R v Truong Hong Phuc & Truong Thi Van
[2000] VSC 241
•16 June 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1449 of 1999
| THE QUEEN |
| v. |
| TRUONG HONG PHUC AND TRUONG THI VAN |
---
JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 1 FEBRUARY 2000 | |
DATE REASONS HANDED DOWN: | 16 JUNE 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 241 | |
---
CATCHWORDS: Admissibility of "Ransom" Note – R. v. Ratten [1972] A.C. 378 – Pollitt v. The Queen (1992) 174 C.L.R. 558 – Ransom note admissible but in a restricted sense so as to avoid unfairness to the accused.
---
APPEARANCES: | Counsel | Solicitors |
For the Prosecution | Mr. G. Hicks Mr. A. Moore Ms K. Judd | Office of Public Prosecutions |
| For the Accused Phuc | Mr. P. Morrissey | Clarebrough Pica |
| For the Accused Van | Mr. S. Langslow | Stary George Myall |
HIS HONOUR:
Shortly after the commencement of the trial, Mr. Morrissey of counsel, who appears on behalf of the accused Truong Hong Phuc, objected to the proposed introduction by the prosecution of evidence that a note, referred to in discussion as "the ransom note", was found in the premises at 1 Regal Court, Glen Waverley from which the deceased, Le Anh Tuan, was abducted on 29 April 1996.
There was evidence that the note, which has been translated from the Vietnamese language into English, reads as follows:
"You call mother to tell her that I have gone with the guys from Brother Phuc's company the younger brother to Mrs. Doanh those guys said to give mother 72 hours to pay the money."
It was, according to his mother Ha Thi Que Mai, in the handwriting of the deceased, and, according to his female companion Doan Thi Thu Thao, located by her on a table in the dining area of the house in the early hours of the following morning.
The central propositions advanced by the prosecution in support of the admissibility of the note, and the evidentiary uses to which it could be properly put, are set out in a document headed "Admissibility of Ransom Note" which is annexed to and forms part of this ruling. It is therefore not necessary to set them out again within the body of it.
Mr. Morrissey, in response, argued that there is simply not enough known of the circumstances under which the note was written for its possible relevance to any issue likely to arise in the trial to be determined. He argued, as I understand his contentions, that no proper inference that it was written under compulsion could be drawn; there was nothing to indicate that it had been dictated or that its contents represented information conveyed by the kidnappers to the victim; that it could not form part of the res gestae and that its admission would contravene the rule against hearsay; and that, in any event, the expression "the guys from Brother Phuc's company" was dangerously vague and capable of attracting severe prejudice against his client. He further argued that the evidence of the responses of the accused, Truong Hong Phuc, in subsequent recorded telephone conversations with Mrs. Ha cannot render the note possibly admissible as they were incapable of being reasonably interpreted as indicating knowledge of the existence of the note or its contents.
There was, unsurprisingly, no evidence of the precise circumstances under which the note was written. Nevertheless, when regard is had to its location, contents, the time at which it was found, evidence of two eye witnesses who observed the deceased being chased and then forced into the boot of a motor vehicle and the background evidence that his mother had received threats of dire consequences if money demanded from her was not forthcoming, I consider that it would be open to a jury to infer that it was written under some form of compulsion and constituted a ransom demand. It appears to me, for example, to be relatively unlikely that the abductors were unaware that it was written or that the deceased would have personally fixed a period of 72 hours for payment and the same view could, I think, be properly taken by members of the jury.
The leaving of a note, containing what is effectively a demand for money, in circumstances that, according to the prosecution assertion, amount to kidnapping for ransom would clearly constitute a fact relevant to the facts involved in that assertion. This would be the case whether the note was prepared by some unidentified perpetrator or the victim himself. Further the writing of the note was not only a contemporaneous act performed by a person intimately involved in what was happening but it was, in my view, open to the jury to conclude that it also formed an integral part of the activity which was then taking place. There was nothing in the note or the circumstances that raised in my assessment, the possibility of distortion or concoction. Accordingly, I considered that the prosecution had satisfied the tests laid down initially by the Privy Council in R. v. Ratten[1], and later by the High Court in a number of later cases, the effect of which was set out by Brennan, J. in Pollitt v. The Queen[2] as follows:
[1][1972] A.C. 378
[2](1992) 174 C.L.R. 558
"In Ratten, Lord Wilberforce recognized the admissibility of hearsay in statements admitted under the res gestae exception when he rejected as a test of admissibility 'the uncertain one whether the making of the statement was in some sense part of the event or transaction' [1972] AC at p.389. After review of authorities (including the Australian cases), his Lordship said (ibid at p.391):
'These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.'
