Director of Public Prosecutions v Zheng (Ruling No 2)
[2024] VSC 142
•26 March 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: | 22 March 2024 |
DATE OF RULING: | 26 March 2024 |
CASE MAY BE CITED AS: | DPP v Zheng (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 142 |
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CRIMINAL LAW – Attempted murder and other charges – Pre-trial rulings – Question whether circumstances of earlier assault upon partner (Charge 1) should be admissible in trial of accused for later assault upon primary victim (Charges 2-4) – Question of admissibility of statements made by accused to 000 operator and to police informant in police vehicle on way to police station – Question of admissibility of certain portions of evidence of eye-witnesses during the first trial about the CCTV footage that was played to them - Evidence of events surrounding initial assault admissible – 000 call and conversation in police vehicle admissible – Recorded evidence of witnesses re CCTV footage admissible, though evidence of witnesses’ descriptions of what is happening on the CCTV footage inadmissible - Evidence Act 2008 ss 55, 78 and 137; Jury Directions Act 2015 ss 12 and 23.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Dr N Rogers SC with Ms J Poole | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr M Habib with Mr H Lewis | Acrolex Pty Ltd |
HIS HONOUR:
Introduction
An indictment is before the Court charging the accused with common assault (charge 1), attempted murder (charge 2), intentionally causing serious injury (‘ICSI’) (charge 3) and recklessly causing serious injury (‘RCSI’) (charge 4). A retrial of this matter is now listed to commence on 8 April 2024.[1] A number of matters have arisen for ruling before the commencement of the trial.
[1]The first trial of the accused commenced on 31 August 2023 and came to an end on 20 September 2023 when the jury was discharged without verdict part-way through their deliberations.
The charge of assault concerns an alleged attack by the accused upon his wife Chang Lu (‘Lu’). The charge of attempted murder 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 are laid in the alternative to the charge of attempted murder.
It has been indicated to me by Mr Habib, who appears with Mr Lewis for the accused, that the accused intends to plead guilty to the charges of assault and RCSI in front of the jury in the retrial. At the first trial, the accused pleaded guilty to charge 1 only, contesting the other three charges. Mr Habib also informed me that the defence of self-defence, which was relied upon by the accused at the commencement of the first trial, but disavowed part-way through, will not be relied upon in the re-trial.
By way of further background to the current matters for consideration, in the lead-up to the first trial, I made rulings on several matters, including some of those currently under consideration.[2]
[2]DPP v Zheng (Ruling No 1) [2024] VSC 70R (‘Ruling No 1’).
Three matters were raised by the defence for consideration by me in pre-trial argument on 22 March 2024. These were whether the Crown should be permitted to lead:
a) evidence of particular acts of violence by the accused towards Lu in the trial of the accused upon the charges of attempted murder and ICSI.
b) evidence of the contents of the 000 call made by the accused, and statements made by the accused to the police informant Detective Senior Constable Leeds (‘Leeds’) in a police vehicle on 24 October 2020.
c) certain portions of the evidence given by eye-witnesses during the first trial about the closed-circuit television (‘CCTV’) footage that was played to them.
Having heard submissions from both sides during the hearing, I indicated that I would provide my rulings and reasons at a later time.
What follows are my rulings on the three matters and my reasons for those rulings.
Facts
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 residence 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. During the argument, 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 and pushing her down onto a couch. 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 at least one of the others, Haoming Duan (‘Duan’) did. Duan removed the knife from the accused and the knife was then returned to the kitchen. The accused went upstairs to his bedroom.
Duan telephoned Li, a friend of Lu, asking him to come over and help out in the situation. Duan said at the first trial that he informed Li what had happened, and specifically, that the accused had used violence against Lu and had used a knife. Li attended at the residence about half an hour later. He went upstairs where he found the accused seemingly asleep in bed. He then returned downstairs with the accused.
An argument ensued between Li and the accused, and the argument then became 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 same knife which had been placed back in the kitchen after his initial confrontation with Lu, and then ran towards Li with the knife, attacking or seeking to attack him with it. Li ran out the front door and was pursued by the accused. He was allegedly stabbed by the accused with the knife in the area just outside the front door of the premises. He proceeded to walk or run down the driveway to the street, while being pursued by the accused, and apparently, was then further stabbed by the accused while he was standing in an area near a red utility vehicle. During the attack upon him at both locations, Li was stabbed to the back, chest and neck, and ended up lying, seriously injured, on the nature strip. Eventually, the accused returned inside the house, with the knife still in his possession.
