS messages by Lo to AB, within hours of the period nominated by him, evidence that the jury would be entitled to use acting on the basis that AB’s memory about times might not be correct? After all AB flew in from Vietnam that morning on an overnight flight.
Ms Borg submitted that the evaluation of the evidence is a matter for the jury and that there were valid explanations put forward for the absence of confirmatory data in AB’s phone handset. She argued that the evidence was relevant and admissible.
In written submissions dated 13 March 2018, Ms Borg identified that there were two phones that were able to be analysed for their call data, one belonging to Lo and one belonging to AB. There was a third phone, also belonging to AB, that was unable to be analysed. In written submissions dated 19 March 2018, the Crown submitted that the evidence reveals that the phone of AB containing the four text messages was an iPhone 4S, and had an International Mobile Equipment Identity number (‘IMEI’) ending in 6690. This is the phone that AB was using while his other phone, an iPhone 5S, was being repaired. The Crown said that because the 4S was locked, the police were unable to retrieve information from that phone and analyse its contents.
In the 19 March submissions, the Crown argued that the evidence of the CCRs is probative insofar as it corroborates AB’s evidence of the high volume of communication that took place between him and Lo on 23 May. The Crown also submitted that it is a question for the jury to determine the strength of the evidence, and, even though the content of each SMS cannot be verified, the jury could legitimately conclude that the CCRs are evidence of frequent communication. The Crown argues that the evidence of the CCRs is not unfairly prejudicial.
In my view, the evidence of the four SMS messages in the CCRs is relevant to the Crown case, and if excluded, the absence of the evidence of the four messages would allow the jury to falsely conclude that there was no objective support for any text messages being sent by Lo to AB, at a time proximate to the period referred to by AB. The CCR’s provide important evidence confirming SMS communication between Lo and AB at a time highly relevant to the issues before the jury. In fact, both Lo’s CCR’s and AB’s CCR’s record the exchange of the four text messages at 12.53 pm.
In my view, it would be reasonably open to a jury to infer that AB is telling the truth about receiving an SMS message from Lo after he turned on his phone when he returned from Vietnam but that he is mistaken about the precise time at which he received the message. The statement provided by the informant does provide explanations for why evidence found in the CCR’s may not be able to be found on an a forensic analysis of a phone handset. I do not think the absence of confirmatory data on AB’s or Lo’s handset as to the exchange of the four messages or the absence of content information in the phone records obtained from the providers creates a danger of unfair prejudice outweighing the probative value of the evidence. I decline to exclude the evidence under ss 135 or 137 of the Evidence Act.
The less recent communications between Lo and AB
The Crown wishes to adduce evidence of communications between Lo and AB on 13 March 2016 along with 27 March and 23 April 2016, before Lo went with Hogan to Bacchus Marsh to live and look for work. The communications are alleged by the Crown to contain relevant information as to Lo and AB’s relationship, in which she sought help and confided her frustrations with her visa requirements to AB, when she was living in Shepparton. The Crown argue that Lo shows a knowledge of AB and shows that she was able to manipulate him. On one occasion, on 27 March, Lo complains about a person who is ‘annoying as fuck’ and AB offers to ‘get rid of the problem’. She declines saying ‘nah never mind’. In communications later on the same day, she expresses irritation with AB and the following exchange occurs:
Lo: Fuck off now
AB: Thankyou Trace
Lo: You’re welcome. And sorry
AB: I can take it
Lo: I know you can that’s why I said it
AB: Good. Hope you feel better.
Lo: I know you.
On another occasion, on 23 April, Lo complains to AB about her lack of time to find a job because her visa is running out.
The Defence objects to the abovementioned communications between Lo and AB in March and April as irrelevant or as requiring exclusion under s 137 or the exercise of discretion under s 135 of the Evidence Act. In my view, the March and April communications have a very low probative value. The messages in which Lo complains about her circumstances to AB, and he offers to get rid of the problem, on 13 March 2016, are likely to invite speculation by the jury in circumstances where there is insufficient other information available to make sense of the messages. They concern Lo’s dissatisfaction with her predicament at a different period of time from the period relevant to the murder of Hogan. She was living in a different part of Victoria with different people and different employment. The fact that Lo confides her moment-to-moment frustrations to AB via online or other message services about circumstances that cannot be known to the jury is of very limited relevance to the trial. It is difficult to infer what was intended by AB’s responses to Lo’s complaints, especially without knowing the details of who or what was upsetting her. In my view, the risk of speculation or misuse by the jury outweighs any modest probative value, even if directions were given not to speculate about the evidence. The jury may be left wondering what the point of the evidence is. The evidence must be excluded under s 137 as its probative value is outweighed by the danger of unfair prejudice. Having regard to this determination, I need not consider s 135.
The word ‘cunt’ in Lo’s SMS messages
The Defence objects to the inclusion of the words ‘cunt’ or ‘fucking cunts’ in messages sent by Lo, on the basis that the risk of unfair prejudice outweighs the probative value of the evidence (s 137 of the Evidence Act). The Defence seeks redaction of those words. The words only appear on a few sporadic occasions during messaging between Lo and Chris McFarlane on 22 May 2016.
In my view, the limited occasions when the word was used are easily redacted without losing the flavour of Lo’s frustration. The inclusion of the word adds little to the dialogue when read as a whole. The word remains a word which is highly offensive to many members of the community and although it was the word used by the accused, the probative value of its inclusion is outweighed by the danger of unfair prejudice. It should be redacted in accordance with this ruling under s 137 of the Evidence Act.
AB’s messages to non-witnesses about his protective feelings about Breanna
The Crown wishes to adduce evidence of communications by AB with non-witnesses obtained from his call log, including a message sent on 23 January 2016 to ‘Cali’; on 24 April 2016, to ’Kate’; and on 14 May 2016 to ‘Ann’. AB communicates with these recipients about his protective feelings towards his daughter. The Crown seeks to lead the messages to support their case that AB’s attitude towards his daughter during 2016 was strongly protective. This is said to be important because of the Crown case that one of the inducements put forward by Lo to encourage him to kill Hogan was that AB’s daughter Breanna was not safe, that Hogan was a paedophile and had downloaded photos into his phone of Breanna and knew where she lived. AB is expected to give evidence to this effect and no doubt will testify as to the strong protective feelings he held toward his daughter. The Defence objects to the messages on the basis of relevance. There is no evidence that Lo was aware of the content of these messages sent by AB to others.
In my view, the evidence contains self-serving statements that would only become relevant if it was suggested to AB in cross-examination that he was not telling the truth or was exaggerating his strong protective feelings toward his daughter. The evidence otherwise has no prima facie relevance in the trial and should not be led unless circumstances arise making it relevant.
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