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[2018] VSC 147
General information, not legal advice.
Supreme Court of Victoria
2018-03-29
Jane Dixon J
Original judgment source is linked above.
CRIMINAL LAW - Evidence - Ruling on exclusion of self-initiated disclosures by accused to SOCIT - Whether admission precluded by s 86 of the Evidence Act or should be excluded under ss 90, 137 or Haddara v The Queen.
Evidence - Objection by Defence to detail of abuse allegations on grounds of relevance or under s 137 - Consideration of risk of opening up a trial within a trial about the credibility of accused's rape and abuse allegations against deceased and distracting the jury from the central question of her complicity in the murder.
Evidence - Capacity for admitted lies in sexual complaint against deceased's housemate to be viewed as incriminating conduct - Jury Directions Act 2015.
1 The factual background to the Crown case has been canvassed in my first ruling in the pre-trial proceedings.[1] The Defence has now raised objection to the admission into evidence of representations made by Lo on the 24 May 2016, in the period after the murder. Representations were made to a doctor in Fairfield, a nurse at the Alfred Hospital, staff at the Royal Women's Hospital ('RWH') and the SOCIT police. The disclosures to SOCIT police commenced after 2.00 pm on the same day as the murder of Hogan. The focus of the Defence objection, regarding the 24 May disclosures, is on the disclosures made to the SOCIT police.[2]
2 The Defence also objects to the admission of the content of representations in Lo's police statement dated 25 May 2016, although no objection has been raised as to the fact of a statement of complaint about rape being made by Lo. The representations on 25 May in her signed police statement are a continuation of allegations of rape and abuse, made to police on 24 May, against the deceased Paul Hogan and his housemate Peter Hughes.
3 No objection has been raised regarding statements made by Lo on 24 May (the morning of the murder) to the Crown witness and alleged accomplice AB, that she had been beaten up and raped on the previous night by the deceased, and had been raped by him before but could not say how many times. This evidence is said to establish Lo's encouragement of AB, leading to AB shooting Hogan. The Crown allege that Lo referred to Hogan as 'it' in text messages to AB at this time and did not mention that anyone else, other than Hogan, had been abusing her.
4 In 'disclosure statements' made on 24 May to police, Lo alleged that Hogan and Hughes had repeatedly raped her, taken her passport and threatened her life and that of her family in Hong Kong. Some, but not all, of those allegations were repeated in the police statement signed and adopted by her on 25 May 2016.
6 The Defence, at paragraph 8 of their written submissions, object to particular aspects of the Further Amended Crown Opening that:
The Detectives attached to the Sex Crimes Squad responded to an allegation of rape reported by Lo at the Royal Women's Hospital.
The Accused was medically examined. "No vaginal injuries or blood was noted."
Police "explored (the Accused's) allegations of a sustained sexual assault."
Police conducted a "disclosure interview" with the Accused.
In the disclosure interview, the Accused made a number of allegations of sexual assault against the Deceased which, on the Prosecution case, are lies.
7 By extension, the Defence object to the alleged lies then enumerated in the Crown opening that:
8 Also the Crown opening indicates an intention to lead evidence that:
A 25 page statement was provided by Lo to police on the 25th of May 2016. The prosecution relies on this statement in its entirety, as an admission and that the statement contained false statements, including:
That Lo left 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.
That the woman took her to 'Bull Farm' and then dropped her off at Griffith Street, Maddingley, close to a train station
That she then took a taxi to Southern Cross Station
That she then took a taxi to Canterford's home.
That she later took a taxi to the Alfred Hospital
'That she never willingly had sex with either of them'.
9 Whilst the Defence has submitted that the entirety of the 24 May disclosure statements should be excluded from evidence, their position regarding the 25 May police statement has wavered between seeking exclusion only of parts of the police statement and seeking wholesale exclusion.
10 Mr Cahill drew a distinction between the admissibility of the police statement of 25 May from the 24 May disclosure statements on the basis that the police statement was signed and adopted by Lo, whereas the earlier disclosures were not.
11 Regarding the 24 May disclosures, the Defence does not object to the evidence that Lo was taken by AB to a medical clinic in Fairfield soon after the shooting, told the doctor there that she had been raped and was referred on to the Alfred Hospital. Nor do they object to evidence of Lo's complaint of rape to Ms Balcombe (a nurse) at the Alfred Hospital. However, the Defence object to the remainder of the 24 May disclosures, pointing out that the police who spoke to Lo that day did so without any record of the conversation being acknowledged by being signed, marked or initialled by Lo, as was submitted to be required by s 86 of the Evidence Act 2008 (Vic) ('Evidence Act').
