R v Vu
[2018] VSC 613
•17 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2018 0081
| THE QUEEN | |
| v | |
| HUNG ANH VU | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 October 2018 |
DATE OF RULING: | 17 October 2018 |
CASE MAY BE CITED AS: | R v Vu |
MEDIUM NEUTRAL CITATION: | [2018] VSC 613 |
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CRIMINAL LAW – Admissibility of evidence – Evidence as to maximum depth of wound tract – Evidence of abrasion on skin surface – Whether relevant – Whether probative value outweighed by danger of unfair prejudice – Both pieces of evidence admitted.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K Doyle | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr S Bayles | Stary Norton Halphen |
HIS HONOUR:
Introduction
Pre-trial rulings were required in respect of the admissibility of two aspects of the evidence of Dr Gregory Young, the pathologist who carried out the autopsy on the body of the deceased in this case. On 1 October 2018, I heard the submissions of both sides in respect of the matters in question. On 2 October, I informed counsel of my decision to permit the prosecution to lead the two pieces of evidence and indicated I would provide reasons in due course. These are my reasons.
Background
The accused is charged with the murder of Viet Hung Nguyen (‘the deceased’) and attempted murder of Laura Chan, as well as with alternate offences in respect of Ms Chan. The offences are alleged to have been committed on 5 August 2017.
At the time of the events, the accused and his partner Ms Chan lived at 10 McGregor Court in Sunshine. They had been together as a couple since 2001, but had never married. They had two children together, William and Kevin Vu.
In July 2013, the accused was imprisoned in NSW for drug trafficking. In 2014, while the accused was still in custody, Ms Chan formed a relationship with the deceased and he moved into 10 McGregor Court, premises in which Ms Chan and the accused had been living before his incarceration. The deceased remained living in the premises with Chan and her two children until 31 August 2016, when the accused was released from custody. On 18 September 2015, Chan and the deceased got married. The relationship and the marriage were kept secret from the accused.
When the accused was released from prison on 31 August 2016, he returned to live with Chan at 10 McGregor Court. At some time after this, Chan introduced the deceased to the accused as a friend who had helped her while the accused had been away from the home in prison. The accused and Chan became friends.
In the ensuing year, the accused became suspicious about the deceased and Chan. On the day of the alleged offences, the accused spoke with his mother about whether Chan had been cheating on him. His sons Kevin and William were present and heard this conversation. The accused later questioned William about the relationship. William confirmed that the deceased had been sleeping with Chan while the accused had been in prison.
On his arrival home, the accused obtained a black handled hunting knife from a kitchen cupboard and at some time, secreted the knife somewhere close to the table in the kitchen/dining room. [1]
[1]The account of the events on 5 August 2017 set out in this ruling is largely based on the version as set out in the Summary of Prosecution Opening and the depositions. Since my decision on the disputed matters was communicated to the parties on 2 October 2017, evidence has been given by a number of witnesses which was not always precisely as foreshadowed. None of the apparent differences had any bearing on my decision and I have not incorporated them into this ruling.
At 5.30pm, the accused rang the deceased and asked him to come over to 10 McGregor Court. He also rang a friend Minh Nguyen whom he informed about his suspicions of Chan and the deceased. He was upset and Nguyen tried to calm him down. Nguyen considered that the accused was going to confront Chan with his suspicions. So concerned was Nguyen that he telephoned a number of people and asked them to attend at 10 McGregor Court. Several people including Kim (the daughter of the accused) and Minh Nguyen himself attended at the property. By the time Minh Nguyen arrived, the deceased was already in attendance.
Not long afterwards, Chan arrived home, and saw the deceased and others sitting at the dining table. She went into the bedroom to have a shower in the ensuite. The accused asked her to come into the living room for a chat. She tried to avoid the conversation by saying there were too many people there. The accused tried to drag her out of the room. She resisted and said she wanted to change out of her bath robe. The accused permitted her to do so and said he would tell the others to leave. He then went into the lounge room and asked the group to leave. They did so. Once the visitors had left the house the accused locked the front door and the sliding glass door near the dining table. Only the accused, the deceased, Chan, Kevin and William remained, the children in their bedrooms. The accused returned to the main bedroom and, finding the door locked, kicked it in. He grabbed Chan and forced her into the kitchen, saying to her, ‘Just come out and sort things for once.’