Where the statement was made after the event (presumably his Lordship meant at a time approximately but not exactly contemporaneous with the event) [1972] AC at p.389:
'… it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded.'
In Vocisano v. Vocisano (1974) 130 CLR 267 at p.27. Barwick C.J., speaking with the concurrence of the other members of the Court, reserved final consideration of the effect to be given to Ratten. His Honour added:
"A reason for the doctrine that statements made as part of the res are admissible as evidence is that, because of their contemporaneity and the circumstances of their making, they were unlikely to be concocted and therefore might well be reliable: but that does not mean that statements made on an occasion when they are unlikely to be concocted are for that reason admissible. It is the contemporaneous involvement of the speaker at the time the statement is made with the occurrence which is identified as the res which founds admissibility.'
Once it is accepted that the res gestae principle represents an exception to the hearsay rule and admits statements which may be used to prove the truth of the facts asserted therein, it is understandable that admissibility should be made to depend, inter alia, on the judge's satisfaction that the conditions in which the statement was made were such as 'to exclude possibility of concoction or distortion'. But, as Barwick C.J. pointed out, non constat that any hearsay statement is admissible if the judge is so satisfied. The statement must be made in conditions 'of approximate [if] not exact contemporaneity' and the impossibility of concoction or distortion must arise from the 'spontaneity or involvement in the event' by the maker of the statement. In Walton (1989) 166 CLR at p.304 these propositions were stated in the joint judgment in these terms:
'An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical & Fertilizer Co. Ltd. v. Carlyle. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten ([1972] AC AT PP.389-390); Reg. v. Andrews ([1987] ac 281 AT PP.300-301); see also Adelaide Chemical & Fertilizer Co. Ltd. v. Carlyle ((1940) 64 CLR at p.531). Of course, the discussion in Ratten and Andrews was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v. Vocisano ((1974) 130 CLR at p.273).'
…
In my respectful opinion, it is not desirable to subsume the res gestae principle under a general principle which would admit hearsay evidence when a trial judge believes that concoction was extremely unlikely because the hearsay statement was uttered with apparent spontaneity. The conditions stated in Ratten and in the joint judgment in Walton and substantially confirmed in Vocisano should continue to govern the admissibility of hearsay evidence under the res gestae exception. Deane J. in Walton also favoured a relaxation of the common law rule 'where the circumstances are such that its inflexible application would confound justice or common sense or produce the consequence that the law was unattuned to the circumstances of the society which it exists to serve' (ibid at p.308). His Honour thought but did not decide that, at least in some circumstances, statements made in the course of a telephone conversation by one party might be admissible to establish the identity of the other. The introduction of a telephone call exception to the hearsay rule has not been pursued thus far. For the purposes of this case, it is sufficient to observe that Walton stands as a recent decision of this Court affirming, at least by a majority, the conditions of admissibility of res gestae evidence stated by Lord Wilberforce in Ratten, namely, approximate if not exact contemporaneity concoction arising from the spontaneity of the statement or the involvement of the maker in the events of the res gestae." (pp.580-583)
In my view the note was admissible and could be used as evidence of its contents. However, I was concerned about the assertion in it that the "guys" were "from Brother Phuc's company". I will return to this aspect.
On 2 May 1996, in a recorded telephone conversation specific reference was made by the mother of the deceased to the time period of 72 hours for payment. It would, I considered, be open to the jury to infer, if they were satisfied that the person to whom she spoke was the accused, from his response that this was not news to him. Evidence that the accused expressed disinterest in a ransom demand which implicated him and appeared to be aware of the period fixed by the kidnappers in a note left at the scene would, I considered, be relevant to the determination by the jury of the question of his possible involvement at some level. The note therefore, in my view, possessed probative value and was admissible on this basis also.
