Director of Public Prosecutions v Lu (Ruling No 1)
[2022] VSC 162
•31 March 2022
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Not Restricted |
S ECR 2021 0140
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ZHUO HUI LU | Accused |
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JUDGE: | Fox J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 March 2022 |
DATE OF RULING: | 31 March 2022 |
CASE MAY BE CITED AS: | DPP v Lu (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2022] VSC 162 |
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CRIMINAL LAW – Evidence – Accused charged with dangerous driving causing death – Objection by accused to admissibility of hearsay evidence – Whether evidence relevant – Section 66 exception – Whether probative value of evidence outweighed by the danger of unfair prejudice – Evidence Act 2008, ss 55, 56, 66 and 137.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M Mahady with Ms S Clancy | Office of Public Prosecutions |
| For the Accused | Ms P Marcou with Mr T Brown | Markotich Lawyers |
HER HONOUR:
Introduction
Mr Lu is charged with one count of dangerous driving causing death.
The prosecution seek to lead hearsay evidence from two witnesses as to what they overheard the witness Brina Ignatidis say to her mother shortly after the collision. The prosecution submits the evidence is relevant and admissible as an exception to the hearsay rule pursuant to s 66 of the Evidence Act 2008 (Vic) (“Act”).
The defence object to the evidence on the following alternative bases:
(a)the evidence is not relevant; or
(b)if relevant, the evidence should be excluded pursuant to s 137 of the Act.
The defence agree the evidence is hearsay and, if relevant, the evidence would be admissible pursuant to s 66 unless excluded pursuant to s 137 of the Act.
Overview of the prosecution case
It is alleged that on the evening of 18 August 2018, the accused drove his van through a traffic-light controlled pedestrian crossing, hitting and killing ten year old Jack Power (“Jack”). Jack had been using the crossing, together with his six year old sister, Stephanie Power (“Stephanie”), and 12 year old Brina Ignatidis (“Brina”). Jack was behind his sister and Brina at the time he was struck.
The accused immediately stopped at the scene and went to assist Jack. Two witnesses, Jennifer Green and Lennon Jones, heard screaming and came out of their nearby house. Ms Green and Mr Jones assisted Brina and Stephanie, who were distraught.
The prosecution case is that the vehicle traffic lights were red at the time of the collision, and the accused, due to inattention, failed to stop as required. In that way, his driving was dangerous. There is no allegation of speed or fatigue, and no other basis on which it is said the driving was dangerous.
The disputed evidence
The evidence of Jennifer Green
Jennifer Green lived nearby with her partner, Lennon Jones. She was at home when she heard distressed screaming. She ran outside and found two girls in her driveway. She went to assist and comfort them. The elder girl used Mr Jones’ phone to call her mother. The mother of the elder girl arrived, and Ms Green states, “I heard the girls say they ‘had the green light’“. The elder girl also stated that the boy went “under the van”. She offered for the girls to come inside and wait in her house, away from the commotion, and the mother gave permission. She brought them inside and put the TV on. The mother came in once to check on them, and then once more to collect them.
Ms Green made handwritten notes on the night of the collision. She made a police statement dated 3 October 2018, and after setting out some preliminary matters, she relied on those notes for the balance of her statement. Her notes include the above statement about hearing “the girls” say they “had the green light”.
Ms Green was cross-examined at a committal hearing in July 2019. She said she would have discussed what had happened with Mr Jones before writing her notes, and the contents were “contributed to” by Mr Jones.[1] She said everything she said to the girls is not in her notes, but she does not remember what else she said. She did ask them where they lived. She did not hear the telephone conversation between the elder girl and her mother. She would guess the mother arrived about ten minutes after the telephone call.
[1]Deps p 291.
She said she does remember the mother saying, “What were you doing?” or something to that effect.[2] She didn’t hear what the girl said aside from “We had the green”, or something to that effect. She “wasn’t listening in that much”.[3] It was put to her, inaccurately but without objection, that her notes record, “I heard the girl say, ‘had the green light’”.[4] She was asked which girl said this, and she answered the older one. She said the younger one was not speaking.
The evidence of Lennon Jones
[2]Deps p 293.
[3]Deps p 294.
[4]Her notes in fact record, ‘I heard the girls [plural] say they “had the green light’’’.
Lennon Jones made a police statement on 16 October 2018. He also heard screaming, and went outside. By this stage, Ms Green was outside with the two girls. He gave the older girl his phone and she called her mum. He then grabbed his phone from her and called 000, this was at 6:25pm. He said that during this time, the older child’s parents arrived. He was standing nearby and he heard “the parent” ask her, “What were you doing?”. The older child replied, “We were doing the right thing. We crossed on the green”. She was pointing to the lights as she said this. When he returned inside, he noticed the two girls were on the couch, watching TV. The mother of the older girl then came inside and retrieved them.