Chan then sat next to the deceased at the dining table, across from the accused. He confronted them about their relationship. They denied it. After some time, on the admission of the accused in his interview with the police, he retrieved the hunting knife from where it was hidden. Minh Nguyen, being concerned about noises coming from inside the house, found a way inside through Kevin Vu’s bedroom window. He entered the dining room and saw the three seated at the table. He notice the accused was angry. The situation escalated quickly.
In circumstances which are the subject of dispute in this trial, the accused stabbed each of the deceased and Chan to the central chest with the knife. The accused died at the scene. Ms Chan was taken by ambulance to hospital and recovered from her wound.
I turn now to the matters requiring rulings.
Evidence of the pathologist Dr Young
Objection is taken to the admissibility of two aspects of the evidence of the pathologist Dr Young. I will deal with them in turn.
Evidence that the wound tract extended to a depth of up to 18 cm
In respect of this matter, Dr Young in his Autopsy Report dated 23 November 2017 catalogued the signs of injury visible on the deceased. He described the sharp force (stab) wound to the right chest and said of the wound, in part, ‘The wound tract appeared to pass from right to left, anterior to posterior and slightly superior to inferior. On probing, the wound tract appeared to extend to a depth of up to 18 cm.’
The defence challenges the admissibility of the last sentence set out above. It is asserted that the content of that sentence is not relevant to any fact in issue in the trial, or alternatively, that its probative value is outweighed by the danger of unfair prejudice.[2]
[2]Section 137 Evidence Act 2008.
Dr Young’s evidence has been pre-recorded under s 198 of the Criminal Procedure Act 2008 and he gave evidence in elaboration on the subject matter of that sentence, amongst other things. In seeming response to the evidence, the prosecutor, Mr Doyle, filed an Amended Summary of Prosecution Opening which contained a number of changes from the version originally filed. The Summary now relevantly states, of the wound tract, ‘The knife penetrated deep into the Deceased’s chest and ultimately penetrated the aorta’, where previously it had stated, ‘The knife penetrated 18 cm into the Deceased’s chest.’
In his pre-recorded evidence, as set out in the submissions and Outline of Submissions of Mr Bayles, Dr Young expanded on and qualified the position in respect of the use of a probe to determine the depth of the wound tract. I will not set out the evidence here, but note it was canvassed with some precision in the defence outline filed on 25 September 2018. Dr Young’s evidence ended up being nowhere near as clear cut as it appeared in the Autopsy Report. Hence the change in the Summary of Prosecution Opening.
Evidence about the abrasion observed around the entry wound
In his Autopsy Report to which I have already referred, Dr Young described the external appearance of the knife wound on the right upper chest as follows:
This was oriented in the 3 o’clock to 9 o’clock plane and measured 2.7 cm in length. It appeared to be squared off at the 9 o’clock end, and came to an acute angle at the 3 o’clock end. There was a surrounding abrasion at the superior aspect of the 3 o’clock end.
Mr Bayles objects to the admissibility of the evidence of the abrasion, again, on the basis, first, of relevance, and then, alternatively, on the basis of s 137 of the Evidence Act 2008 (‘the Act’).
In his pre-recorded evidence, Dr Young expanded on the appearance of and possible cause of the abrasion described above in passages catalogued and elaborated on in the defence outline. At an early point in examination-in-chief, when asked if he was able to offer an opinion as to the likely cause of the abrasion, he said, ‘It’s likely the abrasion is related to the sharp force injury.’[3]
[3]Pre-trial 25.
Later in examination-in-chief, the doctor was shown a photograph of the knife in question, and asked whether there was anything about the knife which was likely to have caused the abrasions, and he said:
In looking at a knife like this, when you do have a sharp force injury with an abrasion surrounding it, you can get what is called a hilt abrasion…And the hilt of the knife is the end of the handle…And if you do have any impact of that against skin, then you can get an abrasion.[4]
[4]Pre-trial 28.
