R v Fang (No. 2)
[2016] NSWSC 1784
•16 December 2016
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New South Wales |
Case Name: | R v Fang (No. 2) |
Medium Neutral Citation: | [2016] NSWSC 1784 |
Hearing Date(s): | 11 November 2016 |
Date of Orders: | 11 November 2016 |
Decision Date: | 16 December 2016 |
Jurisdiction: | Common Law - Criminal |
Before: | Johnson J |
Decision: | Jian Feng Weng is competent to give sworn evidence. |
Catchwords: | CRIMINAL LAW – murder trial - whether adult Crown witness competent to give evidence - witness found unfit to be tried in separate criminal proceedings - ss.12 and 13 Evidence Act 1995 - applicable principles on competence inquiry - presumption of competence not displaced - witness competent to give sworn evidence |
Legislation Cited: | Crimes Act 1900 |
Cases Cited: | Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230 |
Texts Cited: | --- |
Category: | Procedural and other rulings |
Parties: | Regina (Crown) |
Representation: | Counsel: |
File Number(s): | 2014/291301 |
Publication Restriction: | --- |
JUDGMENT
JOHNSON J: In advance of the murder trial of the Accused, Zhen Fang, a question arose as to the competence of a Crown witness, Jian Feng Weng, to give evidence.
Given the listing of the trial to commence on 14 November 2016, I conducted an inquiry into Mr Weng’s competence on 11 November 2016: s.189(1)(c) Evidence Act 1995. At the conclusion of the inquiry, I ruled that Mr Weng was competent to give sworn evidence at the trial and I indicated that my reasons would follow at a later date. This judgment contains my reasons for that ruling.
The Crown Case Against the Accused
The Accused is charged that, between 31 August 2014 and 11 September 2014 at Guildford or elsewhere in the State of New South Wales, he did murder Ting Huang.
What follows is drawn from the Crown Case Statement. The Crown alleges that the Accused killed Mr Huang by stabbing, probably at premises at 5 Kennedy Street, Guildford (“the Guildford premises”). Mr Weng lived at the Guildford premises.
As a result of forensic examination of the Guildford premises, the Crown alleges that Mr Huang’s blood is located in various parts of the premises, and that there is evidence that an attempt was made to clean the premises. The Crown alleges that a doona cover, in which Mr Huang’s body was ultimately found, was taken from the Guildford premises.
On 10 September 2014, the Accused, together with his wife, attended the Padstow Chinese Congregational Church. The Accused told the pastor that he had done something to a person, with his words being accompanied by a throat-slitting gesture with his hand. In conversation with the pastor, the Accused said, “That person wanted to kill [my] whole family”. In that conversation, the Accused did not mention the identity of the person who had been killed.
On 11 September 2014, Campsie Police Station received a telephone call from a person who identified herself as a legal practitioner named Belle Lou. She told police that she had a client who would shortly be attending the Campsie Police Station to confess to a murder that had occurred within the last week in the Guildford area.
Soon after, the Accused and his wife arrived at the Campsie Police Station. Police made arrangements for a Mandarin interpreter to attend immediately and Ms Lou attended the police station as well. A conversation ensued between police and the Accused with the assistance of the interpreter. Due to the vagueness and lack of detail of the Accused’s claim and his general behaviour, police became concerned that the Accused may be displaying signs of mental illness and formed the view that the Accused should undertake a mental health assessment. Arrangements were made for the Accused to be taken by ambulance to St George Hospital. Following an assessment at the hospital, the Accused was found not to be suffering from a mental illness or mental disorder and he was released.
As a result of the information provided by the Accused, further enquiries were carried out by police, but they were unable to progress the matter and no further action was taken.
On 21 September 2014, a telephone call was received on “Crime Stoppers” reporting that a green Honda sedan had been abandoned in East Street, Lidcombe for a number of weeks. Police attended the location and observed that the vehicle was unlocked. A set of keys was observed under the wheel of the vehicle. On opening the door to the vehicle, police were immediately met with an overwhelming odour. A search of the boot disclosed the remains of the decomposed body of Mr Huang, wrapped in a doona cover.
Police established a crime scene. Within the front passenger seat area, police located two bloodstained gloves. Subsequent DNA analysis revealed the presence of the DNA profile of the Accused, Mr Huang and an unknown male on the inside of the wrist areas of the gloves.
Enquiries revealed that the Honda sedan was registered to Mr Huang. A search of the body located Mr Huang’s wallet.
