Director of Public Prosecutions v Zheng (Ruling No 1)
[2024] VSC 70
•27 February 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0179
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HANLING ZHENG |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 August 2023 |
DATE OF RULINGS: | 28, 31 August 2023 |
DATE OF REASONS: | 27 February 2024 |
CASE MAY BE CITED AS: | DPP v Zheng (Ruling No 1) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 70 |
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CRIMINAL LAW – Attempted murder and other charges – Pre-trial rulings – Question whether Crown should be permitted to lead evidence of two witnesses via audio-visual link (‘AVL’) – Question whether circumstances of earlier assault upon partner should be admissible in trial of accused for later assault upon primary victim – Question of admissibility of untaped statement made to police informant in police vehicle prior to formal questioning – AVL link permitted – Evidence of events surrounding initial assault admissible on other charges – Conversation in police vehicle admissible – Evidence Act 2008 ss 55, 90 and 137; Evidence (Miscellaneous Provisions) Act 1958 s42E; Crimes Act 1958 s 464H.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Dr Nanette Rogers SC with Joanne Poole | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Brett Stevens | Acrolex Pty Ltd |
HIS HONOUR:
Introduction
The accused is to stand trial on 3 April 2024 on charges of assault, attempted murder, intentionally causing serious injury (‘ICSI’) and recklessly causing serious injury (‘RCSI’). The trial was initially listed to commence on 30 August 2023. On 28 August 2023, I heard pre-trial submissions in relation to three matters.
The charge of assault (charge 1) concerns an alleged attack by the accused upon his wife Chang Lu (‘Lu’). The charge of attempted murder (charge 2) concerns an alleged attack by the accused upon a friend of his wife’s, Runyang (Jackie) Li, (‘Li’), who attended at the residence shared by Lu and the accused, in response to the accused’s attack upon Lu. The final two charges (intentionally causing serious injury and recklessly causing serious injury) are laid in the alternative to the charge of attempted murder. At the outset of the pre-trial submissions on 28 August 2023, it was indicated to me by Mr Stevens, for the accused, that the accused would plead guilty to the charge of assault. It was indicated that this plea of guilty would not be entered in front of the jury.
The three matters which arose for consideration by me on 28 August 2023 were as follows:
i.Whether the Crown should be permitted to lead the evidence of two important prosecution witnesses via audio-visual link (‘AVL’) from a remote location;
ii.The admissibility of the circumstances of the assault by the accused upon his wife in the trial of the accused on the other three charges;
iii.The admissibility of the conversation between the informant and the accused in a police car while the accused was being transported from the hospital to the police station for interview and processing.
In respect of the first of these, having heard the submissions of counsel, and evidence led relevant to the matter, I ruled in favour of the evidence being permitted to be led via AVL. In respect of the second, I ruled that the evidence of the circumstances of the assault upon the wife of the accused would be admissible against the accused in the trial of the other charges. I indicated I would publish my reasons for these two rulings at a later time.
In respect of the final matter, having heard the evidence and submissions, I indicated I would provide my ruling and reasons at a later time. I then ruled on the matter on 31 August 2023 and provided reasons on that occasion.
What follows are my reasons in respect of all three matters.
Facts[1]
[1]The trial of the accused which commenced on 31 August 2023 came to an end on 20 September 2023 when the jury was discharged without verdict part-way through their deliberations. The summary of facts in this ruling does not take into account the evidence as it was given during the first trial. It is based on my understanding of the evidence at the time of the pre-trial rulings.
Lu and the accused lived at an apartment in Nestor Grove, Blackburn North (‘the residence’). They were unhappily married and slept in separate bedrooms. On the night of 22 October 2020, a number of people arrived at the home of the accused and Lu for a gathering. A significant amount of alcohol was consumed by those present, and the gathering continued into the early hours of 23 October 2020. The accused had a substantial amount to drink, and was observed to be intoxicated. At some point during the proceedings, the accused had an argument with Lu. He told her he did not love her and that he wanted a divorce. He allegedly threw some of her possessions including her wedding ring out of the window of the premises. Two friends of the couple, who were present at the time, intervened in the argument. While Lu was on the couch in the living room, it is alleged that the accused assaulted her by pulling her hair and placing his hands around her throat. It is also alleged that he went to the kitchen, returning with a knife which he held in a position close to Lu. She did not see the knife, but others did and they told the accused to put it down. The knife was returned to the kitchen and the accused went upstairs to bed.
Someone present at the residence telephoned Li, a friend of Lu, asking him to come over and help out in the situation. Li attended at the residence about half an hour later. He went upstairs and then returned downstairs with the accused. Some evidence would suggest he forcibly brought the accused downstairs.
An argument ensued between Li and the accused, the argument then becoming a physical fight, during the course of which Li struck the accused to the head with a beer bottle in self-defence.
Li then went to leave the residence before being asked to come back by the accused. Allegedly the accused then went and armed himself with the knife which had been placed back in the kitchen, before running towards Li with the knife and attacking or seeking to attack him with it. Li ran out the front door and was pursued by the accused. He was allegedly stabbed a number of times by the accused with the knife as Li tried to get away from him. He was stabbed to the back, chest and neck and ended up injured on the ground. Two of Lu’s friends attempted to disarm the accused and stop the attack. Eventually, the accused returned inside the house, with the knife still in his possession. It seems the accused made some attempts to clean the knife.
