R v Sinai (No 3)

[2021] NSWSC 778

Supreme Court

New South Wales

Medium Neutral Citation:

R v Sinai (No 3) [2021] NSWSC 778

Hearing dates:

30 April, 7-8 June 2021

Decision date:

08 June 2021

Jurisdiction:

Common Law - Criminal

Before:

R A Hulme J

Decision:

The hearsay evidence from Thang Duc Nguyen which is relevant to motive is admissible.

The evidence of police having found $126,000 in three cars between Gundagai and Tarcutta is admissible.

Evidence of the covertly recorded conversation on 3 August 2018 is admissible.

Evidence of the availability of encrypted BlackBerry phone is inadmissible.

Catchwords:

EVIDENCE – hearsay evidence – overheard phone call – evidence relevant to motive – representation made in circumstances which make it highly probable that the representation is reliable –admissible

EVIDENCE – $126,000 found in cars associated with the accused two days after the murder – relevant to motive – association with drug money argued to be unfairly prejudicial – admissible

EVIDENCE – mandatory exclusion – evidence of encrypted BlackBerry phones being available to accused – relevant to explain absence of evidence of communication– minimal probative value – implication of accused’s involvement in drug trafficking – probative value outweighed by unfair prejudice – inadmissible

Legislation Cited:

Evidence Act 1995 (NSW), ss 65(2), 136

Cases Cited:

Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; [1987] HCA 58

Category:

Procedural rulings

Parties:

Regina
Abraham Sinai

Representation:

Counsel:
Mr S Hughes (Crown)
Mr M Tedeschi QC (Accused)

Solicitors:
Solicitor for Public Prosecutions
Kings Law Group

File Number(s):

2019/169513

Judgment

1. HIS HONOUR: Objection was taken to the admissibility of various items of evidence in the prosecution case. Some of them were resolved one way or another but I have had to rule upon some. The rulings have been announced but it remains to provide reasons.

Motive / evidence of Thang Duc Nguyen

2. The Crown contends that a possible motive for the murder was as follows. The deceased, Mr Ho Ledinh, and a client, Tri Van Nguyen (“Tri”), were in dispute with Andrew Khai Duong (“Khai”) in relation to the latter owing a large sum of money. According to the Crown Case Statement (CCS) it was approximately $1 million. It would appear from the CCS that the debt, and animosity in relation to it, had been an issue for some years.

3. The Crown does not propose to call all of the evidence in relation to the history of this dispute. It does, however, propose to call Thang Duc Nguyen (TD Nguyen) to give evidence of a telephone conversation involving Ho Ledinh he overheard one day at the Happy Cup café. He heard an animated Mr Ledinh swearing a lot and referring to Tri and Khai. After Mr Ledinh terminated the call, TD Nguyen asked him about it. Mr Ledinh said, “Fuck Khai owes us money but he is not paying”. He went on to say that he did not know where Khai lived. TD Nguyen told him that he knew where Khai lived and he agreed to assist. It was arranged that he would return to the café and take Tri to show him where Khai lived.

4. The Crown proposed eliciting this evidence pursuant to s 65(2)(b) and (c) of the Evidence Act 1995 (NSW). Ms Davenport SC, counsel for the accused at the time, objected. Submissions were made on 30 April 2021. On 3 May 2021 I confirmed a previous communication to the parties by my associate that I had ruled that the evidence was admissible with my reasons to be given later.

5. I was of the view that the evidence incorporated explicit or implicit representations as to the following matters:

A. Mr Ledinh knew Khai and he also knew Tri.

B. There was animosity or conflict between Mr Ledinh and Tri on the one hand and Khai on the other.

C. This animosity or conflict was because of money believed by Mr Ledinh to be owing to them by Khai.

6. Although the events with which the evidence was directly concerned occurred at least 6 months earlier (because Tri went to gaol on 2 August 2017), there was nothing to indicate that the animosity or conflict had resolved by 23 January 2018.

7. A relevant fact in issue in the proceeding is whether the accused had any knowledge of Mr Ledinh.

8. I was satisfied that acceptance of the subject evidence by the jury could affect the probability of Mr Sinai knowing Mr Ledinh because there was other evidence that the accused was an “enforcer” for Khai (whether described by that term, or described in a way that was consistent with that term) and that Khai had a dispute, at least in 2017, involving Mr Ledinh (and Tri).