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 was not in issue in the first trial. Its exclusion is sought in the retrial.
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 and then taken by ambulance to Box Hill Hospital. After initially 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 at Box Hill and then Maroondah, the accused was spoken to on two separate occasions by members of Victoria Police, First Constable Bradley Ortland (‘Ortland’) and Acting Sergeant Dinah Tremain (‘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 by Tremain occurred after the accused had undergone surgery at Maroondah Hospital.
After 5.00pm on 24 October 2020, the informant, 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. 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 also asked whether his wife was okay, explaining that she may have gotten in between them.
The admissibility of evidence of particular acts of violence by the accused towards Lu in the trial of the accused upon the charges of attempted murder and ICSI
I note that this matter was the subject of previous ruling of me in the lead-up to the first trial.[3] The evidence was ruled to be admissible.
Defence submissions
[3]Ruling No 1 (n 2) [43]-[65].
The defence sought the exclusion from the trial on charges 2 and 3 of three aspects of the accused’s earlier assault upon Lu. These were, the accused’s use of the knife in the course of this attack, the accused’s strangulation of Lu, and the accused’s threat to kill Lu. Reliance was placed on the written outline of Mr Habib and Mr Lewis dated 18 March 2024, and the oral submissions on the matter, principally made by Mr Lewis.
Mr Lewis commenced by highlighting how things have changed since the first trial and my first ruling. The issues in dispute have become more narrow. Where once self-defence was a live issue, now, the only real question is the accused’s intent at the time that he stabbed Li.
Mr Lewis submitted that the accused’s use of the knife in the attack upon his wife is not relevant to the later attack upon Li. It could not rationally affect the assessment of the probability of the existence of a fact in issue.
Anticipating a prosecution contention that the use of the knife would go to the heightened and aggressive state of mind of the accused that night during both incidents, Mr Lewis distinguished the state of mind required for common assault compared with attempted murder or ICSI. He also noted that the accused had gone to bed and to sleep between the two incidents. He submitted that what happened before the accused went to sleep was not relevant to his state of mind after he had woken up and the second incident unfolded.
Mr Lewis also submitted that the two attacks, one on the accused’s domestic partner and the other on a person with whom he had had little contact, occurred in the context of two very different relationships. Further, he submitted that Li had not been informed about the use of the knife in the telephone call made to him before his attendance at the scene.
Mr Lewis submitted that even if I were to conclude that the evidence of the use of the knife is relevant, it should be excluded pursuant to s 137 of the Evidence Act 2008 (‘the Act’). The danger of unfair prejudice is to be found in the risk of the jury reasoning, in a tendency fashion, that the type of man who would threaten his wife with a knife may well be the type of man who would form an intent to kill somebody with the use of the same knife. That attractive line of reasoning, submitted Mr Lewis, would not be amenable to judicial direction.
In relation to the strangulation aspect of the evidence, Mr Lewis accepted that this would be relevant because it was a feature of the earlier attack of which Li was informed during the phone call. However, he submitted that the limited probative value of the evidence would be outweighed by the danger of unfair prejudice. Strangulation may be considered by the jury to be a ‘red flag for murderers’, submitted Mr Lewis.[4] There would be a risk that the jury may reason that because the accused is ‘a wife-strangling man, therefore he’s a killer’.[5]
[4]Transcript 29.
[5]Ibid.
Turning to the threat to kill, Mr Lewis submitted that, like the use of the knife, this particular aspect of the attack on Lu is not relevant. It could only be relevant for propensity reasoning, he submitted. The accused ‘had threatened to kill his wife so therefore, he had a tendency that night to have a particular state of mind, being a murderous state of mind.’[6] Mr Lewis submitted that the evidence, if relevant, should be excluded pursuant to s 137 of the Act.
[6]Ibid.
Mr Lewis acknowledged that the jury would need to be told something about the circumstances of the attack upon Lu, but stated that this could be done by agreement, and need extend no further than the jury being informed that there had been a violent altercation between the accused and Lu, and that the accused had perpetrated a serious assault.
