JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 7, 8, 12, 19, 20 and 23 August 2019
DATE OF RULING:	13 December 2019
CASE MAY BE CITED AS:	DPP v Tran (Ruling No 2: dying declaration)
MEDIUM NEUTRAL CITATION:	[2019] VSC 824

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CRIMINAL LAW — evidence — accused charged with bashing murder — identity of attacker a critical issue — no eyewitness to crime — deceased made representation that ‘girl in pink’ was her attacker — evidence of accused wearing pink clothing in vicinity before and after killing — representation of deceased was by nodding to leading questions asked when she was mortally injured in emergency circumstances after attack — whether representations of deceased were conscious and meaningful — deceased an unavailable witness — whether evidence of her nodding was representation relating to fact in issue — whether made in circumstances that made it unlikely that representation was a fabrication — whether fabrication includes mistaken invention or confined to deliberate falsification — whether evidence should be excluded on discretionary grounds — Evidence Act 2008 (Vic) ss 65(2)(b), 137.

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APPEARANCES:	Counsel	Solicitors
For the prosecution	Mr M Gibson QC with Mr D A Glynn	Office of Public Prosecutions Victoria
For the defence	Mr G W Casement with Ms S Lenthall	Leanne Warren & Associates

HIS HONOUR:

As stated in the first ruling in this trial,[1] the accused is charged with the bashing murder of the deceased, an elderly Vietnamese woman. Although the killing occurred in a suburban street, there were no eyewitnesses. There is evidence of the presence of the accused wearing pink clothes in the vicinity just before and after the event. Identity and intention are the main issues.
[1]DPP v Tran (Ruling No 1) [2019] VSC 538 (30 August 2019) (Bell J).

Pursuant to notice given under s 67(1) of the Evidence Act 2008 (Vic), the prosecution seeks to have admitted against the accused hearsay evidence in circumstances where the witness is unavailable. The witness is the deceased and the hearsay evidence is her answer by nodding that the person who attacked her was ‘the girl in pink’. The prosecution relies upon the exceptions to the hearsay rule in s 65(2)(b) and (c), which apply where the maker of a previous representation is not available at trial, as the deceased is not.

The defence oppose the admission of the evidence on three grounds:

· the nodding cannot be accepted as a meaningful previous representation;

· if the nodding represented that the attacker was the girl in pink, the prosecution has not established that it is unlikely that this representation was a fabrication; and

· in any event, the court should exercise its discretion in s 137 to exclude the evidence.

Did the deceased make a previous representation?

The exclusionary rule relating to hearsay in s 59(1) and the exceptions in…

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 Tran (Ruling No 2)

Details

AGLC: Director of Public Prosecutions v Tran (Ruling No 2: dying declaration) [2019] VSC 824
Case: [2019] VSC 824
Decision Date: 13 December 2019

CaseChat Overview and Summary

In this case, the Director of Public Prosecutions brought proceedings against Tran, who was charged with the murder of a woman by bashing. The identity of the attacker was a critical issue in the case, as there were no eyewitnesses to the crime. The deceased woman had made a representation, when mortally injured, that the attacker was a "girl in pink." There was evidence that the accused was wearing pink clothing in the vicinity before and after the killing. The deceased woman's representation was made by nodding to leading questions when she was in emergency circumstances following the attack. The court had to determine whether the representation made by the deceased woman was conscious and meaningful, and whether it was a representation relating to a fact in issue. Additionally, the court needed to decide whether the representation was made in circumstances that made it unlikely that it was a fabrication. The court also had to determine whether the term "fabrication" includes mistaken invention or is confined to deliberate falsification. Finally, the court had to decide whether the evidence should be excluded on discretionary grounds under the Evidence Act 2008 (Vic) ss 65(2)(b), 137.

The court considered the nature of the representation made by the deceased woman and whether it was conscious and meaningful. The court found that the deceased woman's representation was made in emergency circumstances and was a response to leading questions, but it was still a representation relating to a fact in issue. The court also found that the circumstances in which the representation was made made it unlikely that it was a fabrication. The court held that the term "fabrication" includes mistaken invention as well as deliberate falsification. However, the court found that the evidence should not be excluded on discretionary grounds as the probative value of the evidence outweighed the danger of unfair prejudice.

The court's reasoning and outcome were based on a careful consideration of the evidence and the applicable law. The court found that the deceased woman's representation was conscious and meaningful, and that it was made in circumstances that made it unlikely that it was a fabrication. The court held that the term "fabrication" includes mistaken invention as well as deliberate falsification. However, the court found that the probative value of the evidence outweighed the danger of unfair prejudice, and therefore, the evidence should not be excluded on discretionary grounds. The accused was ultimately found guilty of the murder.

No further orders were made by the court.

Orders