9. As to the requirement in s 65(2)(b) that the previous representation was “made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that it is a fabrication”, I was satisfied that Mr Ledinh was talking about something that was current at the time he said what TD Nguyen claimed he said. Further, he was apparently overheard speaking to an unknown person on the phone. It is not known whether there was any motive for him to be truthful or untruthful to the unknown person, but he repeated the gist of the asserted fact to TD Nguyen and then made arrangements in the immediate aftermath to locate Khai’s home which are both consistent with the asserted fact.

10. As to asserted fact A., there is no apparent reason why Mr Ledinh would falsely claim knowledge of, and association with, Khai.

11. As to asserted fact B., there is no apparent reason why Mr Ledinh would falsely claim there was animosity or conflict with a person when there was not. It is rendered less likely to be a fabrication (s 65(2)(b)), and the representation is highly probably reliable, given Mr Ledinh immediately took steps to enlist TD Nguyen in helping Tri to identify the home address of Khai.

12. As to asserted fact C., again there is no apparent reason why Mr Ledinh would fabricate a proposition that he believed Khai owed money. His agitated attitude on the phone call with the unknown person supports the proposition. Additionally, the proposition is unlikely to be fabricated because Mr Ledinh confirmed it to TD Nguyen immediately after. It is highly probable that the proposition is reliable for the same reasons.

The issue re-agitated

13. Mr Tedeschi QC assumed carriage of the brief to represent the accused after the withdrawal of Ms Davenport SC. This followed several days of evidence in the first trial, including the evidence given by TD Nguyen. The evidence was broadly in accord with his statement that was the basis of the earlier consideration of admissibility.

14. In cross-examination by Ms Davenport SC, there was nothing put to TD Nguyen by way of disputing what he had said. In fact, she adopted an approach of having him confirm from his police statement the essence of his evidence about the overheard telephone conversation between Mr Ledinh and the unknown person and the subsequent conversation between Mr Ledinh and TD Nguyen, as well as the fact that TD Nguyen returned to the café the following day and took Tri to where he thought Khai lived. It might be assumed from this, at least, that there was no real dispute about the evidence of TD Nguyen. In fact, it might be thought from the cross-examination that it served the purpose of the defence to have the evidence receive some emphasis.

15. Mr Tedeschi made a submission that the Crown’s case on motive was “conjecture upon a hypothesis upon speculation, without there being sufficient evidence for it to go to the jury at all”. Hence, he submitted that the evidence of TD Nguyen which was only relevant to the assertion of motive should be excluded. The evidence was characterised as “vague and imprecise and, quite clearly is hearsay” such that it should be excluded.

16. By way of examples, references were made to some of the answers given by TD Nguyen in the first trial in which he said he could not remember, or replied in the negative, concerning some specific things he was asked about. This was not an accurate reflection of the evidence which really should be read as a whole. It ignored the fact that the evidence was given through an interpreter, rendering it appropriate for a jury to adopt a sensitive approach in assessing it. It also ignored the fact that the evidence was, in effect, confirmed in significant respects by senior counsel then appearing for the accused having TD Nguyen agree that he had said consistent things in his police statement.

17. There were other discrete submissions made in relation to evidence. One was that the evidence of TD Nguyen of what Mr Ledinh said could be limited pursuant to s 136 of the Evidence Act. However, it was accepted immediately that this would render the evidence completely irrelevant to any fact in issue so there was no point in doing so. Another submission was that it was not known who Mr Ledinh was talking to in the conversation overheard by TD Nguyen. That does not detract from the admissibility of the evidence having regard to what Mr Ledinh subsequently said directly to TD Nguyen. A submission that the evidence lost probative force because of the time that elapsed between the event and when TD Nguyen made his police statement is really a matter for the jury to evaluate rather than for me to assess at the admissibility stage. Another submission was that it was not clear whether the debt was owed by Khai to Tri or to Mr Ledinh, but according to TD Nguyen’s statement, and confirmed in his evidence, Mr Ledinh said “Khai owes us money” (T48.43).