The background to the Crown's reliance on the sexual abuse complaint evidence
13 The Crown case is that Lo persuaded AB to shoot Hogan in response to complaints she made to him about Hogan, and that those complaints became increasingly pressing and urgent over the course of 23 and 24 May. The complaints to AB allegedly included allegations on 23 May that Hogan was a paedophile and that AB's young child Breanna was not safe, as well as allegations made on the morning of 24 May that Hogan had bashed and raped her since her last communication with him (around 11.00 pm on 23 May) and that he had raped her previously more than once.
14 The representations made by Lo in her disclosure statements, in the afternoon of the day of the murder (24 May 2016), and in the police statement on 25 May 2016 are alleged to include:
- Admissions to a motive to kill Hogan, because he was raping and abusing her (whether this allegation was true or not).
- Implied admissions (lies) that she was not present when AB shot Hogan because she had been in a panic trying to escape Hogan after being raped that morning and was offered a lift by a lady in a white car when Hogan reversed over her belongings in the driveway, while she was waiting for a friend to collect her ('the lady with the white car false alibi lie').
- Implied admissions that Hughes, who also lived at the same address, had raped her and abused her and was partners with Hogan in the abuse of her. These alleged lies are said by the Crown to be lies told to pre-empt or taint Hughes' capacity to incriminate her. Hughes allegedly had the potential to incriminate Lo by testifying as to her presence during the shooting. He could also testify to knowing of her collusion with AB about wanting Hogan dead, through his awareness of text messages found by Hogan on Lo's phone (the night before the murder).[4]
- Evidence said to be relevant in prospective rebuttal of an account, that there had been increasingly controlling, jealous, manipulative and abusive behaviour by Hogan in the week before the murder and an episode of rape on the morning of the murder leading to an urgency to have AB attend to help her leave Hogan. This account is contrary to the Crown's case that Lo had opportunities to leave and options to do so prior to 24 May but chose to stay. The Crown's position is that Lo was not motivated by fear or panic to need to escape Hogan. Instead, the Crown alleges that Lo wanted the confrontation between Hogan and AB to occur because of her anger towards Hogan,[5] and that her motives of anger may have been related to something other than being a victim of sexual and other abuse by Hogan.
- Evidence in Lo's police statement of being raped by Hogan on the morning of the shooting and of talking to Layton on the phone during that rape yet declining Layton's help; said to be relevant to providing prospective rebuttal of the suggestion that Lo was desperate to get away from Hogan on the morning of 24 May because of panic[6] in response to Hogan's rape and abuse of her.[7]
- Evidence in the disclosure statements of 24 May and the subsequent police statement of persistent rapes and abuse by Hogan over the period of three weeks that she lived with Hogan; said to be relevant as prospective rebuttal of the implication that a single rape occurred in the 24 hours before the murder leading Lo to panic and contact AB for help in escaping Hogan.[8] The Crown argues that to exclude Lo's account of the extent of the alleged rapes, and period of time the allegations cover ('the timeline'), would be to shut the jury out from an ability to assess her complaints to her fellow farm workers and friends that she wanted Hogan dead and as to whether this was mere hyperbole or a serious reflection of Lo's feelings towards Hogan at the time.[9] Not to have an appreciation of the extent and severity of Lo's rape and abuse disclosures before the jury would be to ask the jury to decide the issues in the trial in 'a sanitised void'. This would detract from the jury's capacity to assess Lo's failure to accept AB's offer to collect her on the night of the 23 May, and her failure to accept Rae McFarlane's or Ms Donaches's offers of a place to stay. The Crown case is that, if Lo was desperate to get away from Hogan because of ongoing sexual and other abuse she would not have declined these other options.
- Evidence in Lo's police statement that on the morning of the murder, Hogan told her and showed her that he had filmed her having sex with him on his phone, had put it on the Cloud and would post it online. This is potentially relevant to motive and to Lo's state of mind toward Hogan on the morning of the murder.[10]
- Evidence submitted to be relevant because it involves an extreme account of ongoing rapes and abuse by Hogan told to police after the murder which is said to be reflective of similar extreme things said to 'manipulate' AB into killing Hogan.[11]
15 The Defence response to the Crown Opening refers to increasingly abusive and controlling behaviour by Hogan prior to the murder. The Defence has indicated in written submissions that evidence will be sought to be adduced to show Hogan's control, jealousy, abuse and manipulation of Lo in the week leading up to the murder.[12] The Crown argues that the Defence will portray a false and selective narrative of Lo's relationship with Hogan and her state of mind and conduct leading up to the murder. Also, that if only the alleged rape the night before or morning of the murder were before the jury, this would permit an inference of sudden panic prompting Lo's urgent contact with AB; whereas she told police the rapes occurred nearly every day that she lived with Hogan.