Prosecution submissions
In response, Dr Rogers, for the prosecution, submitted that it would be extremely important for the jury to understand why Li attended the residence when he did. The evidence of Duan was that he informed Li, when he spoke to him in the phone call, that the accused had used physical violence against Lu and also used a knife. Li attended when he did because of his knowledge that a serious assault had been carried out upon Lu. The mere description of a serious assault, however, would be meaningless to the jury if they were deprived of any of the specifics. It would be difficult for the jury to understand the evidence of Li and others about what unfolded after Li’s attendance, unless some particulars were in evidence about the earlier assault.
Dr Rogers submitted that all three particulars the subject of current consideration, namely, the use of the knife, the strangulation and the threat to kill, are relevant for two purposes. First, to properly explain Li’s attendance at the residence and his observations of Lu upon his attendance. Secondly, to throw light on the mental state of the accused at the time of the assault upon Lu only about half an hour prior to the assault upon Li, which is relevant to his state of mind during the attack upon Li. Dr Rogers submitted that the nature and particulars of the assault upon Lu demonstrate the high level of the accused’s anger at that time. He had a high state of anger at the time of the earlier attack, which seemingly had not dissipated by the time of the subsequent attack.
Dr Rogers questioned the relevance of the defence contention concerning the different states of mind required for common assault on the one hand and attempted murder and ICSI on the other. The fact of the matter is that there were two assaults committed by the accused within a relatively short timeframe, she submitted.
Dr Rogers further submitted that the evidence in question is not propensity evidence, and judicial direction could ensure the evidence would not be misused by the jury.
She submitted that it was significant that the accused used the same knife to stab Li which he had brandished during the assault upon Lu. This showed the purposefulness of his conduct, in circumstances where he knew the knife to be a sharp one.
She submitted that the jury should be in possession of all of the facts surrounding the assault upon Lu in order to properly reach a conclusion about the intention of the accused at the time of the attack upon Li.
Relevant legislation
Section 55(1) of 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.
Subsection (2)(a) provides that evidence is not taken to be irrelevant only because it relates only to the credibility of a witness.
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 the 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 it’s probative value is outweighed by the danger of unfair prejudice. The onus or burden under the section is on the accused.
As the Australian Law Reform Commission 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.
Analysis
I refer to Ruling No 1. This ruling should be read in combination with that ruling. There has been some change in the position to be taken by the accused at trial, but many of the considerations remain the same.
It remains the case that the attacks upon Lu and Li are closely intertwined. In my view, it is not possible for them to be viewed as two entirely separate events. Rather, as I noted in Ruling No 1, they are 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.
Whilst Mr Lewis conceded the relevance of the strangulation by the accused of Lu in the trial of the other charges, he contended that the other two aspects of the evidence, namely, the use of the knife and the threat to kill, are not relevant. I do not agree. First of all, all three aspects are relevant as they give colour to the nature of the assault upon Lu, which explains the hurried attendance of Li at the residence. If no specific information is provided to the jury about the earlier assault, beyond the mere fact that the accused seriously assaulted Lu, it would be obvious to them that they are being kept in the dark, and the range of conduct which might fit within the umbrella of a serious assault is very broad. The effect of this would be to leave the jury unsatisfactorily uninformed as to the circumstances of this case.
Secondly, as submitted by the prosecution, the particulars of the earlier assault are illustrative of the seriousness of that assault, and the level of anger and aggression by the accused which accompanied it. The circumstances of the first assault are indicative of a high level of anger and aggression by the accused. Because of the temporal connection between the assault upon Lu and that upon Li, the fact of the evidence demonstrating the presence of a high level of anger and aggression at the time of the earlier assault may be indicative of a continuing high level of anger and aggression at the time of the subsequent assault. This may be considered by the jury to accord with the way in which the conduct of the accused quickly escalated after the apparent conclusion of the first altercation between the accused and Li in the residence.
In my view, this evidence is capable of legitimately advancing the prosecution contention that at the time of his attack upon Li, the accused harboured the intention of killing him, or at least causing him serious injury, rather than that the accused simply foresaw the probability that serious injury would follow from stabbing Li. As I stated in Ruling No 1, having cited a passage from O’Leary v The King:[8]
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.[9]
[8](1946) 73 CLR 566.
