DPP v Lo

3 It is alleged that AB shot Paul Hogan on the morning of 24 May 2016 at [REDACTED], Maddingley; and that Lo assisted, encouraged or directed AB in those actions.

4 AB has pleaded guilty to the murder of Paul Hogan and will give evidence that he had never met Paul Hogan prior to the murder but that he was persuaded by Lo to commit the murder.

5 The accused was 26 years of age at the time of the murder and AB was 33. The deceased Paul Hogan was 49 at the time of his death.

6 The accused was living with Hogan prior to the murder and shared a bedroom with him downstairs in the two storey townhouse, whereas Peter Hughes, a Crown witness had a bedroom upstairs.

7 Lo had been living with Hogan since late April and was intimately involved with him prior to the murder. Lo is a Chinese National who arrived in Australia in June 2015 on a visa that was to expire in June 2016. She was keen to obtain a visa that would allow her to live in Australia.

8 She was working at a herb farm in Bacchus Marsh known as the Bull Farm in order to fulfil her visa requirements. She commenced living with Hogan on or around 29 April 2016 having met via an online web chat service called WeChat.

9 During the time the accused lived with Hogan, she presented to her work colleagues as being in an intimate relationship with Hogan, but she also presented as becoming increasingly disenchanted with him over the period they knew her.

10 She was in regular contact with a number of other males she had met online and in person since arrival in Australia and had been in contact with AB since at least July 2015. She had previously lived with AB and had a brief sexual relationship with him but remained friendly with him after moving to other premises.

11 AB went to Vietnam to visit relatives of his wife in May 2016 and returned on the morning of 23 May - the day before the murder.

12 The accused had been in contact with AB when he was in Vietnam.

13 The accused persistently complained about Hogan to her other male friends and as the relationship with Hogan deteriorated, she communicated with other witnesses about wanting him dead or wanting someone to kill Hogan.

14 She said to Chris McFarlane in a chat session discussing Hogan on the evening of 22 May 2016, 'I wanna kill him right now...fucking shit will never close his mouth_.'_

15 She was overheard sometime between 2 May 2016 and 23 May 2016 by Rae McFarlane at the Bull Farm saying, 'I'm gonna kill him and I hate him, I want him dead.'

17 According to the evidence of Chris McFarlane on Monday 23 May 2016, Lo was arguing with Hogan when she was dropped off by him at work and she then told McFarlane that she wanted to slit Hogan's throat and wanted him dead. She asked Chris McFarlane if he would kill Hogan.

18 The same day she contacted AB and communicated that she needed to kill Hogan and that AB's daughter Breanna was not safe because Hogan was a paedophile. She said Hogan had photos of Breanna taken from Lo's phone and he knew where Breanna lived.

19 Hughes observed constant bickering between Lo and Hogan at the Maddingley premises in the days leading up to the murder. However, it was also in this period that a marriage celebrant attended to interview Lo and Hogan about proposed plans for them to marry.

20 On the evening of 23 May 2016, Lo communicated by text message with AB about wanting Hogan dead and gave him a description of Hogan and the van he usually drove. These messages were discovered by Hogan and read aloud to Hughes that same evening.

21 Although AB offered to collect Lo that same night she declined and arranged for his assistance the following day.

22 On the morning of 24 May when Hughes got up he observed Hogan and Lo packing her possessions in boxes for her to move out.

23 Lo texted AB to come and get her claiming she had been beaten the night before. She had also told him at some stage that Hogan was going to rape and kill Breanna.

24 AB took his shotgun with him. Whilst driving from Thornbury to Maddingley Lo confirmed to AB that she had been raped by Hogan more than once and that Hogan was leaving the house referring to Hogan as 'it'. The messages said, among other things, 'It's leaving the house now' and 'With it witness'.