Later in the morning of 23 October 2020, at about 4.57am, the accused made a call to 000 requesting police attendance. He claimed he had injuries to his head and his hand as a result of being cut with a knife by a person who had broken into his home while he was asleep in bed. He said he thought his wife had also been injured. He said he was afraid to go outside because of his injuries. He described his attacker as being ‘a little bit fat and with a hat’. He said he did not know the person and had been acting in self-defence. He claimed to have disarmed his attacker.
The admissibility of the 000 call is not in issue.
Police and ambulance officers attended the scene. Li was taken by ambulance to Royal Melbourne Hospital in a seriously injured state. The accused was arrested by police. He was taken by ambulance to Box Hill Hospital. On the way to the hospital, the accused made statements to the ambulance officer Anthony Black about what had taken place. The conversation was recorded by First Constable Bradley Ortland (‘Ortland’) on his body worn camera. The accused told Black that he had been sleeping in bed when an unknown man with a hat ‘caught’ him from his bed and struck him to the head several times with a beer bottle. He said, ‘I thought I can use my self-defence’. The accused claimed he grabbed a knife and said to the person ‘[t]his is self-defence’. He said he could not remember anything after that. Later, the man was kicking and hitting him. He then recalled putting up his hand, and his wife standing between himself and the supposedly unknown man. The accused said that the man was angry and said to him that he would kill him.
The admissibility of the things said by the accused in the ambulance is not challenged. The prosecution, in a recently filed Notice of Incriminating Conduct, dated 29 August 2023, has included these statements made by the accused in the ambulance.
After being treated at Box Hill Hospital, the accused was transported to Maroondah Hospital where he underwent surgery to repair tendon damage to the middle finger of his left hand. While in hospital, the accused was spoken to on two separate occasions by two members of Victoria Police, Ortland and Acting Sergeant Dinah Tremain, who cautioned him that he did not have to say or do anything, and that anything he said would be used in evidence. The accused’s other rights in the situation were also explained to him. The caution by Ortland occurred at Box Hill Hospital. The caution provided by Acting Sergeant Tremain occurred after the accused had undergone surgery at Maroondah Hospital.
After 5.00pm on 24 October 2020, the informant, Detective Senior Constable Melissa Leeds (‘Leeds’), introduced herself to the accused at Maroondah Hospital. She took the accused to a police car and drove him to the office of the Box Hill Crime Investigation Unit. On the way, she cautioned the accused again and explained his rights to him.
Whether video-link evidence should be permitted to be led
The prosecution made an application under s 42E(1) of the Evidence (Miscellaneous Provisions) Act1958 (the ‘EMPA’) that an order be made permitting two witnesses, Li and Haoming (Lincoln) Duan (‘Duan’), to give their evidence via AVL. Both gave their evidence in that fashion during the hearings under s 198B of the Criminal Procedure Act 2009 (‘CPA’). I note that that course was initially contested, but objection was withdrawn by the defence on the understanding that the use of the alternative procedure would be a live issue in the trial.
The reason advanced by the prosecution for the application was that each of the witnesses had separately told the prosecution solicitor that they believed their ability to give evidence at the trial would be materially affected by their fear of being in the same room as the accused. Each expressed a strong desire to give evidence via AVL.
The affidavit of Rachel Fitzpatrick, affirmed 22 August 2023, was relied upon in support of the application. Ms Fitzpatrick, a senior Office of Public Prosecutions (‘OPP’) solicitor, with a wealth of experience dealing with witnesses in the preparation of trials, indicated that she met the two witnesses when they attended in Melbourne on 7 August 2023 in preparation for giving evidence in the s 198B hearings. Ms Fitzpatrick and another OPP solicitor, along with Ms Poole, junior prosecutor for the Crown, spoke with the witnesses about the s 198B procedure with the assistance of a Mandarin interpreter. Ms Fitzpatrick then spoke with each witness separately.
Li told Ms Fitzpatrick that he wanted to give evidence from a separate room, being fearful of being in the court room with the accused. He expressed concern about the impact it would have on his mental state and his ability to be able to concentrate on his evidence if he was in the same room as the accused. Ms Fitzpatrick observed the demeanour and facial expressions of Li as he explained his feelings, and considered them to be indicative of an increased stress level in Li.
What Li told Ms Fitzpatrick, as well as her observations of him, caused her to form the belief that the anxiety he was manifesting exceeded that which would commonly be expected of civilian witnesses in the lead-up to giving evidence in court. She was concerned that this level of anxiety would materially affect Li’s ability to give evidence fully and freely. She considered that this problem would be significantly diminished, if not eliminated, if Li were permitted to give evidence via AVL.
Ms Fitzpatrick observed that this was not a new issue, so far as Li was concerned. He had previously informed Ms Fitzpatrick of his concern about giving evidence in the same room as the accused. He had informed her that his mental health was ‘not stable’, and that he was regularly seeing a psychologist in the aftermath of the attack upon him.
Ms Fitzpatrick also conferred with Duan, who expressed similar concerns to those expressed by Li. His statements and demeanour led Ms Fitzpatrick to reach the same conclusion in respect of him as she had reached in Li’s case.
Relevant legislation
Section 42E of the Evidence (Miscellaneous Provisions) Act 1958 provides:
(1)Subject to section 42F and to any rules of court, a court may, on its own initiative or on the application of a party to the legal proceeding, direct that a person may appear before, or give evidence or make a submission to, the court by audio visual link or audio link from any place within or outside Victoria, or outside Australia, that is outside the courtroom or other place where the court is sitting.