Later still in examination-in-chief, Dr Young was asked to look again at the photo of the knife, and to focus on a particular part of the hilt. He was asked if that told him anything about what might have caused the abrasion, and he said:
Yes, so possibly if the flat end of the handle had come into contact with the skin, that could cause the abrasion. Because…an abrasion is, by definition, due to blunt force trauma.[5]
[5]Pre-trial 39.
In cross examination, he made it clear he was not saying a hilt abrasion was the cause of the abrasion observed, rather that it could be a cause. When asked to comment on any other possible causes, he said any impact to the skin could have caused it.[6] It was caused by some form of blunt force but he was unable to say what force in particular. He could not exclude the possibility it could have been caused by the removal of the knife from the wound, or by a thumb or a hand or a part of the hand. He also, seemingly left open the possibility of the abrasion being caused during chest compressions as part of CPR, or by someone applying pressure to the wound during first aid measures.[7]
[6]Pre-trial 49.
[7]Pre-trial 52.
At page 86, cross examination culminated in Dr Young being asked, ‘So the upshot of that is that you’re really unable to make any comment about what the actual cause of this injury might have been?’, to which he answered in the negative.
In re-examination, Dr Young opined that the position of the abrasion immediately adjacent to the knife wound made it more likely that the abrasion was inflicted around the same time as the wound, ‘unless, by coincidence, there are two injuries that have happened separately in the same area.’ He said hilt injuries are seen occasionally, although not commonly, by forensic pathologists, in his experience. He maintained it was a possibility that the abrasion in question was a hilt injury.
Submissions by both sides
In this Court in support of exclusion of the wound tract evidence, Mr Bayles submitted there was ‘no sufficient evidence to support a conclusion that what Dr Young probed was the wound tract.’ In those circumstances, he submitted the evidence ‘fails the relevance test as an assertion and as a piece of evidence.’[8]
[8]Trial 35.
He also submitted in the alternative that whatever limited probative value the evidence possessed was outweighed by the danger of unfair prejudice. He asserted the danger with this evidence was that a jury might improperly use it to reach a conclusion that is not open as to the depth of the wound tract.
In respect of the abrasion evidence, defence counsel submitted that in circumstances where Dr Young did not rule out various other causes of the injury other than impact with the hilt of the knife, the evidence was only weak evidence that the abrasion was caused by the hilt of the knife.
As with the other piece of evidence, as indicated already, counsel in the alternative to the relevance argument submitted the evidence should be excluded under s 137 of the Act.
In the end, counsel submitted that the real danger here was that each of the two challenged pieces of evidence was inherently flawed but that the pieces of evidence might be used in combination by a jury to reach a conclusion with their flaws being ‘overlooked, misjudged or not properly appreciated.’[9]
[9]Trial 53.
Mr Doyle in reply submitted that any one piece of evidence on the topic of the depth of the wound should not be looked at in isolation. The prosecution would not go to the jury on the basis that they could definitively decide the knife went in 18 cm. Rather, the prosecution case would be that the knife wound was a deep one and the evidence of Dr Young about his probing of the wound tract would be simply part of the overall set of facts the jury could look at as going to the issue of the depth of the wound. The probing of the wound tract was part of what the pathologist did in carrying out his autopsy. His evidence about this matter could not be readily edited and for that to be done in any event would be an artificial exercise which would deny the jury the full picture of the evidence. It was asserted that Dr Young established an outer limit for the tract. Any issues or weaknesses in that evidence were, it was submitted, fully explored during cross examination. Mr Doyle submitted that the risk of the jury using the evidence of Dr Young to improperly reach a conclusion about the depth of the wound was ‘negligible’.
Analysis
Section 55(1) of the Act reads:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
Section 137 of the Act reads:
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
It must be understood that in considering the question of the relevance of a particular item of evidence, and also in considering the question of whether or not the probative value of the evidence is outweighed by the danger of unfair evidence, the item of evidence must be considered not in isolation, but in the context of the evidence in the overall case.[10]
[10]Bayley v The Queen [2016] VSCA 160 at [130]-[132] (Warren CJ, Weinberg and Priest JJA); Evans v The Queen (2007) 235 CLR 521 at [177] (Heydon J).