CCTV footage taken from buses that use a route that takes in East Street, Lidcombe showed that the Honda sedan was left at the place where it was found some time between 8.26 pm on 6 September 2014 and 7.00 am on 7 September 2014.
On 22 September 2014, a post-mortem examination was carried out on the body. The examination revealed that Mr Huang died approximately two weeks prior to 21 September 2014. The cause of death was found to be multiple stab wounds to the neck and trunk.
On 24 September 2014, police received information via “Crime Stoppers” that the Honda sedan was connected, in some way, to the Guildford premises. Police attended the Guildford premises and ascertained that Mr Huang had recently resided there sporadically.
Police declared the Guildford premises a crime scene. Forensic examination revealed the blood of Mr Huang at 15 different locations throughout the premises. In particular, Mr Huang’s blood was located throughout the living area, the floor of two bedrooms, the main bathroom and on the rear of two bedroom doors. Blood spotting was detected on the main wall of the bathroom and also inside the shower.
DNA material of the Accused was also located amongst the blood spotting on the wall of the bathroom.
Police also observed that bedding from the premises was similar to the doona cover in which the body of Mr Huang was wrapped.
Police interviewed Mr Weng, the occupier of the Guildford premises, on 24 September 2014. He told police that Mr Huang had been living on and off at the Guildford premises for a few months prior to his death. Mr Weng told police that the Accused would also stay over at the premises from time to time.
He said that the last time he had seen Mr Huang, he (Mr Huang) was with the Accused and they had a very heated argument. He told police that he did not know what the argument was about. He said that Mr Huang and the Accused were on a sofa in the living room when they were arguing. Mr Huang said that he had heard the Accused say to Mr Huang, “Why did you threaten me?”, but he had not heard any reply. Mr Weng said that Mr Huang and the Accused had both been at his house for about 10 minutes before he went to bed.
Mr Weng told police that he woke up after midday the next day, and both Mr Huang and the Accused were gone. He said that he never saw Mr Huang again. He said he saw a lot of empty beer bottles on the floor the next day. He also told police that, when he woke up, he could smell cleaning products in his bathroom.
Mr Weng told police that the Accused later told him that Mr Huang had threatened him. He said that the Accused also told him that two persons had come to the premises that evening.
Mr Weng told police that about two-to-three weeks prior to 24 September 2014, the Accused had come to his house and told him that he (the Accused) was in trouble. Mr Weng said that the Accused returned two days later and asked if he could lend the Accused $5,000.00. He said the Accused told him that he needed some money, but did not say what the money was for. Mr Weng told the Accused that he did not have money to give him. Mr Weng asked the Accused where Mr Huang was and the Accused replied, “[Mr Huang] left with his friends on that night”. He said that the Accused had become really angry and had told him not to talk about it anymore.
Mr Weng identified a doona cover in a photograph (the doona cover found on Mr Huang’s body) and said that he had purchased and used the doona cover on one of the beds in his house.
Police have not located the weapon used to inflict the fatal injuries to Mr Huang.
Issues in the Trial of the Accused
The Defence Response to the Notice of Prosecution Case furnished on 27 October 2016, for the purpose of s.143 Criminal Procedure Act 1986, stated that the Accused’s partial defence to the charge of murder was substantial impairment by abnormality of mind under s.23A Crimes Act 1900, but that the Accused may also rely on the defence of mental illness.
The Defence Response stated that, other than the issue of the Accused’s mental state at the time he killed Mr Huang, the Accused did not take issue with the evidence which the prosecution intended to adduce at the trial. The Defence Response stated that the Accused will consent to the tender of witness statements from most proposed prosecution witnesses, and/or a summary of evidence that the prosecutor proposes to adduce at the trial.
By separate Notice dated 27 October 2016, the Accused indicated an intention to adduce evidence of substantial mental impairment, for the purpose of s.151(1) Criminal Procedure Act 1986. The Notice stated that the Accused was to rely upon the evidence of two forensic psychiatrists, Dr Stephen Allnutt and Dr Olav Nielssen. The Notice summarised the evidence expected to be given by Dr Allnutt and Dr Nielssen in the following way:
“In short, after reviewing parts of the prosecution brief of evidence and after examining the defendant both psychiatrists are of the opinion that at the time the defendant killed Ting Huang the defendant was suffering from a drug induced psychosis producing an abnormality of mind, namely a delusional or paranoid belief that Ting Huang posed a danger to the defendant’s wife and children, and causing the defendant a loss of capacity for logical thinking ad affecting his ability to judge right from wrong at the time of the killing.”