(2)A court must not make a direction under subsection (1) unless it is satisfied that the technical requirements specified in section 42G are met, or can reasonably be met, in the case of the particular link.
(3)The court may, at any time in the course of a proceeding, vary or revoke a direction under subsection (1) either on its own initiative or on the application of a party to the proceeding.
(4)Without limiting subsection (3), circumstances in which a court may vary or revoke a direction under subsection (1) include the failure of the link to which the direction relates.
(5)Each party to a proceeding may address the court in respect of the making, variation or revocation of a direction under subsection (1).
(6)The exercise of the power conferred on a court to make a direction referred to in subsection (1) is subject to any practice directions.
Prosecution submissions
The prosecution, in its written outline of submissions and in the oral submissions of Ms Poole, emphasised the importance of the evidence of the two witnesses. The prosecution relied on the principles set out by Kaye J (as he then was) in R v Cox & Ors (Ruling No 6),[2] as those which apply.
[2][2005] VSC 364 (‘Cox’).
It was submitted that it is in the interests of justice for witnesses in criminal trials to give their evidence freely and fully. Both witnesses had told prosecutors that they believed they would have difficulty concentrating while giving their evidence if in the same room as the accused. The prosecution acknowledged that many applications for evidence to be given by AVL are founded on concerns for the safety of witnesses. In other cases such as DPP v Finn (Ruling No 1),[3] an application is based on the subjective fear of a witness. In Finn, the witness feared reprisal if she gave evidence. That fear, however, was found to be objectively not diminished by her giving evidence from a remote location, and the application for AVL was refused.[4]
[3][2008] VSC 303 (‘Finn’).
[4]Ibid [18].
The present case is distinguishable from Finn, it was submitted, because the fear held by the two witnesses would be diminished if they were permitted to give evidence by AVL.
It was submitted that whilst the right of an accused person to confront witnesses in person is important, it is not an absolute right, and should not be given undue weight. The accused’s right to confront witnesses in person must be balanced against the public interest factors in a fair trial that enable key witnesses to give their evidence effectively.
If AVL was permitted for the witnesses, the accused would still be able to cross-examine them, and the relevant direction of law could be given to the jury so that no adverse inference would be drawn against the accused. No prejudice would be suffered by the accused, it was submitted, and further, if any prejudice were suffered, it would be outweighed by the interests of justice in facilitating key witnesses being able to give their evidence unhindered by unnecessary distress and trauma.
Defence submissions
Mr Stevens for the accused, relying on his written outline and oral submissions, accepted that the prosecution had correctly stated the principles as distilled in Finn. The right to confront an accuser in person, while not absolute, is a fundamental right in our criminal justice system, he submitted. Safeguards can be put in place to ensure the safety of witnesses, and any misconduct by the accused designed to influence or intimidate the witnesses can be properly dealt with.
Mr Stevens submitted that the key question is whether the witnesses’ fear will materially interfere with their ability to give evidence if they are required to do so from the witness box. He relied on a passage in the ruling of Harper J in Finn in which he stated:
I could not accede to the present application unless I was satisfied, certainly on the balance of probabilities, that by her actual presence in the courtroom, the witness would be physically and mentally unable to give evidence in this trial.[5]
[5]Finn (n 3) [17].
He described the opinions expressed by Ms Fitzpatrick in her affidavit as both speculative and insufficient to satisfy the Court that the witnesses would be physically and mentally unable to give evidence in the trial. Furthermore, there is an absence of medical or psychological evidence to support a finding that either witness suffers from any condition that would make giving evidence in Court more difficult than normal.
The witnesses in question are critical witnesses in a prosecution for serious charges. The best opportunity for the jury to assess their credibility would be for them to be physically present in Court.
When asked if he could point to any way in which the defence would be impaired in its ability to test the witnesses in cross-examination by virtue of their evidence being given by AVL, Mr Stevens did not specify any respect in which he would be hamstrung, but returned to the principles in Cox, emphasising the proposition that the ability to confront an accused in person has been considered to be a fundamental right.[6]
[6]See Cox (n 2).
Mr Stevens submitted that the prosecution had failed to satisfy the Court that it would be in the interests of justice for either witness to give evidence by AVL.
Analysis
Insofar as the status of the material in support of the application was concerned, as I mentioned earlier, Ms Fitzpatrick is a very experienced solicitor in criminal cases, having been with the OPP for in excess of 22 years. In that capacity, as her affidavit attested, she has had a great deal of experience in dealing with witnesses at all stages of their journey through the criminal trial process, including the preparatory stages. She is well acquainted with the way in which witnesses may behave, what to expect of them, and what is normal. I saw no reason not to accept what she said about her perception of the two witnesses in question, and the concerns engendered in her by their statements and conduct. This was not a matter of any abnormal mental condition being relied upon in respect of any witness, which may require evidence from a medical or psychological expert. This was an experienced lawyer attesting to what she saw, heard, and believed.
I was content to accept, for the purposes of my consideration of this matter, that the principles distilled by Kaye J in Cox were applicable, as both sides submitted. Having said that, it seems pertinent to note that much water has passed under the bridge in the 18 years between the time of his Honour’s ruling and the hearing of this matter, and the landscape has substantially changed. In the intervening years, it has become quite commonplace for important witnesses to be permitted to give evidence by AVL, often in the face of opposition. This has been particularly common in the case of trials for very serious organised and other crimes, where often, but not always, the justification for an application for AVL has been safety concerns for witnesses. In many such cases, the evidence of the witness in question has been critical to the prosecution case, and the ability to be able to properly test the credit of the witness has been critical for the defence.