[9]Ruling No 1 (n 2) [60].
Turning to s 137, the danger of unfair prejudice relied upon by the defence was that in respect of all three aspects of the evidence, the jury may engage in propensity reasoning which would not be amenable to judicial direction, and that the probative value of the evidence would be outweighed by that danger.
In my view, there is no reason why a judicial direction cannot be tailored to meet the needs of this case, thereby ensuring that the jury do not use the evidence about the particulars of the earlier attack in an impermissible fashion. I gave a direction in the first trial to which no exception was taken. The situation has changed somewhat. However, I think 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 accused had the state of mind alleged by the prosecution at the time of his attack upon Li. 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.
The probative value of the evidence is significant, and not outweighed by the danger of unfair prejudice.
Conclusion
The prosecution is permitted to lead evidence of the full circumstances of the attack upon Lu.
The admissibility of evidence of the contents of the 000 call and the statements made to Leeds in the police vehicle
By way of background, the prosecution served an incriminating conduct notice on the defence before the first trial which outlined a number of matters as items of incriminating conduct sought to be relied upon by the Crown. These included:
·On 23 October 2020, the accused lied to the triple zero operator that the person who cut him was a stranger who had broken into his house and had brought the knife and used it to cut him; and
·On 24 October 2020 at 5.18 pm the accused lied to police when he told them that a man had broken into his house with a knife.
In that trial, no issue was taken as to the admissibility of either the contents of the 000 call or the statements made to Leeds in the police vehicle on 24 October 2020. The matter of the possible use of these items of evidence as evidence of incriminating conduct was not discussed until the usual time, that is, at the conclusion of all of the evidence. Mr Stevens, then counsel for the accused, did not seek to resist the contention that a number of the items of evidence could properly be put forward as items of incriminating conduct for the consideration of the jury. Nor did he contend that any of the alleged lies relied upon by the prosecution could not be considered by the jury as going to the credit of the accused.
I gave directions to the jury that the prosecution relied upon a number of lies told by the accused as reflecting adversely upon his credit. In relation to a number of those lies, I directed the jury that they could, subject to compliance with the detailed directions I gave, use them as implied admissions of guilt. Those lies included:
· The lie he told to the 000 operator that Mr Li had broken into his house.
· The lie he told to the 000 operator that Mr Li had brought a knife into the house.
· The lie he told to the 000 operator that Mr Li had used the knife to cut him.
· The lie he told to Leeds that a man had broken into his house with a knife.
Defence counsel at the first trial took no exception to these directions.
Defence submissions
Mr Habib accepted, for the purpose of the discussion, that I could act on the basis that all of the statements in question were made by the accused, and were lies.
He submitted that the only way in which the lies would be relevant would be if they are capable of being relied upon as incriminating conduct. On that score, he submitted that because an equally plausible explanation for the telling of the lies existed, namely, that the accused believed that he was guilty of RCSI rather than attempted murder or ICSI, the provisions of the Jury Directions Act 2015 (‘JDA’) would dictate that the evidence could not be left to the jury as incriminating conduct.
As for the evidence being admitted as going to the credit of the accused, Mr Habib submitted that that would not arise unless and until the accused became a witness in the trial. Were that to occur, Mr Habib indicated he would have no objection to the 000 call being played to the accused during cross-examination, or to Leeds being called to give evidence about what was said to her by the accused in the police vehicle.
Even were the evidence to be admissible as going to the credit of the accused, Mr Habib submitted that its probative value would be ‘vastly outweighed’ by the danger of unfair prejudice.[10]
Prosecution submissions
[10]Transcript 51.
Dr Rogers submitted that the lies told by the accused are relevant and admissible. They were statements made voluntarily and very deliberately by the accused. From the beginning, he tried to minimise his offending and cover up the true extent of his actions. The question of the use of these lies as incriminating conduct should be left until the end of the case, when all of the evidence is in, submitted Dr Rogers. For present purposes, however, the lies of the accused are admissible as going to his credit.