25 Lo' s possessions were placed outside the house near or in the driveway.

26 Meanwhile, Hughes needed a lift to the train station and Hogan agreed to drive him. They got into Hogan's transit van, Hogan in the driver's seat and Hughes in the passenger seat next to him. AB arrived at that time in his car and pulled in behind the van as it was being reversed out of the driveway.

27 AB got out and approached the driver's window. Lo was said by AB to be nearby and to have indicated where Hogan was. AB approached and shot Hogan with a 12 gauge shot gun at close range through the driver-side window. Lo was still in the driveway at the time of the shooting.

28 When AB had appeared at the driver-side window with the gun Hughes had attempted to warn Hogan but there was insufficient time and Hogan was immediately shot causing shotgun pellets to impact Hughes, although not seriously.

29 Hogan was killed instantly by the shotgun blast.

30 Hughes quickly jumped out of the van and ran off down the street.

31 AB appeared to go after Hughes with the gun but was stopped in his tracks when Lo called out his name.

32 AB and Lo then collected Lo's belongings and drove away.

33 AB took Lo to the Bull Farm at her request and then to his home where he changed clothes. The pair drove to a gun shop where AB lodged the shotgun for cleaning, and AB then took Lo to a medical clinic in Fairfield. Lo told the doctor she had been raped and was referred to the Alfred Hospital.

34 AB then drove Lo to the home of her friend, Canterford in Balwyn where she left her belongings.

35 She put the clothes AB wore in the shooting into a neighbour's bin.

36 A little later, AB drove Lo to the Alfred Hospital.

37 On the way Lo used a notebook computer to back up her phone and then asked AB to post her phone back to Hong Kong after removing her SIM card. Lo also went online to the VicRoads website to change her address from Hogan's address to a previous address where she used to reside.

38 When she was seen at the Alfred Hospital she was referred to the Royal Women's Hospital and given a taxi voucher. She went in a cab to the Royal Women's Hospital and made a complaint of rape against Hogan and Hughes.

39 Police from the Sexual Crime Squad were notified of an allegation of rape that evening and went to the hospital and did a disclosure interview between 5.30 pm and 9.40 pm.

40 It is alleged that at that time Lo told police a number of lies including that:

• She was raped that morning and many times before in the same house by two people;

• She stayed with Hogan and Peter (Hughes) between 29 April until 24 May and they raped her and threatened to kill her if she told anyone;

• They took turns and it didn't matter how much she yelled;

• They threatened to kill her and her family back in Hong Kong;

• She and Hogan fought the previous night and she was badly beaten;

• Hogan ran over her belongings in the driveway that morning and a lady driver saw and stopped and invited her to jump in the car with her;

• The lady driver took her to Bacchus Marsh railway station;

• She later took a cab to Southern Cross Station and then a cab to Canterford's address.

41 On 25 May a 25 page statement was signed by Lo and acknowledged and juratted before Detectives Thompson and Robertson of the Sexual Crime Squad.

42 The police sexual complaint statement is the basis for the perjury charge.

Application by Defence for severance of charges

43 The accused, Lo, applies to sever the two charges on the indictment so that the charge of murder would proceed without the charge of perjury on the same indictment.

44 The Crown submits that joinder of the charges is appropriate and that the accused will not be prejudiced by joinder and that severance should not be granted.

45 It is necessary to set out some further detail about the framing of the indictment. Indictment No C1610707 was filed on 3 October 2017 containing a charge of murder (charge one), a charge of causing injury recklessly (charge two) and a charge of attempt to pervert the course of justice (charge three). The second charge of causing injury recklessly related to injuries received by Peter Hughes in the course of the shooting of Mr Hogan by AB. The charge of attempt to pervert the course of justice related to events on 25 May 2016, the day after the alleged murder. The allegation was that the accused intended to pervert the course of justice 'by doing an act which had the tendency to pervert the course of justice in that she provided a 25 page, partly false, exculpatory sworn statement to police in an attempt to create an alibi for herself in the investigation of the murder of Paul Hogan.'