The experience of the Court has been, I believe, that the defence have not been disadvantaged or hindered in their ability to test important prosecution witnesses, whose credit has been subject to strong and justifiable attack, by the inability to confront them in person in court. Many such cross-examinations have been conducted very effectively notwithstanding the use of AVL. Accused persons have been found guilty, or not guilty, in accordance with the overall quality of the prosecution evidence, and not according to the mode by which evidence has been given.
And throughout the years since Kaye J’s decision in Cox, I am unaware of any ground of appeal having been successfully argued which has asserted that the trial of a convicted accused miscarried because the accused was denied the opportunity to confront his accuser in person.
In addition, I note that in a number of areas of the criminal trial process, including in the case of complainants in cases of alleged sexual offending, giving evidence by AVL has become, by statutory change, the invariable practice. The legislature has considered that appropriate, and so it has been. Again, there is nothing at all to suggest that the statutorily based practice of complainants in sex cases giving evidence in that fashion has in any way harmed the prospects of accused persons.
Turning to the statement of principle made by Harper J in Finn at paragraph [17], with all due respect to his Honour, I think it would be overstating the position to say that a judge could not make an order permitting an AVL unless satisfied that the witness would be ‘physically and mentally unable to give evidence’ in the absence of such an order. In my view, if I was satisfied that either of the witnesses would be materially impaired in their ability to give evidence in the trial because of the fear and tension engendered by being in the same room as the accused, and that such concerns may be allayed by the making of an AVL order, then that would justify a conclusion that it would be in the interests of justice to make the order.
Conclusion
That is the position I reached in this case. I was satisfied that the ability of each witness to give his evidence in the trial would be materially impaired or hindered by the requirement to be in the court with the accused, due to the nature of the alleged offending of the accused and the high level of stress of the witnesses. On the other hand, I could see no reason to think that counsel for the accused would be hindered in his ability to test and challenge the witnesses. I reached the conclusion that it would be in the interests of justice for each witness to be able to give evidence via AVL. I made orders accordingly under s 42E of the EMPA.
The admissibility of the circumstances surrounding charge 1 in the trial of charges 2-4
By way of further background to my consideration of this issue, the anticipated defence of the accused at the time of the pre-trial hearing was self-defence, or in the alternative, lack of the state of mind necessary for any of the other offences. Part-way through his submissions, Mr Stevens indicated that it would not be in dispute at the trial that the accused was the person who obtained the knife from the kitchen prior to the attack upon Li.
Relevant legislation
Section 55(1) of the Evidence Act 2008 (‘the Act’) provides:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally effect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Section 137 of the Act provides:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
Having determined that impugned evidence is relevant, I am required to turn my mind to s 137 of the Act. That provision would require me, as a matter of law, to refuse to admit the evidence if its probative value was outweighed by the danger of unfair prejudice. The onus or burden under the section is on the accused.
As the ALRC explained prior to s 137 coming into effect, ‘prejudice’, as the term had been used in the common law:
does not mean simply damage to the accused’s case. It means damage to the accused’s case in some unacceptable way, by provoking some irrational, emotional response, or giving evidence more weight than it should have. It is proposed to retain this judicial discretion in its conventional form.[7]
[7]Australian Law Reform Commission, Evidence (Interim Report No 26, 1985) Vol 1, 957.
I am required to carry out the balancing exercise referred to in the provision. If the probative value of the evidence is outweighed by the danger of unfair prejudice, I am required as a matter of law to exclude the evidence. This is not the exercise of a discretion.
Defence submissions
In the written outline, it was asserted that evidence of the assault upon Lu was not relevant to a fact in issue in the trial. In the alternative, exclusion under s 137 of the Act was relied upon. As his submissions before me progressed, however, Mr Stevens conceded relevance, and fell back on s 137.
In his submissions, Mr Stevens argued that the evidence in the trial touching on the earlier assault should be limited to what Li was told about the circumstances of the earlier event in the phone call he received requesting his presence at the home of Li and Lu. He submitted that there should be no evidence at all from Lu or any of the eye witnesses about what occurred in the earlier event. What was relevant to Li’s conduct at the house was what he was told about the earlier events.
In support of that contention, Mr Stevens submitted that when the accused went up to bed following the assault upon Lu, that represented a ‘break in the chain of events’. Furthermore, the two alleged attacks were of an entirely different nature, one being upon the accused’s long-term domestic partner, and the other being upon someone who was no more than a friend of Lu, and not well known to the accused. This, submitted Mr Stevens, was another reason why the circumstances surrounding the attack upon Lu were not relevant, or at least, not particularly so, to the latter charges. These were two entirely separate and distinct incidents.
Turning to s 137, Mr Stevens submitted that there was a real danger of unfair prejudice in that the jury may reason that because the accused had seen fit to assault his wife, and to use a knife in doing so, he may be the sort of person who would carry out the assault alleged against him upon Li, also with the use of a knife. Mr Stevens called into question whether or not a jury would be able to properly apply any directions of law designed to minimise the risk of an impermissible use of the evidence. This was so because of the inherent prejudice attaching to the accused by virtue of his willingness to use a knife in his attack upon his wife, a female person smaller than himself. He submitted that the probative value of the evidence would be outweighed by the danger of unfair prejudice.