Mr Jones was also cross-examined at the committal hearing. He said at the time he made his police statement, he was reading from notes he had made on his phone. He made those notes on the night of the accident. He said he and Ms Green made notes at the same time but in different areas, because they decided that would be best. He no longer has his notes. He asked police if they wanted them, but they said “this copy would be fine because I essentially said what was on that in this”, meaning his statement.[5] He said he did read Ms Green’s notes before making his statement in October, he probably read her notes the night of the collision or some days later. He said they discussed it after they had written their notes, but “we did not make modifications to the notes after”.[6]
[5]Deps p 296.
[6]Deps p 298.
He said the words, “We were doing the right thing. We crossed on the green”, is not a verbatim quote. The girl was pointing in the general direction of the crossing when she said this. He cannot remember the exact words, but he does remember the effect of what was said.[7]
The evidence of Brina Ignatidis
[7]Deps p 300-301.
Brina participated in a VARE on 18 August 2018 commencing at 7:54pm. This was approximately one and a half hours after the incident. Relevant to this issue, Brina said a “lovely couple” came from the house behind and asked if they were okay. The lady’s husband gave her his phone so she could contact her mother. She said her mother finally answered, and “I told her everything of what happened”.[8] She was not asked, and did not provide, any further details. Brina said her mother then “came straight here”.[9] There is no evidence from Brina about what she said to her mother at the scene. Brina said the lady, Jen, asked if they would like to come inside and watch a movie, and her mother said that would be great, so they went inside.
[8]VARE of Brina Ignatidis, Q&A 10.
[9]Ibid.
Brina’s mother is not a witness in the trial and never made a statement.
In her VARE, Brina told police that the pedestrian light was green at the time they used the crossing.
The defence submissions
The defence agree that the fact in issue in the trial is whether the vehicle traffic lights faced by the accused were red at the time of the collision. However, they submit “the position of the deceased at the time of the collision, proximate to the two child witnesses, must be considered”, and the evidence of the previous representation does not address this issue. Therefore, there is “an initial fundamental flaw” in the evidence and it is not relevant. Further, the evidence is of such a “weak and tenuous nature” that it cannot be relevant to any fact in issue in the proceeding.
In developing this argument, the defence referred to what was said in IMM v The Queen,[10] namely that there may be cases where the evidence is so incredible, fanciful or preposterous that it is incapable of rationally affecting the probability of the existence of a fact in issue.[11] The evidence of Ms Green and Mr Jones falls into this category, not because the witnesses themselves are preposterous or untruthful, but because of the myriad of other issues that rob the evidence of any capacity to rationally affect the question of whether the pedestrian traffic light was green or red. The defence relied on three decisions, all identification cases, where IMM v The Queen had been considered and applied.[12]
[10](2016) 257 CLR 300.
[11]Ibid at 312, [39].
[12]DPP v Hague [2018] VSCA 39; Bayley v The Queen [2016] VSCA 160; Dempsey (a pseudonym) v The Queen [2019] VSCA 224.
The defence submit that Mr Jones cannot remember the exact words used by Brina, and unless the actual words used are recounted, the probative value of the evidence is tenuous and weak. It is unclear what Brina pointed to when she said words to the effect that they crossed on the green, and she may have pointed to either the pedestrian light or the traffic light. Further, the initial notes made by Mr Jones on his phone have been destroyed; he read Ms Green’s notes prior to making his statement, thus his account may have been contaminated; and he is unable to provide any details of the conversation between the two child witnesses prior to the arrival of Brina’s mother. He is also unable to provide any additional details of what Brina said to her mother at the scene.
The probative value of Ms Green’s evidence is also said to be weak. She made notes of what occurred on the night, but spoke with Mr Jones before she did, and therefore whether her notes are “contaminated”, or the product of “unconscious influence”, is in issue. The clarity of her evidence is impaired by the qualifications she made at committal, including that she “wasn’t listening in that much”.
Both Mr Jones’ and Ms Green’s observations were made after a “highly emotive accident involving a child”, and given those circumstances, the defence submit the “general unreliability” of their evidence is significant. The police also failed to ask Brina about what she said to her mother at the scene; failed to asked Stephanie about what Brina said to her mother at the scene; and failed to obtain Mr Jones’ notes. These omissions greatly reduce the probative value of the evidence. A further significant problem is the police failure to take a statement from Brina’s mother. This failure means there is no account available that puts the evidence in its proper context. In combination, all these matters leave the evidence with no probative value and no relevance.