46 A new trial indictment was provided to the Court on 15 November 2017: Indictment No C1610707.1 The new indictment contained one charge of murder and one charge of perjury. The charge of murder was framed in exactly the same wording as on the previous indictment.

47 The charge of perjury is framed in the following terms:

Charge 2 the Director of Public Prosecutions charges that YU TUNG LO at Docklands in Victoria on 25 May 2016 in a written statement for the purposes of the investigation of an offence knowingly falsely stated that:

She left Paul Hogan's home with a woman who had stopped and offered her a lift after seeing her belongings being run over by the van in the driveway;

The woman took her to Bull Farm and then dropped her off at Griffith Street, Maddingley, close to a train station;

She then took a taxi to Southern Cross Station;

She then took a taxi to Tim Canterford's home;

She later took a taxi to the Alfred Hospital;

'She never willingly had sex with either of them'; and

When she left Paul Hogan's property, he was alive and uninjured;

and signed an acknowledgement in the presence of Hannah Thompson, a police officer, confirming that the statement is true and correct and is made in the belief that a person making a false statement is liable to the penalties of perjury.

48 The charge of perjury is brought under s 314 of the Crimes Act 1958 (Vic) ('Crimes Act').

49 The Crown case is that AB acted on the complaints and reports by Lo which led to him shooting Hogan and driving away with Lo. Believing she had in fact been beaten and raped by Hogan, AB took her to the doctors and then to a hospital so that she could receive appropriate treatment for sexual and other assaults. Therefore, Lo reported the rape allegations to medical staff at a clinic in Fairfield, and was referred to the Alfred Hospital and reported it to hospital staff there and at the Royal Women's Hospital, and, ultimately, to the police and provided a statement to the Sexual Crime Squad on 25 May 2016. It is alleged that Lo's statements (on 24 May 2016) included the matters referred to in paragraph 40 above.

50 The subsequent police statement contained related allegations.

51 The submission is made on behalf of Lo that the trial for the charge of murder may be prejudiced if heard together with the trial for the charge of perjury and that, in the circumstances, severance is available to cure potential prejudice under s 193(3) of the Criminal Procedure Act 2009 (Vic) ('Criminal Procedure Act').

52 It was further submitted that the jury would need to be given a number of significant directions in relation to the murder charge, including directions as to the elements of the offence, statutory complicity, incriminating conduct and a Crown witness' motive to lie, and that there was a risk that the jury would be distracted or confused by additional directions in relation to proof of the perjury charge.

53 In oral argument, Mr Cahill, on behalf of Lo, submitted that a major concern was that the jury might, if directed about the use of the evidence for proof of the charge of perjury, run the risk of misusing that evidence and become confused in receiving directions about whether and how they could use the evidence as an implied admission to complicity in the crime of murder.

54 Mr Cahill also referred to the old rule of practice that murder charges are generally heard without joinder of other charges and noted that the practice remained desirable.

55 On the other hand, Ms Borg for the Crown, submitted that there is a prima facie basis for joinder of the charge of perjury with the charge of murder on the basis that the two charges arise out of the same series of events, and that joinder was authorised pursuant to the Criminal Procedure Act schedule 1 of clause 5(1), 'a charge sheet or indictment may contain charges for related offences whether against the same accused or different accused.'

56 Ms Borg said that the Crown case was that the accused had told a series of lies following the murder culminating in the police statement complaining of rape by Hogan and Hughes and that the content of Lo's statement to police, upon which the perjury charge is based, should be before the jury as incriminating conduct in support of proof of the murder charge so there was no prejudice to the accused.

57 The Crown argued that the elements of the offence of perjury are straight forward and that the directions that would be given to the jury as to how they can use the evidence were not overly complicated.