Prosecution submissions
Dr Rogers submitted that the earlier assault upon Lu was an integral part of the later events, and that without evidence being before the jury about this earlier assault, the later events would be incomprehensible to them. The circumstances surrounding the assault upon Lu were the underlying reason for the later attendance of Li, who came to the premises to have a verbal argument with the accused over the manner in which he had assaulted and behaved towards his wife, including with the use of the knife. To require the jury to decide the events of the later incident with no knowledge of the events of the earlier one would be to have them operate in a vacuum.
It was submitted by the prosecution that only about half an hour separated the assault upon Lu and the arrival of Li at the premises. The events were interlinked, so as to be effectively parts of the one transaction.
Dr Rogers submitted that the knowledge the accused had of the location of the knife in the kitchen, which was apparently removed from him after the earlier incident by one of the witnesses and returned to the kitchen, was an important part of the prosecution case.
In respect of s 137, Dr Rogers submitted that the probative value of the evidence was not outweighed by the danger of unfair prejudice.
Analysis
The evidence was clear that the only reason why Li was summoned to the house was because of the earlier attack upon Lu. He attended at the premises approximately half an hour after the earlier attack, intending to confront Li. Very shortly after his attendance, it was alleged on the prosecution case that the accused attacked Li, using the same knife he had apparently brought from the kitchen during the course of his attack upon Lu.
In my view, the very short gap between the end of the accused’s attack upon Lu and the arrival of Li, the fact that the attendance of Li at the premises only occurred in response to the earlier attack and Lu’s resulting distress, and the features in common between the two attacks, namely, that both were acts of aggression by the accused, carried out with the use of a knife, meant that the two events were much more realistically viewed as being parts of one ongoing incident rather than two entirely separate and distinct events, unconnected by any of their features.
There are at least some parallels between this case and the factual scenario in O’Leary v The King.[8] That decision arose from a murder conviction. The accused and co-workers were at a timber camp. During a session of drinking at the camp the accused had hit others over the head. The victim was found dead from head injuries the next day. Dixon J stated:
The part which the prisoner took in the drunken orgy which, as the facts suggest, culminated in the fatal attack upon the deceased man would appear to me to be relevant to the question whether the prisoner was the assailant and, if so, whether he was at the time capable of forming, and did form, the intention which would make his crime murder.
The evidence disclosed that, under the influence of the beer and wine he had drunk and continued to drink, he engaged in repeated acts of violence which might be regarded as amounting to a connected course of conduct. Without evidence of what, during that time, was done by those men who took any significant part in the matter and especially evidence of the behaviour of the prisoner, the transaction of which the alleged murder formed an integral part could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event. The prisoner’s generally violent and hostile conduct might well serve to explain his mind and attitude and, therefore, to implicate him in the resulting homicide.[9]
[8](1946) 73 CLR 566 (‘O’Leary’).
[9]Ibid 577.
As a matter of logic, the fact that the accused saw fit, in an angry, aggressive and drunken state, to carry out an unprovoked assault upon his wife with the use of a dangerous knife, may be sensibly considered to be relevant to what may have been the nature of his conduct, no more than half an hour later, at the same location, in front of the same witnesses, when he again allegedly behaved in a similar way, carrying out an unprovoked attack upon Li with the use of the same knife. In my view, a jury might gain some assistance from the earlier event in properly understanding and evaluating the later event, without in any way engaging in prohibited reasoning.
In my view, the prosecution submission that to require a jury to decide the facts of the serious assault alleged against Li in ignorance of the circumstances of the earlier assault upon Lu would be to have them decide the case in a meaningless and unrealistic vacuum, was correct. The earlier event was integral to the attendance of Li in the first place, and a critical part of the overall events, including by throwing light on the demeanour, feelings and behaviour of the accused on the morning in question. In my view, the circumstances of the attack upon Lu were relevant to the later attack, to which charges 2-4 relate. In the end, as I have already said, Mr Stevens did not challenge the evidence on the basis of relevance.
As for a consideration of s 137 of the Act, Mr Stevens pointed to the risk of the jury reasoning impermissibly that because the accused had attacked his partner in such a fashion, including with the use of the knife, he may be all-the-more likely to have attacked Li in similar fashion with the same knife. He submitted that the distasteful nature of the first alleged attack would dictate that the risk of misuse of the evidence may not be amenable to effective judicial directions.
I did not agree with that submission. In my view, it would be possible to tailor a direction to ensure that a jury would not engage in the type of prohibited reasoning spoken of by Mr Stevens. It would be a simple enough proposition for a jury to understand and accept that the circumstances of the first incident would be able to be used by them only in determining whether or not the attack upon Li occurred as alleged by the prosecution, whether it was established that the accused had no lawful excuse for his actions, and whether he had the state of mind alleged by the prosecution, namely, as centrally alleged, an intention to kill. They would be clearly told not to use the evidence in support of any impermissible mode of reasoning. In my view, there would be no reason why a jury would not be willing and able to abide by such a direction.
I considered that the probative value of the evidence was significant, and not outweighed by the danger of unfair prejudice.
Conclusion
I ruled that the evidence relevant to the first charge on the indictment was admissible in respect of the other three charges.
The admissibility of the statements of the accused in the police car
In her sworn evidence before me, the informant, Leeds, gave evidence explaining the events surrounding and leading up to the statements she said were made by the accused in the police car. The evidence indicated that on two separate occasions, one of them after the surgery he had undergone, the accused was cautioned by other police members that he did not have to say or do anything, but that anything he did say could be used in evidence. The body-worn camera footage of one of those members was tendered through the informant. It revealed that the accused claimed to understand his rights as they were explained to him.