Dr Rogers submitted that the concept of credit should not be construed as narrowly as defence counsel had argued. The accused’s credit is relevant to the credit or believability of his defence. The lies he told are relevant to the matter of whether he can be believed when he implicitly says, through counsel, that it was not his intention to kill Li when he stabbed him.
As for any prejudice attaching to the admission of the lies, that is only to be found in the fact that the accused cast himself in a bad light by lying as he chose to do, she submitted.
Analysis
The question at this stage is limited to the admissibility of the lies told by the accused, and not whether they would be permitted to be used by the jury as items of incriminating conduct. In most cases, the consideration of that matter is best left for the JDA discussions which routinely proceed at the conclusion of all the evidence in a criminal trial, and before the commencement of the prosecution closing address. Dr Rogers did not seek to engage in those discussions at this early stage. Rather, she relied upon the possible use of the lies of the accused as going to his credit as a basis for admissibility, quite aside from a determination whether or not the lies might also be viewed as items of incriminating conduct.
Mr Habib submitted that the admission of the lies of the accused could only be justified on the basis of their use as items of incriminating conduct, and that the requirements for such use would dictate that they could not be admitted because there would be another equally open explanation for the lies, aside from the accused’s belief that he was guilty of attempted murder or ICSI.
In respect of the possible use of the lies as going to the credit of the accused, Mr Habib submitted that this could not occur unless and until the accused gave evidence in the trial.
I do not accept that submission. It has never been the case that the credit of an accused is a non-issue unless and until he gives sworn evidence. In this trial, the accused will be advancing the defence, through his counsel, that he did not intend to kill Li, and did not intend to cause serious injury to him. All that was in his mind when he stabbed Li was an awareness that serious injury would probably be the result. In those circumstances, the Crown wants to be able to put to the jury the contention that the person advancing that defence showed himself, from the very first time he spoke about what he had done, to be thoroughly dishonest, and that his assertion now as to what was in his mind at the time of the attack upon Li should not be accepted.
In my view, there is no reason why the prosecution should not be in a position to do that. The lies told by the accused to both the 000 operator and Leeds are relevant to his credit. The credit of an accused is always relevant in a criminal trial.
As for the submission by Mr Habib that the evidence, if admissible, should be excluded pursuant to s 137 of the Act, I do not accept that contention. For the reasons I have stated, the lies told by the accused go to his credit, and his credit may be considered to be an important matter. The only prejudicial effect of that evidence is that it shows that the accused saw fit to lie repeatedly about the true facts of his conduct. If, in the end, the jury are not permitted to use the evidence for the purposes of incriminating conduct, then it would be open to defence counsel, pursuant to sections 12 and 23 of the JDA, to seek a direction to ensure that the jury do not misuse the lies told by the accused.
I am not satisfied that the probative value of the evidence is outweighed by the danger of unfair prejudice. Therefore, there would be no call for the exclusion of the evidence pursuant to s 137 of the Act.
Conclusion
The prosecution is permitted to lead the evidence of the lies told to the 000 operator and to Leeds.
The admissibility of certain portions of the evidence of eye-witnesses during the first trial about the CCTV footage that was played to them
By way of background to consideration of the current matter, Lu, Li, Duan and two other eye witnesses to the attacks upon Lu and Li gave sworn evidence in the first trial. Each gave evidence in Mandarin through a qualified Mandarin interpreter. Each was shown some CCTV footage taken from two cameras installed in the premises next door to the residence. One of the cameras captured views of part of the area outside the front door of the residence. From that camera, images of Li, the accused and others were captured, including sound. The other camera captured views of part of Nestor Grove, the court in which the residence was situated. From this camera, images of Li, the accused and others were captured, including sound.
At the first trial, each of the witnesses who viewed the CCTV footage was asked at various points to identify himself or herself and any other persons visible in the footage, to describe what was occurring, and to translate, into English, and identify the speaker of, words audible on the exhibit.
The prosecution proposes to play the recorded evidence of each of the witnesses in the second trial. This will be done without objection from the accused, with the exception of some aspects of the questioning of the witnesses.
Prosecution submissions
Dr Rogers submitted that all five witnesses were present during the events, were to a greater or lesser extent participants in those events, and were known to each other, again, to a greater or lesser extent. All were in a position to identify themselves and others, and by virtue of their command of Mandarin, to indicate the words spoken in that language by any of the people captured on the CCTV.