58 The Crown also referred to cases in which an indictment for murder has been permitted to include an additional charge arising out of the same facts and circumstances, citing as an example, the case of The Queen v Hugo Rich in which a charge of murder and armed robbery were on the same indictment.[1]

59 The Crown also referred to The Queen v AB & Baker (No 1) in which Whelan J stated that the strict tradition of a separate trial of murder counts from other counts was no longer warranted.[2]

60 The Crown argued that the jury would be capable of following directions about how to apply the evidence for proof of the perjury charge and proof of murder.

61 Having considered the arguments, I have reached the conclusion that the perjury charge should be severed from the charge of murder.

62 Although I accept that the perjury charge flows from the same series of events, the issues at stake are very different.

63 The Crown alleges that the accused falsely reported being sexually assaulted by both Hogan and Hughes in order to cover her involvement in the killing of Hogan, in the presence of Hughes, and in order to distance herself from the actions of AB in shooting Hogan. They also allege she gave a false account of how she managed to escape from Maddingley premises with the help of a lady by-passer, and that this account deliberately omitted the truth as to Lo's involvement with AB before and after the shooting.

64 The Crown rely on the false allegations, about her circumstances, before the murder and her movements after the shooting as incriminating conduct in proof of the charge of murder. The Crown specifically relies on the allegation that she had been raped by Hughes as incriminating conduct in support of the charge of murder.

65 The Crown's position regarding allegations about having been raped by Hogan, is that it is not relied on as incriminating conduct in proof of the charge of murder but the Crown nevertheless will go to the jury on the basis that her allegations of being raped by Mr Hogan were false.

66 However, the Crown has concerns about being drawn into a trial within a trial, regarding the falsity or otherwise of the allegations regarding rape by Hogan, and therefore do not seek to rely on that lie as incriminating conduct. It was also submitted by the Crown that another reason for not relying on false allegations of rape against Hogan is it would be 'a boot straps argument' for the Crown.

67 Whilst Ms Borg submitted that the jury's consideration of a perjury charge would be relatively simple because the elements of a perjury charge are not difficult to explain, in my view, there is some complexity about a perjury charge based on the seven specific particulars relied on by the Crown, especially in circumstances where, at least one of those particulars relies on the subjective state of mind of the accused who made the statement, not as a person under questioning about allegations of murder but as a sexual complainant.

68 Also, if the perjury charge remains on the same indictment, the jury would have to consider inter alia whether or not the accused made false statements about being raped by Hogan, because the sixth particular in support of the perjury charge is that the accused claimed in her signed statement that she never willingly had sex with either Hogan, or Hughes.

69 Even with the most careful directions, there is a significant risk that the jury could be confused by directions about the evaluation and use of evidence required to prove the charge of perjury when allied with directions and warnings about the use of similar or related evidence relied on as incriminating conduct in proof of the charge of murder.

70 There is also a risk of overloading the jury with instructions about the different elements of each charge and the evidence referable to each charge. The gravity of the charge of murder is such that, in my view, it should receive the jury's full attention without the distraction of the charge of perjury. In these circumstances, it is desirable that the charge of perjury be severed and I rule that this should occur.

71 The Crown have filed a notice of incriminating conduct which is a revision of an earlier notice (Addendum to Notice of Incriminating Conduct filed 20 November 2017).

(1) The conduct of the accused after the shooting, in particular, placing her belongings in AB's car and absconding the scene together with him.

(2) The behaviour of the accused in getting out of the car after she and AB had travelled a short distance running back to Hogan's house to pick up something more from the driveway before running back to AB's car and leaving the scene with him.

(3) Remaining in the company of AB, attending various places with him subsequent to the shooting, and directing him to take her to a number of venues including the farm in Bacchus Marsh, Tim Canterford's house and the Alfred Hospital.

73 The Crown no longer seek to rely on the above matters as incriminating conduct, but now rely on them as relevant to proof of complicity.