The Court was informed that Mr Weng is still to be called as a witness in the trial, given his contact with both the Accused and Mr Huang and the fact that his Guildford premises appear to have been a likely crime scene. Both the Crown and Senior Counsel for the Accused indicated that Mr Weng’s oral evidence was necessary in the trial.
The Competence Issue Concerning Mr Weng
When the proceedings were mentioned before me on 31 October 2016, the Court was informed by the Crown that an issue concerning Mr Weng’s competence to give evidence had arisen. Accordingly, arrangements were made for the pretrial hearing of the competency issue to proceed on 11 November 2016.
The competency issue concerning Mr Weng arose in the following way. Mr Weng had been committed to stand trial in the District Court on drug supply and other charges. In advance of the trial, Mr Weng’s solicitor requested Dr Richard Furst, forensic psychiatrist, to assess Mr Weng with respect to a number of mental health issues, including his fitness to be tried. In a report dated 29 August 2016, Dr Furst expressed the opinion that Mr Weng was not fit to be tried (pages 7-8). The Crown requested Dr Jonathon Adams, forensic psychiatrist, to assess Mr Weng. In a report dated 22 October 2016, Dr Adams also expressed the opinion that Mr Weng was unfit to be tried (pages 12-13).
On 3 November 2016, his Honour Judge Sides QC found Mr Weng unfit to be tried on the matters before the District Court. In light of that finding, Mr Weng is subject to ss.14 and 16 Mental Health (Forensic Provisions) Act 1990 with respect to the District Court matters.
Although the reports of Dr Furst and Dr Adams addressed the issue of fitness to be tried and not the separate question of competence to give evidence, it was appropriate for the Crown to raise this issue for pretrial consideration in these proceedings.
Both Dr Furst and Dr Adams gave evidence at the pretrial hearing concerning Mr Weng’s competence to give evidence. Each of them examined Mr Weng on the morning of 11 November 2016 with the competency issue in mind, having previously examined him in August and October 2016 for the purpose of their reports concerning fitness.
On 11 November 2016, I granted leave for Mr Bolster, of counsel, who appeared with Ms Bridgett, to appear to protect the interests of Mr Weng. In the unusual circumstances of this case, where Mr Weng had been found unfit to be tried in separate proceedings, it was entirely appropriate for the Court to be assisted in this way. I record my gratitude to Mr Bolster and Ms Bridgett, who appeared pro bono to assist the Court in this important respect.
Relevant Statutory Provisions and Legal Principles
Sections 12 and 13 Evidence Act 1995 provide as follows:
“12 Competence and compellability
Except as otherwise provided by this Act:
(a) every person is competent to give evidence, and
(b) a person who is competent to give evidence about a fact is compellable to give that evidence.
13 Competence: lack of capacity
(1) A person is not competent to give evidence about a fact if, for any reason (including a mental, intellectual or physical disability):
(a) the person does not have the capacity to understand a question about the fact, or
(b) the person does not have the capacity to give an answer that can be understood to a question about the fact,
and that incapacity cannot be overcome.
Note. See sections 30 and 31 for examples of assistance that may be provided to enable witnesses to overcome disabilities.
(2) A person who, because of subsection (1), is not competent to give evidence about a fact may be competent to give evidence about other facts.
(3) A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
(4) A person who is not competent to give sworn evidence about a fact may, subject to subsection (5), be competent to give unsworn evidence about the fact.
(5) A person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person:
(a) that it is important to tell the truth, and
(b) that he or she may be asked questions that he or she does not know, or cannot remember, the answer to, and that he or she should tell the court if this occurs, and
(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.
(6) It is presumed, unless the contrary is proved, that a person is not incompetent because of this section.
(7) Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.
(8) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge based on the person’s training, study or experience.”
The logical starting point of s.13 is the presumption of competence established by ss.12 and 13(6): RJ v R [2010] NSWCCA 263; 208 A Crim R 174 at 179-180 [16].
Neither the defence nor the prosecution carries an onus. It is for the Court to determine whether it is satisfied that there is proof that a person (who is otherwise presumed to be competent) is incompetent to give evidence. That question must be determined on the balance of probabilities: s.142(1) Evidence Act 1995; RJ v R at 181 [24].