In the car during the journey to the police station, Leeds again cautioned the accused and explained his rights to him. She did not ask him any questions about the alleged offending, but stated that he asked her, ‘Why am I under arrest when I am the victim’. She believed that, consistent with her practice of asking persons in custody whether they have any questions relating to the procedure, she may have asked the accused such a question, prompting his question to her. She went on to say that immediately following his claim of having been the victim, the accused said words to the effect that a man had broken into his house with a knife and that he had called the police. He asked whether his wife was okay as she may have gotten in between them.
On their arrival at the Box Hill Police Station, and being concerned that the accused had recently undergone surgery and possibly being affected by pain medication, the informant arranged for the accused to be assessed in a telephone consultation by a forensic medical officer, Dr Adam Wilson. Following the assessment, Dr Wilson determined the accused to be fit to be interviewed. I make the observation that Dr Wilson spoke to the accused without the assistance of an interpreter, and did not indicate any difficulty in communication.
Notwithstanding the informant’s view that the accused’s English was quite good, at his request, a Mandarin interpreter was obtained and was present throughout the recorded interview conducted by the police. During the interview, the accused answered ‘no comment’ to questions put to him, including a question during which the informant referenced the earlier conversation in the car and asked the accused whether he wished to make a statement in relation to that. The accused declined.
Mr Stevens sought the exclusion of the statements made by the accused in the car, with the exception of the question the accused asked, ‘Why am I under arrest when I am the victim?’ No objection was raised to the leading of this evidence.
The applicable legislation
Section 464H(1) and (2) of the Crimes Act 1958 provide:
464H Recording of confessions and admissions
(1)Subject to subsection (2), evidence of a confession or admission made to an investigating official by a person who—
(a) was suspected; or
(b) ought reasonably to have been suspected—
of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless—
(c)if the confession or admission was made before the commencement of questioning, the confession or admission was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person and the confirmation was recorded by audio recording or audiovisual recording; or
(d)if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording; or
(e)if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was recorded by audio recording or audiovisual recording; or
(f)if the confession or admission was made during questioning in accordance with an order made under section 464B(5), the questioning and anything said by the person was recorded by audiovisual recording—and, if either an audio recording or an audiovisual recording was made, that recording or, if both an audio recording and an audiovisual recording were made, the audiovisual recording is available to be tendered in evidence.
(2)A court may admit evidence of a confession or admission otherwise inadmissible by reason of subsection (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances—
(a) are exceptional; and
(b) justify the reception of the evidence.
Section 90 of the Evidence Act 2008 provides:
90 Discretion to exclude admissions
In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if—
(a) the evidence is adduced by the prosecution; and
(b)having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
Defence submissions
Mr Stevens submitted that s 464H(1) of the Crimes Act 1958 applied to the statements made by the accused in the car, which were relied upon by the prosecution as lies amounting to incriminating conduct. He submitted that the prosecution was unable to establish that the circumstances are exceptional and would justify the reception of the evidence. [10] He further submitted that even if the Court was satisfied as to the existence of exceptional circumstances, and that the reception of the evidence would otherwise be justified, that the evidence should be excluded pursuant to s 90 of the Evidence Act 2008.
[10]As required by s 464H(2).
In resisting the prosecution contention of exceptional circumstances, and in support of the exclusion of the evidence in any event under s 90, Mr Stevens pointed to a number of surrounding circumstances at the time of the statements made by the accused in the police vehicle. He noted the language difficulties of the accused which led to the need to use a Mandarin interpreter during the later interview, the fact that the cautions received by the accused were not with the benefit of the assistance of an interpreter, the fact that he had recently left hospital where he had undergone surgery, the fact that he had not been given the opportunity to speak with a lawyer before the conversation, the lack of specificity about the words used and the resultant potential for misunderstanding of what he meant, and the fact that the conversation was not put to the accused during the interview. Mr Stevens acknowledged that there was no reason to doubt the voluntariness of the statements, but submitted that, as indicated by Justice Bell in DPP v Tran,[11] this would not be determinative. On the question of the apparent likely truthfulness of the evidence of the informant as to the statements made by the accused, Mr Stevens conceded that this could go into the mix of matters for consideration, but pointed out that whilst the statements indicated a similar account to that given to the 000 operator, there were some notable differences. In any event, the statements in the police vehicle went no further than the statements in the emergency call, and would not take the prosecution case much further if admitted. Mr Stevens submitted that it would be setting the bar of exceptional circumstances very low to decide that the circumstances in this case would suffice for that label to be attached to them.
[11][2019] VSC 823 (‘Tran’).
Subsequently, when it came to light that the prosecution intended to lead evidence of statements made by the accused to the ambulance officer Mr Black, as summarised in paragraph [13], above, Mr Stevens indicated that he did not object to the admission of this evidence. So far as its relevance to the question to be determined by the Court was concerned, he submitted that whilst I would be entitled to have regard to this evidence in determining the question, it was ‘of low relevance’.