Dr Rogers submitted that each of the pieces of evidence is relevant to a fact in issue because it directly concerned what the accused did and said and how those involved in the incident behaved and spoke as the incident unfolded.
Dr Rogers distinguished the facts of this case from those in Smith v The Queen.[11] Each witness was an active participant in the actual scenes captured by the CCTV footage. She relied on a statement made by Nettle JA in Wade v R,[12] in support of the contention that it would be permissible for these witnesses to relate and describe what they could see in the footage.
[11](2001) 206 CLR 650 (‘Smith’).
[12](2014) 41 VR 434 (‘Wade’).
Dr Rogers submitted that the CCTV footage would be completely meaningless unless the witnesses were permitted to speak to it.
As for what was said, the evidence of each witness in that respect is admissible as lay opinion pursuant to s 78 of the Act. Dr Rogers referred to Lithgow City Council v Jackson,[13] as authority for that proposition. The words spoken on the footage would be meaningless to the jury without translation, which the witnesses were in a position to provide. Their evidence unfolded in front of the accused, a Mandarin speaker, who had the assistance of a professional Mandarin interpreter. There was no challenge at the first trial to this process, or to the accuracy of any evidence given about the translations.
[13](2011) 244 CLR 352.
There would be no unfairness to the accused were the evidence of what witnesses said in response to question about the CCTV to be played to the jury in the re-trial.
Defence submissions
Mr Habib did not dispute the proposition that the CCTV footage is admissible in the trial. Nor did he have any difficulty with witnesses identifying themselves and other people in the footage, or identifying the voices audible in the footage. What he objected to was the playing, in the retrial, of the evidence of the witnesses when they purported to indicate what was said in Mandarin during the footage, and when they engaged in commentary about the events unfolding in the footage.
On the first score, Mr Habib observed that it would have been open to the prosecution to obtain an interpreter to translate the things said on the CCTV footage into English. This was not done. The use of witnesses to carry out this task was a poor substitute. These witnesses were involved in the events, and Mr Habib submitted that it would be difficult to know whether witnesses were interpreting their best recollection of what was said with the assistance of the CCTV footage, or were genuinely translating what they could hear when the footage was played. In the retrial, it would not be open to Mr Habib to test the witnesses on such concerns.
As for the second issue, that is, the commentary provided by witnesses about what they could see on the footage, Mr Habib submitted that the actions of individuals as observable on the footage speak for themselves. The best evidence is what is visible on the footage, and the jury in the retrial will be in a good position to assess what is visible. They do not need the views of the witnesses about such matters.
Analysis
I see no reason why the evidence given by the witnesses about the words uttered by the accused, Li, and others in the footage should not be before the jury. I agree that it would have been better had a professional translation been arranged in advance of the first trial, but this was not done. Without any objection from counsel then appearing for the accused, the witnesses, through a Mandarin interpreter, were asked to indicate the words spoken in Mandarin, their native language, which were audible in the footage. They did so as the accused, himself a native Mandarin speaker, sitting next to a Mandarin interpreter, listened to what was occurring. At no time during that process, or since its completion, was any issue taken with the accuracy of the evidence of the witnesses about the words spoken.
Without this evidence being permitted to be led in the retrial, the jury will be denied any knowledge of what was being shouted and spoken about as the events on the CCTV footage unfold. That, in my view, would be unsatisfactory.
As to any risk that the witnesses’ translations were infected in some way by their own involvement in the events, in light of the matters to which I earlier referred, including the fact that this whole process unfolded without any objection at all from counsel for the accused, this risk can be discounted.
As for the other matter, that is, the admissibility of any evidence of the witnesses in which they provided commentary about what was visible in the footage, beyond identifying the persons able to be seen, I accept the defence submission that this evidence should not be included in the recorded evidence played to the jury. In circumstances where the jury will be in a good position to assess the movements and actions of people in the footage, the witnesses’ perception of things is of no importance.
Conclusion
The prosecution will be permitted to play the recorded evidence of witnesses in which they translated into English the words audible to them when the CCTV footage was played to them. The prosecution will not be permitted to play the recorded evidence of witnesses in which they purported to describe what was visible or occurring in the footage as it was played to them.
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