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

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

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”…

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 R v Do (No. 2)

Details

AGLC: R v Do (No. 2) [2015] NSWSC 111
Case: [2015] NSWSC 111
Decision Date: 26 February 2015

CaseChat Overview and Summary

The case of R v Do (No. 2) was heard in the Supreme Court of Victoria, where the accused, Do, was charged with the murder of the deceased, Ms. Nguyen. The dispute centred on the admissibility of certain relationship evidence that the prosecution sought to introduce, which they argued was relevant to the circumstances of the crime. The accused contested the admissibility of this evidence, asserting that it would unfairly prejudice the jury against him.

The court had to decide whether the evidence in question was admissible under the relevant provisions of the Evidence Act 2008 (Vic). The primary legal issue was whether the probative value of the evidence outweighed any potential prejudicial effect it may have on the jury. The court considered whether the evidence was necessary to establish a fact in issue or to properly understand other evidence in the case. Additionally, the court needed to assess whether the evidence would cause unfair prejudice to the accused, potentially leading to a miscarriage of justice.

The court found that the evidence was relevant and had significant probative value in understanding the circumstances of the murder and the relationship dynamics between the accused and the deceased. It was determined that the evidence was necessary for the jury to properly assess the case and that any prejudicial effect could be managed through appropriate directions to the jury. The court concluded that the probative value of the evidence substantially outweighed any prejudicial impact it might have, and therefore, it was admissible. The court carefully balanced the need for a fair trial with the necessity of considering all relevant evidence to determine the truth.

As a result of the court's decision, the evidence was admitted, and the trial proceeded with this evidence being considered by the jury. The final orders of the court were to allow the evidence to be presented to the jury, subject to the court's directions to mitigate any potential prejudicial effects.

Orders