The defence submit that if relevant, the evidence should be excluded pursuant to s 137 of the Act. They rely on the same factors to argue that if the evidence is relevant, it is barely relevant and of low probative value, and outweighed by the danger of unfair prejudice.
The danger of unfair prejudice is said to flow from three main factors: the danger the jury will overestimate the value of the evidence; the fact the defence has “no ability to test and unravel the process of the observations of either witness”; and the fact there is no “independent evidence available to the accused to cross examine the witnesses”. The omissions in the police investigation leave the defence unable to meaningfully test or challenge the evidence, and any judicial warning or direction will not be sufficient to cure the danger of unfair prejudice that arises from the evidence.
In reply, the defence submitted that whilst Brina is an available witness, given the delay and her young age, she is now unlikely to have any genuine memory of what occurred nearly four years ago. As a result, they will be unable to meaningfully test the evidence through cross-examination of Brina, and her availability will not ameliorate any prejudice.
The prosecution submissions
The prosecution submit the evidence is relevant to the fact in issue, namely what colour was the traffic light facing the accused.
They agree the evidence is hearsay, however it is admissible pursuant to the exception found in s 66 of the Act. At the time Brina made the representation about the asserted fact, the collision had just occurred. The events were fresh in her mind.
The prosecution submit that consistent with the High Court in IMM v The Queen, the Court must assume the jury will accept the evidence as credible and reliable. The jury may use the evidence as evidence that the pedestrian light was in fact green when the children crossed the road, and it is capable of having significant probative value.
They argue that many of the matters raised by defence may be the subject of cross-examination, and/or argument as to why the evidence should not be accepted. However, there is no risk that a jury would reason in an impermissible way, or give the evidence undue weight. Further, the jury will be directed as to how they may use the evidence.
Analysis
The fact in issue
Here, the fact in issue is whether the accused failed to stop at a red traffic light. In the circumstances of this case, if the prosecution cannot prove that the traffic light faced by the accused was red, the accused will be acquitted.
Thus whether the pedestrian light was green or red is also a fact in issue. If the children had a green pedestrian “walking man” light, then the accused must have faced a red traffic light.
Relevance
Section 55 of the Act sets a low threshold for the admission of evidence. The evidence may be of weak probative value, but relevant. The words, “if it were accepted”, require relevance to be determined on the assumption that the tribunal of fact will accept the evidence. This excludes considerations of reliability or weight. There must be a logical connection between the evidence and the fact in issue, and the challenged evidence must be looked at in the context of the acts alleged and matters in dispute.[13] Common sense is to be used when deciding questions of relevance.
[13]DPP v Paulino [2017] VSCA 38 at [67] per Priest JA.
The defence submissions that the evidence is not relevant to a fact in issue cannot be accepted. The evidence goes directly to the fact in issue, namely what colour was the pedestrian light at the time of the collision? The distance between the deceased and the other two children at the time of the collision may be a fact in issue in the trial, but it is not the only fact in issue, nor the central fact in issue.
Whilst there may be cases where the evidence is of such a weak and tenuous nature that it would not be relevant,[14] the evidence here is not of that type. The evidence comes from two sober, rational and independent adult witnesses as to what they heard Brina say to her mother very shortly after the collision about the colour of the pedestrian light. The evidence could not reasonably be described as “weak and tenuous”.
[14]IMM v The Queen (2016) CLR 300 at 300, [39] and 314-5, [50].
I find the evidence is relevant.
Hearsay
There is no dispute that the evidence of both Ms Green and Mr Jones is hearsay, given the purpose for which the prosecution seek to lead the evidence. What Brina said to her mother is a representation.[15] In the circumstances, it can reasonably be supposed that Brina intended to assert that the pedestrian light was green.[16] The prosecution are seeking to prove the pedestrian light was, in fact, green. The evidence of both Ms Green and Mr Jones, as to what they heard Brina say to her mother, is firsthand hearsay. It is inadmissible unless it comes within an exception.[17]
[15]See the Dictionary to the Act, Part 1- Definitions.
[16]Section 59(1) and (2A).
[17]Section 62.
Section 66
Section 66 only applies if the person who made the representation has been, or is to be, called as a witness in the proceedings. Brina will be called by the prosecution as a witness. It is not necessary for the maker to remember making the representation, or give evidence about the making of the previous representation.[18]
[18]Singh v The Queen [2011] VSCA 263 at [18]; R v Brooks (No 3) [2017] NSWSC 261 at [11].