Where an issue arises as to the competence of a witness to give evidence, the Court undertakes an inquiry of a less formal nature than otherwise occurs in the accusatorial setting of a criminal trial. So much is made clear by s.13(8) Evidence Act 1995 which provides that the Court may inform itself as it thinks fit, including the obtaining of information as referred to in that subsection.
Although issues as to competence of witnesses under s.13 arise usually in the context of child witnesses, it is clear that the provision is not confined to that class of witness. Section 13 is capable of operating with respect to persons who fall within the terms of s.13(1), irrespective of age.
In SH v R [2012] NSWCCA 79; 83 NSWLR 258, Basten JA (Blanch and Hall JJ agreeing) said at 264-265 [23]:
“Section 13, it should be noted, is not directly concerned with the interests of a witness of limited competence, such as a young child: it is concerned with the public interest of obtaining evidence relevant to the determination of a criminal charge. There are other provisions which protect the interests of a child witness in sexual offences such as the present, including those which provide for the recording of evidence and the absence of the child from the court room to a different place linked by closed circuit television. It is not correct to treat the operation of s 13 as involving a balance between the interests of the child witness and those of the accused: cf BBR at [38].”
In SH v R, at 260-261 [5], Basten JA said with respect to s.13:
“5 The Evidence Act requires that every witness must either take an oath or make an affirmation, except a person who gives unsworn evidence under s 13: s 21. The primary test of competence, namely the capacity to understand a question and communicate a comprehensible answer, may be generic in respect of a particular witness or may relate to particular facts: sub-ss (1) and (2). Even what appears to be a generic exclusion, such as inadequate competence in English requiring the intervention of an interpreter, may operate differentially in relation to questions about particular facts: s 30. Deaf and mute witnesses are treated as having a generic incapacity: s 31. However, not all competent witnesses are competent to give sworn evidence; that depends upon having the capacity to understand that one is obliged to give truthful evidence: sub-s (3).”
Recently, the High Court of Australia has considered the Australian Capital Territory’s version of s.13, which is in similar terms to the New South Wales provision, in the context of a competence issue concerning a child. In R v GW [2016] HCA 6; 90 ALJR 407, the Court (French CJ, Bell, Gageler, Keane and Nettle JJ) said at 410-411 [13]-[14] (footnotes omitted):
“13. It will be observed that competence to give evidence about a fact is confined to the person's capacity to understand a question about the fact and to give an intelligible answer to the question. It is only competence to give sworn evidence that requires the person to have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.
14. The s 13(6) presumption applies to both competence to give evidence and competence to give sworn evidence. In either case, the presumption will be displaced where the court is satisfied on the balance of probabilities of the contrary. Where the presumption of competence to give sworn evidence is displaced, a person who is competent to give evidence about a fact may give unsworn evidence about the fact provided that the court has told the person the things set out in s 13(5).”
The Court said in R v GW at 412-413 [26] that the word “obligation” in s.13(3) “is to be understood in its ordinary, grammatical meaning as the condition of being morally or legally bound” to give truthful evidence.
Later in R v GW, the Court said at 415-416 [43] (footnotes omitted):
“Section 12 provides that every person is competent to give evidence subject to any other provision of the Evidence Act. Section 13 makes other provision in sub-ss (1) and (2). Section 13 distinguishes competence to give sworn evidence from competence to give unsworn evidence (sub-ss (3) and (4)). Competence to give sworn evidence is presumed, subject to the contrary being proved (sub-s (6)). This presumption is the only respect in which the Evidence Act may be said to give ‘primacy’ to sworn evidence; the evidence of a competent witness will be given sworn unless the presumption is displaced. Where the presumption applies, s 21(1) requires a witness in a proceeding to take an oath or make an affirmation before giving evidence. The form of the oath and the affirmation are set out in Sched 1 to the Evidence Act. In each case, the person undertakes that the evidence to be given ‘will be the truth, the whole truth and nothing but the truth’. An oath requires the person to give that undertaking by swearing to do so by Almighty God or the god recognised by the person's religion. An affirmation requires the person to give that undertaking by a solemn and sincere declaration to do so. Section 21(5) provides that an affirmation has the same effect for all purposes as an oath. Where the presumption of competence to give sworn evidence is displaced, s 21(2) relieves the witness of the requirement to take an oath or make an affirmation. In either case, the evidence of the witness is before the court. The assessment of the reliability of the evidence is for the trier of fact. Sections 12, 13(3), (4) and (6) and 21 do not support a conclusion that the Evidence Act accords primacy to sworn evidence as a bolster to the reliability of evidence.”