18. As to Mr Tedeschi’s primary objection that the Crown case on motive was untenable it must be borne in mind that this is a ruling on the admissibility of evidence. In relation to the evidence in question, I specifically said in ruling it was admissible at the first trial that the ruling was “not dependent upon whether the evidence establishes a motive for the killing of Mr Ledinh” (Tcpt 3.5.21 at p1.30). By motive I had in mind the financial matter, the debt allegedly owing by Khai which was seemingly the cause of substantial agitation with Mr Ledinh.

19. I indicated at the conclusion of submissions when the issue was re-agitated that nothing had been put that had persuaded me to alter my earlier ruling. I indicated I was particularly mindful of the evidence given in cross-examination that in large part served to clarify any uncertainty or lack of quality as to the evidence given earlier. Set out above are the more complete reasons for holding the evidence is admissible.

$126,000 found in three cars heading towards Victoria two days after the murder

20. An objection was taken to the Crown adducing evidence of police finding $126,000 in total in three cars that were stopped between Gundagai and Tarcutta as they travelled from Sydney to Melbourne on 25 January 2018. The evidence was summarised in the CCS and a document which became Exhibit A on the voir dire.

21. The accused and three of his children were with Mika Ah Keni, uncle of the accused’s wife, in a car in which police found $6000. The accused claimed it was money given to his children by their grandparents.

22. Relatives of the accused and Mr Ah Keni were in the other cars. Police found $50,000 in a bag under the driver’s seat of a car containing the accused’s brother, Mataio Elise, and his wife, Jane Lololea. They denied knowledge of the money. $70,000 was found in a bag in the boot of a car driven by the accused’s brother Raymond Elise, with three other relatives of the accused as passengers.

23. The accused can be heard saying in a covertly recorded conversation on 14 July 2018 that “I got pulled up on the way to Melbourne and they took a hundred and twenty-six thousand off me in cash. So Ray and Ake got caught with them”. (Exh B on the voir dire)

24. The written submissions in support of the objection were hampered by a misquotation of the evidence as being that $146,000 was mentioned by the accused in the conversation of 14 July 2018, thus erroneously contending that it did not correlate with the money found in the cars.

25. Otherwise, it was submitted that it was speculation and conjecture that the money was payment for the murder. There was no evidence of the accused being paid, or of any discussion about money, or of when the accused received the money. However, the lack of direct evidence does not deny the availability of inferential reasoning. Here the Crown is relying upon the close temporal relationship between the murder on 23 January 2018 and the accused being in possession of a large sum of money. The Crown proposes to submit that if the question occurred to the jury as to “What was in it for the accused?” the answer might be “a substantial cash windfall”.

26. Mr Tedeschi QC also submitted that the amount was “completely out of proportion to his alleged participation as specified by the Crown in picking up Mr Kelekolio in Bankstown”. For one thing there is no evidence as to what would be in proportion to what the accused did and for another it is not the Crown case as I understand it that the only involvement of the accused was to pick up Mr Kelekolio immediately after he had shot the deceased. If the murder was connected to a significant debt owed by Khai to the deceased and Tri, it might not appear to the jury that $126,000 would be out of keeping as a payment for someone who was instrumental in organising the murder. (The Crown does not appear to be contending that the money was to be split by the accused between himself and others who had involvement such as Mr Kelekolio.)

27. It was contended that the evidence was unfairly prejudicial to the accused because it would require him to advance as an explanation for the money that he was involved in drug dealing. Apparently, Ms Davenport SC was intending at the first trial to be candid with the jury about the money being associated with drug dealing. Mr Tedeschi QC indicated he was not prepared to take that tack. That submission collides with the contention that the accused was only in possession of the $6000 that was found in the car he was in, not the $120,000 that was found in the other two cars.

28. I allowed this evidence. It supports a possible inference that the money was payment for the murder being carried out two days earlier. There are arguments available to the contrary but that is often the case with circumstantial evidence. The arguments advanced in submissions are in large part matters for the evaluation of the jury.