Recognising that the prosecution contention with respect to the evidentiary use of the words "the guys from Brother Phuc's company" possessed some force, I nevertheless considered that the expression was capable of possibly misleading the jury and impacting upon the fair trial of the accused. I was mindful in this context that from the very commencement of the trial, the prosecution had argued not that this accused was simply one of those involved in the matter but that he was the person ultimately responsible as the organiser, instigator, or "controlling mind" behind all that had taken place. It did not follow from the mere assertion of fact in the note that the perpetrators of the kidnapping intended to convey that the accused was in charge of "the company". There was also evidence of statements made by Truong Hong Phuc in recorded telephone conversations with the mother of the deceased to the effect that his was accountable to others in "the company" and that the money to which reference was made was not regarded as being due to him.
Accordingly, I decided that I should instruct the jury that the note could not be used as evidence supporting the prosecution contention that Phuc was the "controlling mind" or "force" behind "the company" or that the perpetrators were acting under his direction. I considered that an appropriate instruction could be formulated that would be both comprehensible and effective.
In that situation, I formed the view that the exclusion of the evidence was not required in the proper exercise of judicial discretion, but that its use should be restricted as indicated. I informed counsel that I would hand down my reasons for admitting the evidence in due course.
Subsequently, evidence was given by the mother of the deceased that she called the accused Phuc on her mobile telephone from the Glen Waverley Police Station at about 9.00 p.m. on 29 April 1996 and that the following exchange occurred.
"I asked Phuc, 'Why did you kidnap my son?', and his answer to me was that 'I have told you I can do whatever I want to and I give you' – 'and I will give you 72 hours to pay me the money' and he told me that 'After you have paid me the money I will let you know about your son, I will talk about your son'. And after that I asked him, 'So my son, what is happening to him?', and he told me, and he told me that I cannot talk to him on this phone and when I had arranged the money and 'we will talk later about your son'."
This evidence was supported by Doan Thi Thu Thao and, when challenged as a recent invention by counsel for the accused, was further supported by Sergeant Schipper who made a contemporaneous note of what was conveyed to him as the interpreted substance of the conversation.
If the evidence of Ha Thi Que Mai were to be accepted as to that conversation, which took place only a matter of hours after the kidnapping, the accused in Hong Kong not only knew about what had taken place but referred to the same period of time for the payment of money as that set out in a note left at the scene, and which at that stage had not been discovered. That combination of circumstances would clearly be relevant to the jury consideration of his possible involvement and provide a separate basis for its admission.
Although this additional evidence could be seen to cast new light on the expression "the guys from Brother Phuc's company" in the note, I decided that its use should still be restricted as earlier indicated in order to avoid, possibly in an excess of caution, potential unfairness to the accused.
---
ANNEXURE
ADMISSIBILITY OF RANSOM NOTE
Relevant Facts
The translation of the Ransom Note by PHAN LUAN (Deps 2653, 2657) is as follows:
You call mother to tell her that I have gone with the guys from Brother Phuc's company the younger brother to Mrs Doanh those guys said to give mother 72 hours to pay the money.
The ransom note was found by DOAN Thi Thu Thao at 1 Regal Court, Glen Waverley at approximately 2.15 am on 30 April 1996, when police had taken her back to Regal Court to get a jumper.
DOAN (Deps 1504)
CARROLL (Deps 1797 - attached)On its face, the note was written by LE Anh Tuan under the direction of the kidnappers. Further:
(a) DOAN says that the note was is in LE Anh Tuan's handwriting (Deps 1504);
(b)POTTENGER examined the note and concluded that a fingerprint on the note was that of the deceased (Deps 2669 - attached);
(c)Although the note was not discovered until approximately 14 hours after the kidnapping, it is to be remembered that the note was in Vietnamese and therefore less likely to be detected by police as a ransom note. Further, there was no possibility of anyone else having planted the ransom note in the house (such as DOAN or HA):
(i)BOX & SINGLETON saw the kidnapping occur at approx. 12.15 pm and immediately rang the police.
BOX (Deps 317);
SINGLETON (Deps 2170);
(ii)The police arrived at 1 Regal Court at 12.35pm and remained there until securing the scene. HA and DOAN were taken to Glen Waverley CIB and remained there until being taken back to 1 Regal Court as set out in paragraph 2 above.