In the course of a decision concerning the competence of an adult party to give evidence in civil proceedings, Stevenson J said in The Recyclers (NSW) Pty Ltd v Ayoub [2016] NSWSC 144 at [16]-[24]:
“16 So far as competency to give evidence is concerned, the test is thus whether a person, asked a question about a fact, has the capacity to understand that question, and to give a comprehensible (that is one that ‘can be understood’) answer to that question.
17 The nature of the answer given to a question may cast light on whether the person understood the question. But an unresponsive answer will not necessarily bespeak a want of understanding of the question.
18 A response to a question such as ‘I don’t know’ or ‘I cannot remember’ will not necessarily indicate a want of understanding; indeed, it may indicate the opposite: that the person understood the question but was not able to provide an answer.
19 As Hughes LJ said in Director of Public Prosecutions v The Queen [2007] EWHC 1842 (at [21] – [22]):
‘Recollection is quite different from competence. Of course, absence of recollection may, in some cases, co-exist with absence of competence, but they do not necessarily run together. Persons who have no recollection of a matter may be perfectly competent.’
20 The nature of the answer will of course cast light on whether the person has the capacity to give an answer that ‘can be understood’. An answer to a question about a fact may be so confused or irrational that it leads to the conclusion that, whether or not the person understood the question, the person was not able to provide a comprehensible answer.
21 If a party is competent to give evidence about a fact, the further question may arise as to whether that person is competent to give sworn evidence about that fact. By reason of s 13(3) of the Act, a person is not so competent if the person lacks capacity to understand the person’s obligation to give truthful evidence.
22 In that event (assuming the person is competent for the purpose of s 13(1) of the Act), by reason of s 13(5) of the Act, the person is competent to give sworn evidence if the Court tells the person the three matters set out in s 13(5). Those matters are, to summarise, that it is important to tell the truth, that the person should tell the court if he or she does not know or cannot remember the answer to a question, and the person should not feel under pressure to accept propositions put (typically in cross-examination) with which the person disagrees.
23 It is common ground in this case that if Mr Ayoub is competent to give evidence for the purpose of s 13(1) of the Act, he is also competent to give sworn evidence for the purpose of s 13(3) of the Act.
24 No party bears the onus of proving competence or lack of competence However, by reason of s 13(6) of the Evidence Act it is presumed, unless the contrary is proved, that a person is not incompetent. It is for the court to determine whether it is satisfied that there is proof that the person is incompetent. The question is to be decided on the balance of probabilities. (see RJ v R at [24] and RA v R [2007] NSWCCA 251; 175 A Crim R 221 at [11]).”
The Competency of Mr Weng
Dr Furst and Dr Adams had addressed Mr Weng’s fitness to be tried in their reports for the District Court proceedings. The reports addressed the fitness criteria in R v Presser (1958) VR 45 and Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230. Those criteria were undoubtedly applied by his Honour Judge Sides QC on 3 November 2016 in finding Mr Weng unfit to be tried on his District Court matters.
A separate and different issue was to be considered at the competency inquiry. This involved application of ss.12 and 13 Evidence Act 1995 in accordance with the principles set out in decisions referred to at [37] to [46] of this judgment.
The evidence of Dr Furst and Dr Adams provided direct assistance to the Court in its assessment of Mr Weng’s competence. Each psychiatrist had conversed with Mr Weng for the purpose of preparing a report on fitness, and again on the morning of 11 November 2016. The evidence of Dr Furst and Dr Adams confirmed Mr Weng’s competence to give sworn evidence.
I was satisfied that Mr Weng had a capacity to understand all questions relevant to this trial, and to reply to them in a responsive fashion. Although Mr Weng had mental health issues (which were being treated), they did not operate adversely upon his competence to give evidence. The presumption of competence in the case of Mr Weng remained undisturbed. I note that there was no submission to the contrary from the Crown, Senior Counsel for the Accused or from Mr Bolster.
It was for these reasons that I found, on 11 November 2016, that Mr Weng was competent to give sworn evidence at the trial of the Accused.
By way of postscript, I note that Mr Weng gave evidence at the trial on 15 November 2016. He demonstrated a consistent and clear capacity to understand questions and to reply to them in a responsive fashion. His evidence confirmed my earlier conclusion that he was competent to give sworn evidence at the Accused’s trial.
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