Prosecution submissions
Dr Rogers, who appeared with Ms Poole for the prosecution, noted the several occasions on which the accused was cautioned before making the statements in question. It could be concluded that his English was reasonably good, she submitted, and although no Mandarin interpreter was present for the cautions, the Court could be satisfied that he was well aware that he had the right to remain silent if he wished to do so, and that if he did choose to speak, then the evidence could be used against him. The statements made by the accused in the police car were not preceded by any questioning of the accused about the events in question. It should be concluded that the accused spoke because he had a desire to again assert his defence of self-defence to the police, a defence which he had commenced to advance in the 000 call in the immediate aftermath of his actions, and which he expanded upon in his conversation with the ambulance officer, Mr Black. When he accompanied the informant in the police vehicle, the accused was in a situation of understanding that he was in police custody and that his conduct was in question. Hence his desire to advance a defence which might be open to him. As for the fact that the informant had no recording device operating in the car, she did not have access to any police device to be used for that purpose, nor any reason to suppose that a recording device would be necessary. The informant had no intention of questioning the accused, and no reason to believe that the accused would advance any matter of importance in the vehicle. She was doing no more than transporting him to a place where he was to be interviewed, and at most, ensuring he knew what was taking place and had no questions. In the interview that followed, she did broach the subject of the statements made by the accused in the car. Fairly, she gave the accused the opportunity to expand on these if he so wished, but with the approach the accused had taken from the start of the interview of making no comment, she had the expectation that he would not comment, were she to have specifically detailed the conversation to him. No deliberate or reckless statement by the informant led to the accused making the relevant statements. Similarly, no deliberate or reckless omission led to the statements not being recorded at the time, or later confirmed on tape. No pressure of any sort had been brought to bear on the accused.
In response to the query as to what would be added to the picture of what the accused had said in the 000 call by the introduction of the statements made in the police vehicle, Dr Rogers pointed out that the statements made by the accused in the 000 call were somewhat disjointed, and potentially affected by the heightened emotional state of the accused, and, as indicated by the result of the analysis of a blood sample taken from him at the hospital at 6.26am on 23 October 2020,[12] his level of intoxication. More detail was provided in the statements in the police vehicle. These constituted a repetition by the accused of the self-defence claim he had made 36 hours earlier, but this time, with the benefit of the passage of time and the administration of the police caution on a number of occasions.
[12]The sample was analysed by gas chromatography on 27 November 2020 and found to contain not less than 0.156 grams of alcohol per 100 millilitres of blood (0.156 per centum).
The things said by the accused could be contrasted with the sorts of things that might be blurted out by people under police arrest, especially if prompted by the type of question asked by the police member in the case of Tran.[13] Rather, this should be viewed as material that the accused volunteered, in a considered way, as a result of a desire to advance and double-down on the defence of self-defence. He wanted it on the record that self-defence was the path down which he was going to proceed. He sought to further his interests by making the statements.
[13]Tran (n 11).
Dr Rogers submitted that the likely correctness and truthfulness of the informant’s evidence about what the accused said was a relevant factor for consideration.
In respect of s 90 of the Evidence Act, if a consideration of this provision arose, Dr Rogers submitted it would be incumbent on the accused to demonstrate that having regard to the circumstances in which the statements were made, it would be unfair to the accused to admit them. In resisting the discretionary exclusion by the Court of the evidence in contention, Dr Rogers relied on the matters mentioned above. She noted, amongst other things, that no objection was made to the admission of the claim by the accused to the informant that he was the victim, which did not sit comfortably with the exclusion of the other things said by the accused in the same conversation. Dr Rogers submitted that no unfairness to the accused had been demonstrated before me. There would be nothing unfairly prejudicial about the evidence being permitted to be led.
Analysis
At the outset, I make the observation that the statements of the accused which were in contention, if admitted, would be sought to be relied upon as lies by the accused going to his credit, and if permitted by the Court, as items of incriminating conduct. There was no question that the statements would meet the wide description of admissions which the cases have indicated should be adopted.
The general rule against the admission of unrecorded confessions and admissions contained in s 464H of the Crimes Act was described by Bell J in Tran as being ‘central to the scheme laid down in ss 464-464H of the Act applying to the custody of alleged offenders and the investigation of crime.’[14]
[14]Tran (n 11) [4].
In R v Efandis (Ruling No 2),[15] Kaye J[16] pointed to the underlying purpose of the regime constituted by s 464H being:
to protect persons, suspected of offences and who are later charged, by ensuring that admissions alleged against them are genuine and voluntary and have not been unfairly obtained.[17]
[15][2008] VSC 274 (‘Efandis’).
[16]As he then was.
[17]Efandis (n 15) [37].
Bell J in Tran emphasised the importance of the general exclusionary rule as follows:
That rule, and the other elements of the scheme enacted by ss 464–464H, was introduced because disputes over the admissibility of unrecorded confessional evidence were damaging public confidence in the system of justice and intolerably increasing the cost and length of criminal trials.[18] ‘Verballing’ (where police officers would falsely claim that a suspect had voluntarily confessed to a crime or made inculpatory admissions) was a ‘scourge’,[19] so much so that it was decided in 1991 by the High Court in McKinney v The Queen that it would be dangerous for a jury to rely upon evidence of an accused’s confessions or admissions without corroboration by contemporaneous audio or audio-visual recording.[20] Legislation was introduced in each jurisdiction requiring such recording. By 2004 it was possible for Gleeson CJ, Hayne and Heydon JJ to say in Kelly v The Queen: ‘Few now doubt the advantages of the widespread police practice of video-recording confessions, and few now criticise the various types of legislation which underpin that practice’.[21]
[18]See generally Kelly v The Queen (2004) 218 CLR 216, 225–323 [22]–[40] (Gleeson CJ, Hayne and Heydon JJ), 250–1 [96] (McHugh J (‘Kelly’).
[19]Jeremy Gans, Andrew Palmer and Andrew Roberts, Uniform Evidence (Oxford University Press, 3rd ed, 2019) 241 [8.3.3].
