R v Do (No. 2)

[2015] NSWSC 111

Supreme Court

New South Wales

Medium Neutral Citation:	R v Do (No. 2) [2015] NSWSC 111
Hearing dates:	24 February 2015
Date of orders:	25 February 2015
Decision date:	26 February 2015
Jurisdiction:	Common Law - Criminal
Before:	Davies J
Decision:	See paragraphs [17], [25] and [33].
Catchwords:	CRIMINAL LAW – murder - evidence – relationship evidence – whether particular issues in the relationship between the accused and the deceased should be rejected – evidence having probative value – no unfair prejudice
Legislation Cited:	Evidence Act 1995 (NSW)
Cases Cited:	Clark v R [2001] NSWCCA 494; (2001) 123 A Crim R 506 Norman v R [2012] NSWCCA 230 Wilson v R (1970) 123 CLR 334
Category:	Procedural and other rulings
Parties:	Crown Tony Thao Do (Defendant)
Representation:	Counsel: N Noman SC (Crown) C Smith SC and B O’Reilly (Defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Defendant)
File Number(s):	2012/294022

Judgment

1. The Crown has served a notice under s 67 of the Evidence Act 1995 (NSW) to lead firsthand hearsay evidence of certain matters that might broadly be described as relationship evidence. The evidence is of conversations between the deceased and various persons where the deceased has said things about the accused and her relationship with him.

2. The evidence concerned is specified in the Notice but largely falls into two categories as was accepted by the parties. The first relates to discussions about a prenuptial agreement between the accused and the deceased. The second concerns the position of the accused’s visa to stay in Australia.

3. There were a few other passages in dispute. I rejected paragraph 9 of the Statement of Aminda Huynh dated 27 September 2012 as being conclusionary. Portions identified in paragraphs 14 and 15 were not objected to if led in proper form. The highlighted portion of paragraph 19 was objected to on the basis that the evidence did not inform matters about the relationship and was conclusionary. I consider that the material did provide relevant evidence about the state of the relationship but that it needed to be led in admissible form.

4. I turn now to consider the remainder of the material which falls within one or both of the areas mentioned.

5. In each case the defence argues that the evidence is of such little probative value and that that probative value is outweighed by the danger of unfair prejudice to the accused pursuant to s 137 of the Evidence Act 1995 (NSW). In each case the Crown submits that the area of discourse is part of the whole relationship between the accused and the deceased and, in particular, that the matters gave rise to, and contributed to, tension in the relationship between the parties such that it is important that the evidence be before the jury.

(1)   The prenuptial agreement

6. The evidence tends to suggest some doubt about the marital status that existed between the accused and the deceased. Exhibit 2 on the voir dire was what was entitled “A Marriage Keepsake” which otherwise purported to be a marriage certificate evidencing a marriage at Sacramento in California on 7 July 2011. Yet a number of witnesses report conversations at a later time with the deceased concerning what was called a prenuptial agreement and the deceased’s desire to have the accused sign such a document.

7. The following are the relevant passages in the statements:

• Aminda Huynh dated 27 September 2012 – paragraph 42;

• Alice Huynh dated 15 September 2012 – paragraph 18;

• Alice Huynh dated 27 September 2012 – paragraphs 32 and 35;

• Anna Huynh dated 27 September 2012 – paragraph 28;

• Tri Dung Vo dated 6 October 2012 – paragraphs 9 and 10;

• Vien Doan paragraph 15

8. It is not necessary to set out what is contained in those paragraphs in detail. It is sufficient to say that, with the exception to what is contained in the statement of Tri Dung Vo, the evidence concerns conversations that the deceased has had with the witnesses of her desire that the accused sign a prenuptial agreement but that he would not do so because he said he did not want to have any part of the family’s financial affairs. The material in the statement of Mr Vo, who is a solicitor, is that the deceased spoke to him about his preparing a financial agreement between her and the accused and then refer to his efforts to follow those instructions up.

9. The defence submits that the evidence was of small probative value because of the small degree to which the evidence bore upon the relationship. There is certainly other evidence of disharmony in the relationship, as the defence accepts, but this present evidence is said only to disclose a belief on the part of the deceased that the accused would not sign the prenuptial agreement. The evidence does not indicate that on the side of the accused this brought about disharmony in the relationship.