In that way, it can be seen that the two pieces of challenged evidence are not entirely independent of each other, and nor is either of them to be viewed in isolation from other evidence in the case.
The prosecution seeks to prove that the accused deliberately stabbed the deceased with a knife, and that he did so intending to kill the deceased or cause really serious injury to him. Both of those matters are facts in issue. Therefore, the depth, nature and force of the stab wound to the chest which killed the deceased is itself a relevant matter, having a bearing on those facts in issue.
During the autopsy, Dr Young sought to explore the issue of the depth of the wound insofar as he was able to do so. That was the purpose of the exploration of the wound he carried out with the use of his finger and a probe. He inserted the probe into the wound, and was able to put it to a depth of 18 cm, which he then considered to be the maximum depth of the wound tract. He gave evidence of his view as to the minimum depth of the wound tract. He did not assert, and nor did the prosecution suggest, that the wound tract necessarily went for 18 cm. But putting that outer limit on it left open the possibility that the tract did extend for that distance. That was a matter of relevance.
Defence counsel asserted that there was no sufficient evidence to support a conclusion that what Dr Young probed was the wound tract. The problem with that submission is that that is what Dr Young said he did. True enough, there were limits on his ability to do that effectively, and it would not be possible for a definitive conclusion as to the depth of the tract to be reached on the basis of his evidence about how far the probe was able to be inserted. But that does not mean that what he observed is irrelevant. The fact is that this particular aspect of the overall autopsy process was able to put an outer limit on the depth of the wound tract. It was a very substantial outer limit, where, of course, a much shorter outer limit might have been arrived at, but was not.
I accepted the submissions of Mr Doyle in respect of the evidence about the maximum depth of the wound as ascertained by Dr Young. In my view, the evidence of Dr Young about his use of a probe to measure the outer limit of the wound tract was relevant, and the probative value of the evidence was not outweighed by the danger of unfair prejudice. The limitations on the force of the evidence were clearly exposed in Court during the pre-recording of the evidence. There is no real danger that the jury might attribute more weight to the evidence than it warrants. It would have been obvious to them that it has its limitations. The jury must be credited with the intelligence to act on the evidence in a reasonable way.
So, too, with the evidence about the abrasion. Again, I accepted the submissions of Mr Doyle. The evidence was relevant. It was of an observation made by the pathologist when he sought to catalogue and describe in as much detail as possible his findings on examination of the external appearance of the fatal knife wound. He was looking for anything of relevance, and noticed, and saw fit to make a note of, this feature of the wound. That there might have been other explanations for the presence of the abrasion than that it was the product of the hilt of the knife coming into contact with the skin at the time of the infliction of the wound did not mean that the jury should not be informed of the opinion of the expert that one possible explanation was a hilt injury. Indeed, the jury may well think that the sorts of alternative explanations advanced by defence counsel had an implausible ring to them. If that abrasion was the result of contact with the hilt, it would be suggestive of the knife having been thrust into the chest of the deceased up to the hilt. That of course would indicate a very substantial penetration of the knife into the chest, and may say something as to the deliberate nature of the action and the state of mind which accompanied it. In any event, this topic was fully explored in cross examination, and was properly a matter for argument. Having now heard the arguments put to the jury on both sides, I am fortified in the view that the evidence was properly admitted.
Conclusion
Mr Bayles submitted that each of the pieces of evidence in issue was inherently flawed. I do not accept that this is so. Rather, it is the case that each piece of evidence, like many pieces of evidence in any criminal trial, was subject to limitations, which limitations were well exposed in cross examination, and will be able to be understood and taken into account by the jury. Another thing about the two items of evidence is that neither piece of evidence would prove much in isolation. Again, this is far from unusual. Neither of those things means that the items of evidence were not relevant.
In my view, each of the challenged pieces of evidence was relevant, and in neither case was the probative value of the evidence outweighed by the danger of unfair prejudice. In those circumstances, I permitted the prosecution to lead the evidence in question.
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