For the evidence to come within this exception, the asserted fact must be “fresh in the memory” of the person who made the representation. In determining this question, the Court may take into account all matters it considers relevant, including the matters set out in s 66(2A) of the Act. The “freshness” must exist at the time the previous representation is made.
At the time Brina made the statement to her mother, the collision had only just occurred. She was still at the scene. I have no difficulty concluding that the asserted fact was fresh in the memory of Brina at the time she spoke to her mother.
The defence concession that the evidence falls within this exception is properly made. The evidence is admissible pursuant to s 66 of the Act.
Section 137
If evidence is admissible as an exception to the hearsay rule, it remains subject to other exclusionary provisions of the Act, such as s 137.[19]
[19]ISJ v The Queen (2012) 38 VR 23 at 38; [2012] VSCA 321 at [52].
Pursuant to s 137, a court must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused. “Probative value of evidence” is defined in the Act’s dictionary to mean, “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.
The onus is on the accused to persuade the trial judge that the danger of unfair prejudice of the evidence outweighs its probative value.[20] The possible use to which the evidence might be put must be taken at its highest. No assessment of the credibility or reliability of the evidence is required or permitted.[21]
[20]R v Polkinghorne (1999) 108 A Crim R 189 at 197-8, [51].
[21]IMM v The Queen (2016) CLR 300 at 315-316, [52] – [54].
When considering the probative value of the evidence, it must be viewed in the context of all the evidence in the case. Here, the challenged evidence is about the central issue in the trial, however it is hearsay. At this pre-trial stage, it is unknown to what extent Brina will be challenged in cross-examination about the colour of the pedestrian light, but given the defence is the accused had a green light, I expect the challenge to be significant. The evidence is relevant to the key fact in issue. In my view, the evidence has high probative value.
It is next necessary to consider whether there is a danger of unfair prejudice to the accused if the evidence is admitted. Evidence may be unfairly prejudicial to a party if there is a real risk that the evidence will be misused by the jury in some unfair way.[22] That is, the evidence will provoke an irrational or emotional response; or be given more weight by the jury than it deserves; or will be misused in a manner that is logically unconnected with the issues in the case.
[22]R v BD (1997) 94 A Crim R 131 at 139 per Hunt CJ at CL.
The defence submission that they cannot “test and unravel” the process of the observations of either witness does not, in the circumstances here, create a danger of unfair prejudice. The defence can test the evidence of both witnesses through cross-examination, and highlight the gaps and deficiencies in the police investigation. If they wish, they can cross-examine Brina about the representation, although I accept the delay has likely created difficulties for the defence when cross-examining Brina. There may also be sound forensic reasons not to take that course. However in my view, there is nothing unusual or special about the evidence here that renders it incapable of being tested. The submission that there is “no independent evidence available to the accused to cross examine the witnesses”, and this creates a danger of unfair prejudice, is not persuasive. There is often no such evidence available. Both these types of issues routinely arise in criminal trials.
When considering whether the probative value of the evidence is outweighed by the danger of unfair prejudice, it is appropriate to have regard to any warnings or directions that may be given, and whether they would remove or reduce the danger of unfair prejudice. In my view, the risk the jury will overestimate the value of the evidence, to the extent there are any risks, can be addressed by judicial direction. For example, a jury may be directed as to what the evidence is, and is not, capable of proving. In particular, any risk that the jury will mistake the evidence for independent evidence can be cured by giving a direction which includes:
·When considering the evidence of Ms Green and Mr Jones about what they heard Brina say, it is important to remember that just because a person says something on more than one occasion, that does not mean that what they say is truthful or accurate. A false or inaccurate statement does not become true and accurate by virtue of it being repeated; and
·It would be a mistake to treat this as evidence that is independent of Brina. Although Ms Green and Mr Jones gave evidence in this Court about what Brina said, it was Brina who was the source of that evidence. You must not mistake the evidence of Ms Green or Mr Jones for independent evidence about what colour the pedestrian lights were.
Such directions are routinely given, understood and followed by juries.
Hearsay evidence attracts the provisions of ss 31-34 of the Jury Directions Act 2015, as it is evidence of a kind that may be unreliable. It is premature to consider whether any request will be made or warning given. I simply note, at this point, that those provisions provide an avenue for defence to request a direction, tailored to address the risk that a jury may fail to appreciate the limitations of hearsay evidence.
Conclusion
In my view, there is no real danger of unfair prejudice to the accused arising from the evidence of Ms Green and Mr Jones. To the extent that there is any such danger, it is outweighed by the probative value of the evidence. The application to exclude the evidence is refused.
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