Covertly recorded conversation on 3 August 2018

29. On 3 August 2018, the accused was covertly recorded in conversation with Tolo Faitua. The latter referred to watching something about Hawi and how “the car they got away on” was put on a tow-truck and then somehow linked to six other cars. The accused interjected, saying “They’re onto it man. ‘Cause it’s all on camera” and Faitua replied, “All CCTV caught everything”. The significant part of the conversation is that the accused then said:

“That’s why I sticked to the van. You don’t know who’s (IND) …”

30. The Crown relies on this by relating it to him being in the Nissan Elgrand that was driven around the Bankstown CBD around the time of the murder of Mr Ledinh. (The judgment concerning the compellability of Ms Analosa Ah Keni provides further information about the significance of this subject.)

31. The objection to the admissibility of this recorded conversation was based upon a number of matters set out in the written submissions.

32. The recording was played on the voir dire. With the assistance of a hearing loop I found myself able to hear the critical words. They are not very clear, and I indicated for that reason, although subject to what evidence the Crown might have as to the preparation of the transcript, the jury should probably be confined to the recording itself (T41-2). (By way of evidence I had in mind Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; [1987] HCA 58.)

33. (After giving this indication, Mr Tedeschi QC indicated he did not object to the audio recording being admitted. The dispute was confined to what the Crown suggests can be heard in it. During the course of the trial when the tender of the recording was imminent, the Crown led evidence on the voir dire of an ad hoc expert, Detective Senior Constable Holly Brennan, as to the correctness of the transcript which she prepared after replaying the recording many times over. Mr Tedeschi then conceded that the transcript was admissible (T209).)

Encrypted BlackBerry phones

34. The Crown proposed to adduce evidence of the accused acquiring and having available BlackBerry phones enabling him to engage in encrypted communications. The evidence was led at the first trial without objection, Ms Davenport SC taking the view it was part of the accoutrements of those involved in drug supply activity, something that would be candidly conceded by the accused according to the then defence case theory. Mr Tedeschi QC proposes to advance a defence case that avoids any suggestion of the accused being involved in such activity.

35. The purpose of the Crown leading this evidence was to provide an explanation to the jury for why there was no evidence of communications between the accused and Mr Kelekolio on the day of the murder. In short, there was a possibility that the pair communicated by way of encrypted BlackBerry devices. Mr Tedeschi QC objected because (a) it would suggest to the jury there was in fact communications whereas the evidence is silent, or neutral, in this respect, and (b) it is prejudicial in implying the accused’s involvement in the criminal activity of drug trafficking.

36. I heard submissions in relation to this issue on 8 June 2021 and announced a ruling on 10 June 2021 that the evidence was inadmissible. I gave short reasons then but indicated I would give more expansive reasons in due course. On reflection, the reasons I gave at the time will suffice. They were to the following effect.

37. It is implicit in the Crown case that there was communication between the accused and Mr Kelekolio as to the plan to shoot Mr Ledinh and in relation to Mr Kelekolio’s successful flight from the scene of the murder to East Terrace where the accused was waiting to pick him up and take him away. Some of the planning for this was probably the subject of communications prior to the day of the shooting but it would seem likely there must also have been communications on the day as well.

38. There is no evidence of such communications but that does not mean there were not any. There are various ways in which the pair could have communicated in a way the authorities were unable to detect. The Crown case includes that they met briefly, about 20 minutes prior to the shooting, about 500 metres away from the cafe, but there could also have been communications by telephone in a number of ways that were not detected by police.

39. The use of encrypted BlackBerry phones is only one of the possibilities. The evidence of the accused acquiring and having access to BlackBerry phones is therefore of minimal probative value. It is outweighed by the danger of unfair prejudice in the two respects identified in the submissions of Mr Tedeschi. Accordingly, the evidence must be excluded.

40. I also indicated at the time of announcing this ruling that if there arises any danger of the jury thinking the lack of evidence of contact may support an inference that there was no contact, it would be appropriate for it to be pointed out to the jury that such an inference was not available. The jury could be told that the lack of evidence of contact did not mean there was no contact. It simply meant that there may or may not have been contact, but that the evidence is silent on the issue. In other words, there is simply no evidence either way.

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Decision last updated: 29 June 2021