DPP v Tran (Ruling No 2)

The case of DPP v Tran (Ruling No 2) involved the Director of Public Prosecutions prosecuting Tran for the murder of a woman in Melbourne. The woman had been fatally bashed, and the identity of the attacker was the central issue, with no eyewitnesses available to identify the assailant. The deceased had made a representation before she died, indicating that the attacker was a girl in pink. Evidence showed that Tran was seen wearing pink clothing both before and after the attack. The deceased's representation was made through nodding to leading questions asked while she was mortally injured in emergency circumstances. The court had to determine whether the deceased's representation was conscious and meaningful, and whether it could be admitted as evidence under the provisions of the Evidence Act 2008 (Vic).

The primary legal issues were whether the deceased's representation was a conscious and meaningful statement made in circumstances that made it unlikely to be a fabrication, and whether such a representation could be admitted under the exceptions to the hearsay rule. The court also considered whether the term "fabrication" included mistaken invention or was limited to deliberate falsification. The court needed to decide if the evidence should be excluded on discretionary grounds under s 137 of the Evidence Act 2008 (Vic).

The court ruled that the deceased's representation was conscious and meaningful, as she was nodding in response to leading questions while in an emergency situation. The court found that the deceased's nodding was a representation relating to the fact in issue, and that the circumstances made it unlikely that the representation was a fabrication. The court concluded that "fabrication" included both mistaken invention and deliberate falsification. Despite these findings, the court exercised its discretion under s 137 of the Evidence Act 2008 (Vic) to exclude the evidence due to the significant risk of unfairness. The court emphasised that the deceased's representation, though conscious and meaningful, was not admissible because admitting it would unfairly prejudice the defendant. The court did not make any final orders regarding the admissibility of the evidence but provided guidance on the discretionary considerations that would apply if the case proceeded to trial.