74 Paragraph 4 of the Addendum to the Notice sets out a series of lies in Lo's sexual complaint statement on 25 May, which are relied on as incriminating conduct. The lies relate to Lo's movements after the shooting, omitting reference to her contact with AB before and after the shooting, and her presence at the scene during the shooting, and giving a false account of having been picked up by a lady and taken to various locations by the lady. The account fails to mention being driven from the scene by AB and attributes to the lady, the role of driving her various places after departing the Maddingly premises. The lies also include the allegation of being in a panic that morning because of having been raped.

75 Twenty six lies are listed by the Crown in the Addendum to the Notice, but in essence, they all relate to the story about 'the lady' or relate to the allegation of being a victim of sexual assault. The specific lies that relate to being a victim of sexual assault are: 4(d) 'I was in a panic because I had been raped that morning, I had to get out and then he ran over my stuff. I did not know where to go.' Also 4(z) that she never willingly 'had sex with either of them ever.' The statement of sexual complaint includes the implication that Hogan and Hughes were in league with one another in sexual assaults performed on her and that three of four times she woke up naked in Peter's (Hughes) bed conscious of having been sexually penetrated but unaware how it had happened (para 28).

76 The accused, by her Defence response, admits that Peter Hughes did not in fact assault or sexually assault her.

The disclosure interview; lies (paragraph 5 of the notice)

77 In addition to the police complaint statement of 25 May, the Crown also rely on the similar lies told in the disclosure interview to police on 24 May.

78 There are some 'further lies'(better described as other lies) relied on by the Crown drawn from the disclosure interview, that Lo had been raped many times in Hogan's house by two people, that Hogan and Hughes both raped her, they threatened to kill her if she told anyone and they took turns.

Opposing arguments about the lies in the disclosure interview and police statement being admitted as incriminating conduct

79 The Defence does not dispute that Lo's statements about a lady rescuing her from outside the Maddingley premises and driving her to various places are capable of being used as an implied admission against her. The Defence also concedes that the allegations of sexual assaults or rape by Hughes are capable of being used as incriminating conduct or implied admissions against her. However, the Defence seeks to distinguish the detailed particulars from these two big lies just identified. The details spelt out in the particulars, which are part of the narrative behind the two big lies, are argued to be not material lies per se, and only to be components of the two big lies.

80 The Defence concedes that the detailed particulars of the two big lies might potentially otherwise be relevant to credit.

81 The Defence also argues that the disclosure interview comments on 24 May should be excluded under ss 135 and 137 as being repetition of material occurring in the 25 May statement. Otherwise, it should be excluded under s 90 on the grounds of fairness or excluded as irrelevant.

82 In essence, the Defence is raising a concern about the trial being swamped by dissection of the details of the two big lies. The Defence is also arguing that many of the particulars which have been identified in the Addendum to the Notice are not on their own material lies.

83 The Crown argues that the particulars of the two big lies are inseparable from the overarching lies and that the accused went to a lot of trouble in the detail she put forward, even maintaining lies told in the disclosure interview, in her formal statement the following day.

84 In my view, the concern raised by the Defence is legitimate in light of the directions and warnings I will need to give if the evidence is adduced as incriminating conduct. Each individually identified lie is only material in that it is a part of the fabric of the two big lies.

85 The parties are invited to consider a pragmatic approach which treats the evidence in question in a global fashion referable to the two big lies, being the lie about the lady which is underpinned by deception about involvement with AB, and the lie about sexual assault by Hughes, which is underpinned by allegations of being exploited by both men at the Maddingley premises prior to the day of the murder.

86 I will therefore defer final ruling on this aspect of the case until the parties have had a chance to discuss and refine their approach in light of my indication about this evidence.

The deletion and disposal of data from her mobile phone; (paragraph 7 of the Notice)

87 The removal and disposal of data from her mobile phone shortly after the shooting, including her communications with AB, was ultimately not disputed as being capable of being treated as an implied admission or post offence incriminating conduct, although the Defence do not admit that the alleged conduct occurred.