[20](1991) 171 CLR 468, 476 (Mason CJ, Deane, Gaudron and McHugh JJ).
[21]Tran (n 11) [37].
The case with which Bell J was concerned was one in which the police were investigating the death of an elderly woman who had been bashed in a suburban street. At about the time of the attack, the accused was seen in the vicinity wearing distinctly coloured clothing. In the trial of the accused for murder, the main issues were identity and intention. The accused denied she was the attacker. At issue was evidence of something said by the accused to police when they attended her premises the day after the attack. After being arrested and cautioned, the police asked her questions which she voluntarily answered. The conversation was recorded in police notes but not recorded by audio or audio-visual means. According to police, when first asked whether she knew why she was being arrested, the accused answered that it was for ‘bashing the old lady’. When later formally interviewed, the accused did not confirm the answer. Indeed, she denied it.
Bell J, in refusing to admit the evidence, stated that the fact the statement was made voluntarily was a relevant but not a dispositive consideration. Whilst he made no finding of impropriety by the police, Bell J considered the question which elicited the damaging response to be ‘dangerously open-ended and not expressly directed to the welfare of the accused’.[22] He stated that whatever the purpose of the questioning, ‘[s]uch questioning generates disputes of the very kind that the custody and investigation provisions were designed to avoid’.[23]
[22]Ibid [35].
[23]Ibid [36].
Bell J said of the manner in which the accused had been questioned:
These circumstances give rise to judicial concern even if the purpose of the police was not deliberately to induce the accused into making an admission or confession when in a position of vulnerability. That is because, as I have already stated, the purpose of the custody and investigation provisions is to avoid disputes about possible fabrication of confessions or admissions but also misunderstanding, mis-recollection, coercion, or oppression in a broad sense.[24]
[24]Tran (n 11) [37].
To my mind, the type of situation contemplated by Tran could be readily distinguished from the circumstances of this case. In Tran, whilst engaging in a deliberate process of questioning a suspect who had been arrested and cautioned, but which process was not tape-recorded as the law required, the police asked what Bell J described as a ‘dangerously open-ended question’ which elicited a damaging response, the making of which was in dispute at the trial.
The current circumstances were very different. Leeds had no intention of questioning the accused as she transported him to the police station for interview, and no reason to believe he would volunteer any statement of relevance, in circumstances where she knew he had been repeatedly cautioned, including by her, and was aware that he would have the opportunity to consult with a lawyer before interview. She had no reason to believe it would be necessary for there to be a recording device operating in the vehicle, and no ready access to such a device. That is not to say that it may not be desirable for members of the police force in such a situation to be in a position to tape proceedings, to be sure that anything said of note is recorded, but I was satisfied that this thought did not enter the informant’s mind.
I was satisfied that the informant did not engage in any conduct which was inappropriate or prone to risk, as is the case when a member of the police force, in the company of a suspect and in the knowledge that proceedings are not being recorded, engages the person in conversation about the alleged events. All Leeds did, at most, was ask an innocent question directed at the wellbeing of the accused.
Preceding the words in contention uttered by the accused in the police car, he made the claim impliedly made by him from the time of the 000 call, and expanded upon in the conversation in the ambulance, that he was a victim rather than an offender. He then launched into the claim which he had earlier made in the 000 call that someone had broken into his house with a knife.
In my view, the earlier claims made by the accused in the 000 call and in the ambulance lent great support to the proposition that the evidence of Leeds correctly recorded statements actually made by the accused in the police car. Furthermore, she was not challenged in her account, and no evidence was led from the accused calling into question her evidence. I was satisfied as to the truthfulness and accuracy of the evidence of the informant about what was said by the accused in the car.
As to the submission by Mr Stevens that there would be room for uncertainty about what was said or meant by the accused, particularly in circumstances where the witness did not purport to remember the precise words of the accused, Leeds was clear in her evidence that she wrote her notes of the conversation upon her return to the police station and that what she included in her notes and statement set out the effect or import of what the accused had said to her.
I was satisfied that when the accused spoke in the police vehicle, he did so in the clear knowledge that he was not required to say anything. He spoke because he wanted to continue to portray himself as a victim, rather than an aggressor. His statements in the car were a continuation and natural progression of the account he had decided he wanted to put forward. This was him volunteering an account which he saw to be in his best interests.
There was no question that the accused’s statements were entirely voluntary, and in no way induced or encouraged by the informant. Furthermore, I did not believe that there was the potential for misunderstanding of the accused’s words as was asserted by Mr Stevens. It was very clear what the accused was saying. He was the victim. A man had broken into his house with a knife. This is precisely what he had said to the 000 operator. Here he was saying it, some 36 hours later, with the benefit of the passage of that time and the repeated administration of a police caution to him. He knew he did not have to speak, but he wanted to, because he believed it to be in his best interests.
In my view, the circumstances surrounding the making of the statements in question were very different from those apparent in Tran, and many of the other cases in which judges of this Court have declined to permit the leading of unrecorded, unconfirmed admissions. The circumstances to my mind were exceptional, and would justify the reception of the evidence.
As for a consideration of s 90 of the Evidence Act, I was not satisfied, having regard to the circumstances in which the admissions were made by the accused, that it would be unfair to him for the evidence to be used.
Conclusion
For the above reasons, I indicated that I would permit the Crown to lead evidence of the statements made by the accused to Detective Senior Constable Leeds in the police vehicle.
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