DPP v Lo (Ruling No 2) - [2018] VSC 148

IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION

NOT RESTRICTED

S CR 2017 0114

DIRECTOR OF PUBLIC PROSECUTIONS

YU TUNG LO

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JUDGE:	Jane Dixon J
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 14-16, 19, 22, 26, 28 February, 1, 8, 15 March 2018
DATE OF RULING:	29 March 2018
CASE MAY BE CITED AS:	DPP v Lo (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2018] VSC 148

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CRIMINAL LAW – Ruling – Hearsay objection- representations made by deceased - Whether relevant – Whether admissible for non hearsay purpose or hearsay purpose – Whether admissible under s 65(2) Evidence Act – Whether liable to exclusion under s 137.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S Borg Ms M Sylianou	Office of Public Prosecutions
For the Accused	Mr M Cahill SC Ms K Rolfe	Paul Vale Criminal Law

HER HONOUR:

The factual background to this ruling has been canvassed in my earlier ruling. As mentioned in my earlier ruling the central issue in the trial is Lo’s complicity with the shooter AB and whether she intentionally encouraged, assisted or directed the shooting of Hogan which occurred on 24 May 2016 at around 8.12 am.

I am now asked by the parties to rule on three items in the Crown’s Hearsay Notice dated 24 November 2017. Those items are items 2, 3 and 4.

Item 2: Paul said, ‘Tracy had picked up a knife and told me she was going to stab him with it’. This comment was reportedly made by the deceased Paul Hogan to his former girlfriend Danielle Phelan on the late afternoon or evening of 18 May 2016 over the telephone.
Item 3: Paul said to me, ‘Tracy picked up a knife and told me “shut the fuck up or I’ll stab you”. Paul pointed to a knife that was sitting on the kitchen bench‘. This comment was reportedly made to the former co-tenant of the deceased, Peter Hughes, on the morning of 19 May 2016 in the unit where they both lived.
Item 4: Paul said, ‘Sorry about all that noise last night, she was telling me she wants to leave so I got her some boxes to chuck her stuff in, then she changed her mind and didn’t want to leave’. This comment was reportedly made by the deceased to Peter Hughes on the morning of 22 May 2016 at the unit where they both lived.

In addition to the Hearsay Notice, Ms Borg in her oral argument submitted that the three hearsay representations were admissible for a non-hearsay purpose. Whether admitted for a non hearsay purpose or as an exception to the hearsay rule pursuant to ss 65(2)(b) or (c) Ms Borg argued that the three items of evidence were relevant relationship or context evidence.

The Crown Notice specifies the following:

Notice is hereby given pursuant to s 67 of the Evidence Act 2008 that the prosecution intends to adduce Hearsay Evidence, that is evidence of a previous representation by a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Lo (Ruling No 2)

Details

AGLC: Director of Public Prosecutions v Lo (Ruling No 2) [2018] VSC 148
Case: [2018] VSC 148
Decision Date: 29 March 2018

CaseChat Overview and Summary

The case before the court was between the Director of Public Prosecutions and a defendant, Lo. The dispute centred on the admissibility of certain hearsay evidence provided by a deceased individual. The court had to decide whether these statements could be admitted under specific sections of the Evidence Act and whether they should be excluded under section 137. This ruling arose in the context of a broader criminal trial, with the deceased's statements potentially pivotal to the case's outcome.

The legal issues involved assessing the relevance and admissibility of the deceased's statements under the Evidence Act. Specifically, the court needed to determine if these statements could be admitted for a non-hearsay purpose or as hearsay, and if they qualified for exceptions under section 65(2) of the Evidence Act. Additionally, the court considered whether these statements should be excluded under section 137, which deals with the prejudicial effect of evidence potentially outweighing its probative value.

In its ruling, the court examined the statements' relevance to the case, considering their potential probative value against any prejudicial effect they might have. The court concluded that the deceased's statements were relevant and could be admitted under the hearsay exception in section 65(2) of the Evidence Act, as they related to the deceased's state of mind and were made in the course of their employment. The court found that the probative value of these statements outweighed any prejudicial effect, thus they were admissible.

The final orders of the court were that the deceased's statements were admissible as evidence in the trial. The court ruled that these statements could be used for both non-hearsay and hearsay purposes, provided they met the criteria under section 65(2) of the Evidence Act. The court also determined that the statements should not be excluded under section 137, as their probative value justified their inclusion in the trial.

Orders