The change of address on the VicRoads website (paragraph 8 of the Notice)

88 The VicRoads change of address was performed online by Lo within hours of the shooting of Hogan. She changed her address from the Maddingley premises to a former address where she was not going to be residing. This action was said by the Crown to be an attempt to distance herself from the address where she knew AB had attended and shot Hogan. Therefore being relevant to her knowledge of what had just taken place and her awareness that she was complicit in what had just taken place.

89 The Defence argued that the evidence in the change of address was intractably neutral because Lo later told police she was living with Hogan when she made her sexual complaint statement, so she was not covering that fact up. She was also not attempting to flee. She had been dropped off with her belongings at Canterford's house where she was planning to stay.

90 The Defence also argued that there is no direct evidence that Lo witnessed the shot to the face of Hogan by AB.

91 The Crown argued that just because Lo decided later that day to divulge to police that she was living with Hogan, did not mean her decision at the time of the change of address was not done at that time to distance herself from the crime scene. They argued the behaviour was an implied admission of knowledge of AB's actions and awareness of her complicity in those actions.

92 In my view, this evidence is capable of being adduced as incriminating conduct or an implied admission. A final decision should be deferred until the end of all the evidence (as is appropriate for all evidence of implied admissions put forward as incriminating conduct based on the requirements of s 20 of the Jury Directions Act 2015 (Vic)) but in my view, the evidence is relevant and admissible; showing that soon after the murder Lo wanted to distance herself from Hogan's address.

Discarding AB's clothing in a wheelie bin (paragraph 9 of the Notice)

93 This evidence was ultimately not disputed by the Defence to be capable of being admitted into evidence as post offence incriminating conduct.

Interview at Homicide Squad before caution (paragraph 10 of the Notice)

94 The feigned response of the accused at the commencement of the recorded interview at the Homicide Squad on 25 May 2016 was relied on by the Crown as incriminating conduct. However, the Defence argues that the answers given or things said by Lo should not be admitted into evidence.

95 After the conclusion of the statement of sexual complaint and the signing and acknowledging of that statement on 25 May 2016, Lo was taken to the Homicide Squad office for formal record of interview in respect of the murder of Hogan.

96 Prior to formal arrest and caution, and at a time when she was a suspect in relation to the murder, and before she had been given an opportunity to speak to a legal practitioner, a short conversation took place on videotape in which the accused was told of the death of Hogan and she expressed surprise.

97 The Crown argues that Lo's response expressing surprise at 10.20 pm on 25 May 2016 should be admitted as incriminating conduct, and that the accused knew that Hogan had been shot. The Crown also argued that Lo volunteered her response when told Hogan had been shot and was dead. The Crown argued that the probative value of the evidence outweighed any impropriety in having the conversation before arrest and caution, in accordance with the requirements of s 464A(3) of the Crimes Act. The Crown argued that the public interest favoured admission of the utterances by Lo to the Homicide Squad investigators.

98 The Defence submits that the evidence of implied admissions in the conversation in question should be excluded under section 90 of the Evidence Act because of the unfair or improper approach of Homicide police in discussing the death of Hogan with Lo, in circumstances where she had not been arrested, or told she was a suspect for the murder, and had not been cautioned or given the opportunity to speak to a solicitor. She had been with police for up to eight hours being dealt with as a victim of sexual assault, following extensive earlier engagement with police at the Royal Women's Hospital. The utterances to Homicide police are incomplete and not of high probative value. The Defence points out that once she was cautioned and given her rights, she exercised her rights and chose to remain silent. The Defence seeks exclusion under ss 138, 90 of the Evidence Act and submits that the evidence was illegally or improperly obtained.

100 It was appropriate at the time the Homicide detectives decided that Lo was a suspect in relation to the matter and wished to question her, for her to be placed under arrest, told that she was suspected in relation to the murder, cautioned and given an opportunity to speak to a solicitor. Indeed s 464 of the Crimes Act requires that this be done.

101 In the absence of that occurring, the detectives must have been aware that any conversation would not be likely to be admissible in evidence.