10. In Norman v R [2012] NSWCCA 230 Macfarlan JA (with whom Price and McCallum JJ agreed) said:

[33]   The Crown also submitted that the evidence was relevant to demonstrate "the nature of the relationship" (Crown's Written Submissions [17]) but, consistently with the approach taken by this Court in Qualtieri [Qualtieri v R [2006] NSWCCA 95; 171 A Crim R 417] and DJV [DJV v R [2008] NSWCCA 272], it is insufficient to rely solely upon such a proposition. Evidence "is not relevant merely because it discloses aspects of the relationship between an accused and a complainant. There must be an issue which the evidence may explain or resolve by placing the alleged events in their true context": DJV per McClellan CJ at CL at [29]. Particularly because of its potentially prejudicial character, the precise basis upon which the evidence is relevant must be closely analysed. …

11. In my opinion, the issue which the evidence may explain was the apparently declining relationship between the accused and the deceased. It is apparent that the prenuptial agreement in the deceased’s mind was a matter of some significance that she mentioned it as often as she did.

12. Common sense suggests that in the case of the killing of a person where the accused is a spouse, a partner or even a friend, the nature of the relationship between the accused and the deceased would need to be explored. That may be because the evidence would disclose positive things between the parties as well as negative things. So much can be discerned from what was said by Barwick CJ in Wilson v R (1970) 123 CLR 334 at 337 and Heydon JA in Clark v R [2001] NSWCCA 494; (2001) 123 A Crim R 506 at [135] and [137].

13. In my opinion the evidence has probative value. It would be artificial to excise evidence relating to the prenuptial agreement from the other evidence about the relationship generally and, in particular, other evidence about tensions in the relationship and the causes of that tension.

14. The defence says that the admission of this evidence will cause unfair prejudice because the jury will unduly concentrate on the failure of the accused to agree to sign a prenuptial agreement and might wrongly reason that he did so with a view to killing the deceased. The defence says that no direction given to the jury could overcome the prejudice because the giving of a direction would serve only to emphasise the issue in the jury’s mind.

15. No case will be put by the Crown suggesting any link between the evidence concerning the prenuptial agreement and the deceased’s death apart from the fact that it was one of a number of contributing factors to the increased tension within the relationship.

16. The evidence concerning the prenuptial agreement does not tend to emphasise any behaviour or hostile attitude on the part of the accused. In that regard, the defence is correct in saying that the emphasis is on the belief and apparent irritation on the deceased’s part that the accused would not sign such an agreement. However, that conclusion does not mean that the evidence does not have probative value. It does, however, point to the small nature, if any, of prejudice that will arise by reason of its admission. The issue is simply presented as one of a number of matters which, at least on the side of the deceased, was increasing the level of tension within the relationship.

17. In my opinion, the evidence is admissible.

18. The defence also sought to have excluded the portions of the ERISP that dealt with the prenuptial agreement on the ground that the evidence was unfair because of the questioning. The relevant questions and answers are as follows:

Q430   [00.34] And I also believe that you were, are married to Kim in America.

A (Int):   Yes.

Q431   O.K. And you were talking about getting married in Australia.

A (Int):   Yes.

Q432   O.K. We've also been told about prior to you getting married in Australia that Kim wished for you to sign a prenuptial agreement.

A (Int):    …what about prenup, can you say a little bit further.

Q433   A prenuptial agreement is an agreement that if you divorce that you won't have a claim against the properties or money that those persons already had.

A (Int):   There is no, she, she didn't want to do any prenup and there is no prenup in place. And the children, her children already know that, you know, they will, you know, inherit her fortune and what we enjoys, you know, when we retire that what we are working together, together.

Q434   O.K. I'm aware of that. Now the question is, and I know that there is no prenuptial agreement signed.

INTERPRETER: Yes.

DETECTIVE SERGEANT LOWE

Q435   My question is, did Kim ask you to sign a prenuptial agreement before you got married?

[D: No, she said no need. She and I...] [Int: ... just answer the question. The question is simple and please answer to the question.] [D: Yeah.] [Int: Don't expand it further, that is before you got married to Kim, did she tell you that she wanted you to sign a prenup...] [D: No.] [Int:... like an agreement prior to getting married?] [D: No.]

A (Int):   No. She said, no, no.

Q436   When did you first hear about this agreement?

A (Int):   I didn't know anything about it and I only know it now when you told me but I didn't know it before that.

Q437   O.K. So, so this is the first time you've heard of any such plan of Kim?

A (Int):   No, she, she didn't tell me anything.

Q438   Did any of the daughters talk to you about this?

A (Int):   No. No. No, they never. No, they never, they never let me know. They never tell me anything.

Q438   Hearing about such a thing now how does that make you feel?