STANDISH (Deps 2174 - attached);
SCHIPPER (Deps 2176 - attached);
FAVERO (Deps 1905 - attached);
BROMLEY (Deps 1742 - attached).
The note was referred to in the phone calls between PHUC and HA subsequent to 29 April 1996 (intercepted and taped by the police):
(a) In the phone call occurring on 1 May 1996, at 15:21:02, HA said to PHUC:
The people who came and took Tuan Anh away and made Tuan Anh wrote a message for me. To say that he has gone with the people from Phuc's company. But ...
PHUC responded:
Now … you do not say these things, I do not wish to know anything about that. OK?
(Pages 100-101 - attached).
(b) In the phone call occurring on 2 May 1996 at 10:45:31, HA said to PHUC:
Well ... my son ... I am very concerned because according to the paper that he has left for me, it said that I have 72 hours and today is the last day. It is not as if I am not aware of that. In this matter I want you to think that before and after we are still brother and sister. ...
PHUC responded:
I am speaking so that you understand ... there ... You are playing with the time a little too long.
(Page 115 - attached).
Admissibility of Note pursuant to principles of RES GESTAE
A hearsay statement is admissible as part of the res gestae, if it can be established that:
(a) the statement is relevant to a fact in issue;
(b)the statement was made as part of the res gestae by a participant or bystander to the incident; and
(c) the possibility of concoction or distortion can be excluded.
Ratten v R [1972] AC 378 at 389.
In this case the ransom note is admissible as part of the res gestae, it being:
(a) relevant to an explanation of the cause of LE Anh Tuan's disappearance;
(b) contemporaneous with the kidnapping; and
(c)by reason of the nature and contents of the note together with its contemporaneity, the note is not reasonably likely to have been concocted or distorted - as to this issue also see paragraph 3 above.
Once the ransom note is admitted, it can be used as evidence of its contents, namely:
(a) that LE Anh Tuan was kidnapped;
(b) that whoever kidnapped LE Anh Tuan was after money;
(c) that HA had a dead-line of 72 hours in which to pay "the money"; and
(d) that the kidnappers were "the guys from Brother Phuc's company".
The weight to be placed on the note and its contents then becomes a matter for the jury.
Admissibility of Ransom Note as AN ACT OR STATEMENT IN FURTHERANCE OF A CONSPIRACY
Evidence of the acts and declarations of co-conspirators in furtherance of a conspiracy are admissible against the accused, once reasonable evidence of the participation of the accused in the conspiracy has been adduced.
Ahern v R (1988) 165 CLR 87;
R v Pektas [1989] VR 239;R v Smith, Ashford & Schevella (1990) 50 A Crim R 435;
Tripodi v R (1961) 104 CLR 1.
In this case, the taped phone conversations provide sufficient evidence that PHUC was involved in a conspiracy:
(a)It is quite clear that PHUC is demanding money from and making threats to HA.
Deps 4618-4642, 4652-4677, 4697-4709.
(b)It is also clear that PHUC is not acting alone. As an example HA gets threatening calls at the Regent Hotel from an unknown male.
Deps 4647-4650, 4686
(An analysis of the transcript of these calls together with the CCRs for phone 0411885057 indicate that these calls are likely to have been made by BUI Tai Huu - although for the purposes of the admissibility of the ransom note under this head, it is not necessary to show specifically who PHUC was conspiring with.)
(c)PHUC when speaking to HA acknowledges that someone from Sydney or "from up there" is involved in this matter and that he has given HA's details to that person.
Deps 4619, 4631-2, 4638, 4652, 4655
(d)PHUC advises HA of the existence of "the company" and the money belonging to the company.
Deps 4620, 4628, 4632, 4633, 4638, 4676
(e)PHUC makes reference to the involvement of others (from "the company") in getting the money back and in not giving HA any more chances.
Deps 4632, 4635, 4639, 4700, 4704, 4706
(f)Also refer conversations between HA and PHUC subsequent to the kidnapping eg conversations in which the existence of the ransom note is referred to - see paragraph 4 above.
The ransom note is an act in furtherance of the conspiracy. As such it is admissible as an exception to the hearsay rule. It provides evidence, not only of the fact that a kidnapping has occurred, but as evidence linking PHUC to the kidnapping.
2
0