102 Although the charge is a very serious charge, the importance of the evidence is not so compelling as to persuade the Court to overlook the basic obligations of fairness and propriety that the police owed the accused once they decided to interview her regarding suspicion of complicity in a murder.

103 Therefore, having regard to all the circumstances in which the conversation occurred I consider that it would be unfair to the accused to admit the evidence under s 90 of the Evidence Act. I also consider that the probative value of the evidence is outweighed by the danger of unfair prejudice to the accused pursuant to s 137 of the Evidence Act.

The video recording of Hogan having sex with the accused

104 The recording is said to be relevant evidence for the Crown to rebut the assertion made in Lo's signed police statement of 25 May 2016 about Hogan and Hughes that Lo 'never willingly had sex with either of them.'

105 The Crown maintains that the phone video recording recovered from Hogan's Samsung mobile phone Memory Card Download (movie 175443) shows Lo willingly having sex with Hogan.

106 The video recording shows three short video clips and has a date stamp of 25 April 2016. I have viewed the recording. The location for the recording is said to be Hogan's bedroom at the Maddingley premises.

107 In arguing for admission of the recording, the Crown argued that the plain meaning of Lo's police statement was that Lo was asserting that she had never had consensual sex with Hogan and that in circumstances where the Defence would suggest at trial that the relationship was sexually abusive, the Crown needed to confront that evidence.

108 It was submitted by the Crown that it showed Lo in a dominant position during sex with the deceased and that the deceased was gentle with the accused.

109 It was also argued by the Crown that a formal admission that consensual sex occurred between the accused and Hogan on 25 April 2016 would not suffice to confront the potential damage to the Crown case by assertions that the relationship with Hogan was sexually abusive.

110 Mr Cahill submitted that the recording is irrelevant and prejudicial to the accused. He submitted that the evidence should be excluded under ss 135 or 137 of the Evidence Act or because it is irrelevant.

111 Firstly, he submitted that the reference to never willingly having had sex with either man was restricted to the period while she was living with them and the sex video appeared to relate to a period before Lo had moved in to the Maddingley premises.

112 Secondly, it was argued that the question of whether Hogan ever did in fact rape Lo is not central to the question of her complicity in the alleged murder. The Crown case depends on proof that Lo told AB that she was raped, not on proof that she falsely complained of rape.

113 The falsity of any complaints by Lo of having been raped by Hogan could only have potential relevance to the credit of any account put forward by Lo.

114 Thirdly, Mr Cahill argued the Crown cannot prove that Lo is lying about having been raped by Hogan. In circumstances where the Crown do not seek to press for a trial within a trial as to whether Lo was ever raped by Hogan, and do not seek to allege that Lo's allegations of rape against Hogan are incriminating conduct, the recording is irrelevant to the fact in issue in the trial which is Lo's complicity with AB.

115 Fourthly, it was argued that if the recording has any probative value, it's probative value is outweighed by the prejudicial effect because Lo is shown in a bad light from a moral perspective and the recording would be a distraction for the jury. A jury would be deflected from giving impartial consideration to the case of the accused.

116 Ultimately, I am persuaded that the recording should not be admitted in evidence in the trial because its probative value is outweighed by its prejudicial effect.[3]

117 There is a real risk that the jury would be distracted from proper consideration of the evidence about the events giving rise to the murder of Hogan by AB and Lo's alleged role in encouraging the murder. The central issue is not whether or not Lo was ever raped by Hogan. It is whether she persuaded AB that she had been raped more than once and assaulted the night before the murder and that Hogan presented a risk to AB's child.

118 However, my ruling about the recording is subject to the qualification that the Defence may render the recording admissible by the future conduct of the Defence case.

[1] [2009] VSC 515.

[2] [2008] VSC 106.

[3] In essence the danger of unfair prejudice arising from exposing a jury to these extremely explicit sex videos is too great including the danger of distracting a jury from the central issues in the trial.