A(Int) I didn't, I didn't feel anything because, you know, I, I didn't pay attention to the money or I am not interested in money. I don't know anything about the money matters. Actually she did all the paperwork. She help me to get the divorce paper with my previous wife and then she went to America to do the paperwork about, you know, marriage certificate, you know, our marriage certificate. She lodge application for me to migrate to Australia. She did every paperwork. I didn't know anything about paperwork.

Q440   [00.40] O.K. O.K. So there was no talk or anything, you have no

knowledge of a prenuptial agreement until I've just mentioned it?

A (Int):   Yeah, that's the case. I never heard anything about that. She never told me anything about that until now, until when you told me about it.

19. The answer in bold to Q 435 is the translation by an interpreter subsequently engaged by the New South Wales Crime Commission to listen to the tape of the accused’s ERISP and translate what he heard where it differed from the translation provided at the time.

20. The Crown will rely upon the answers given by the accused that he knew nothing about a prenuptial agreement and that he said the deceased had never asked him to sign one.

21. The unfairness is said to derive from the confusion about the marital status of the accused and the deceased. I noted earlier that there was what purported to be a marriage certificate showing that the accused and the deceased had married in Sacramento in July 2011 but that the subsequent conversations by the deceased in relation to a prenuptial agreement suggested otherwise.

22. Question 435 is said to be unfair because it is ambiguous. It is submitted that the question was understood by the accused as being asked of the period before the Sacramento marriage. There is no evidence that the deceased asked the accused to sign such an agreement before that marriage. All of the evidence was at a time after July 2011 when the accused came to live in Australia.

23. Whilst I can accept that question 435 when viewed in isolation contains some ambiguity (it could be referring to the marriage in Sacramento or it could be referring to a proposed marriage in Australia), when understood in the context of the earlier questions, I do not consider that there is any unfairness arising from the answers. While question 430 asked whether the accused married the deceased in America, question 431 and 432 asked about a proposed marriage in Australia. (I observe in passing that it is not clear what status such a marriage would have if the marriage in Sacramento was a valid one.) In particular, the first time the questioner introduces the topic of a prenuptial agreement was in question 432 which asked about the signing of such a document “prior to you getting married in Australia”. The only fair reading of question 435 is that it was asking the same question as question 432.

24. I have already held that conversations relating to the signing of a prenuptial agreement are admissible. I do not consider that there is any unfairness arising from these particular questions in the ERISP. It is ultimately a question for the jury what they make of the answers given to these questions when set against the evidence of the witnesses who detail conversations from the deceased about the accused is alleged to have said and the evidence of Aminda Huynh of her discussions with the accused about the matter.

25. I decline to reject this part of the ERISP.

(2)   The visa arrangement

26. There is evidence from an officer of the Department of Immigration Border Protection that the accused applied for a sub-class 820/sub-class 801 partner combined visa on 28 September 2011. The deceased was recorded as the visa sponsor for the application. By 17 February 2015 no decision had been made on the accused’s sub-class 820 temporary partner application. There was no record in the system of the Department having been advised or been given information to indicate that the relationship between the deceased and the accused had broken down.

27. The Crown seeks to lead that evidence and also evidence in the following statements concerning the accused’s visa:

• Aminda Huynh of 27 September 2012 – paragraph 19;

• Anna Huynh of 27 September 2012 – paragraph 27;

• Vien Doan – paragraphs 15 and 16.

28. The defence submits that the evidence about the visa arrangements has no probative value. It cannot assist the jury to come to any view that the accused intended to kill the deceased because, if the deceased was not alive, the accused would cease to have the sponsor for him to obtain his permanent residence in the country.

29. The Crown submitted that the visa matter and the discussions about sending the accused back to America were just one of a number of issues that were contributing to disharmony in the relationship. Again, the Crown submits that it would be artificial to excise that aspect of the relationship from the other matters.

30. I accept the Crown’s submission that it would be artificial to excise this matter from the remainder of the details of the relationship. Mr Smith SC submitted that it was highly prejudicial because the jury could reason that she was supporting the accused and that the threat to withdraw the support might have led him to murder her. Because, I think, that this was somewhat counter-intuitive Mr Smith said that he struggled to articulate why the evidence was indeed probative at all.

31. I accept that the visa matter has less probative value than some of the other differences between the accused and the deceased. However, it forms a part of their relationship and it might be thought by the jury to have a significance in favour of the accused. His continuing residence in this country appears to have been dependent upon continuing sponsorship by the deceased.

32. I do not consider that there is unfair prejudice from the admission of the evidence. As I have indicated, the evidence tends to support an inference that the accused would not want the deceased dead precisely because he did not want to return to the USA.

33. In my opinion the evidence should be admitted.

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Decision last updated: 19 March 2015