16 The Crown implicitly submits that the Defence response and Defence document of 26 February 2018, suggesting that Lo was increasingly a victim of jealous, controlling and abusive behaviour by Hogan, has prospectively put the credibility of Lo's complaints of being a victim of abuse in issue in the trial.
17 The Crown appears to accept that, if parts of the content of Lo's 25 May police statement are led by the Crown, the Defence may be entitled to adduce other aspects of the statement in which Lo claimed that she was being abused by Hogan, whilst agreeing that it is desirable to avoid a 'trial within a trial' about whether Lo's allegations of rapes and abuse were truthful. The Crown nevertheless submits that Lo's version of events given to police on 24 and 25 May contain a number of relevant and admissible representations that should be put before the jury, including matters which affect the credibility of her account of the rapes and abuse.
18 In summary, a number of the matters sought to be led by the Crown from the 24 May disclosures and the 25 May statement go towards rebutting the credibility of a narrative expected to be relied on by the Defence, that Lo required AB's assistance to get away from Hogan who had been abusing her, raped her and beaten her that morning. The Crown case is that Lo procured the attendance of AB by firstly suggesting that Hogan was a threat to AB's child and then, with claims of rape and abuse (whether true or false), because she wanted AB to attend and deal with Hogan. Further, that Lo wanted AB to attend before Hogan could leave on 24 May so that the planned violent confrontation could occur. Also that Lo's account of rape by Hogan that morning as an explanation for her urgent messages to AB lacks credibility when considered in the light of her 24 May disclosures and the 25 May police statement alleging ongoing rape and abuse over the whole period that she lived with Hogan.
19 The Crown submits that the material from 24 and 25 May contains numerous admissions or implied admissions going to the central fact in issue in the trial, being Lo's complicity with AB in the murder and Lo's intent and state of mind at the relevant time. As well as matters going to facts relevant to the fact in issue, including credit lies which advance a self-serving narrative to police about abuse within her relationship with Hogan.
Defence arguments for exclusion of the 24 May and 25 May representations
20 The Defence argues that if the detail of Lo's account about rape and abuse by Hogan is led before the jury, the credibility and truthfulness of that account will inevitably become a contested issue between the parties 'opening up the panorama' and that a great deal of responsive evidence will need to be led by each side, relevant to the collateral issue of whether Lo was in fact raped and abused by Hogan over the three weeks that she lived with them.
21 The Defence do not dispute the admissibility of the 'lady in the white car' false alibi lie as incriminating conduct. The Crown and Defence have agreed to a pragmatic approach to the Crown's management of this lie, treating it in effect as one big lie rather than fleshing out all of the granular detail of that lie. Attempts by the parties to reach a similar approach relating to the other big lie ('the Hughes lie') have floundered due to the Defence withdrawing their concession that it is capable of being incriminating conduct.
22 The 'Hughes lie' encompasses lies told by Lo in her 24 May disclosures and her 25 May police statement, that Hughes was Hogan's partner in the sexual and other abuse of her during the time she resided with Hogan and that he also raped her. These admitted lies about Hughes,[13] are sought to be led by the Crown as incriminating conduct.
23 The 'Hughes lie' was expounded more fully in the 24 May disclosure statements than in the 25 May police statement. It has been conceded by the Defence that Lo's sexual complaints about Hughes were lies but the Defence submits that these lies only impact on Lo's credit and are not capable of being incriminating conduct. The Defence now also seeks to limit the extent of the 'Hughes lie' which may be led in evidence to that which is contained in the 25 May police statement, rather than the more elaborate allegations in her 24 May disclosures, and to argue that such references as there are to Hughes in her police statement are not allegations that Hughes sexually assaulted her and are not capable of amounting to implied admissions to complicity in the murder.
Grounds on which Defence rely to seek exclusion of Lo's complaint evidence
24 The Defence contests the relevance of all of Lo's representations to police on 24 May, and many if not all of her representations in her 25 May police statement, to the central fact in issue in the trial, being complicity in the murder. The Defence argues that in as much as the 24 May representations constitute admissions derived from police notes, they are inadmissible under s 86 of the Evidence Act. Otherwise, they submit that the 24 May disclosure statements should be excluded under s 90 of the Act or the Haddara residual discretion.[14]
25 The Defence otherwise submits that material from 24 and 25 May, whether containing admissions or implied admissions or representations as to matters of credit, should be excluded under s 137 of the Evidence Act.
26 In considering the relevance of items of evidence to facts in issue in a criminal trial, the Court of Appeal in Bauer[15] said:
Although the expression "fact in issue" is not defined in the Act, in a criminal trial, facts in issue in the proceeding will be those that bear on the existence of the elements of the offence (or offences), and behind those there will be facts relevant to those facts in issue.[16]
27 Admissions are defined in the dictionary to the Evidence Act as:
A previous representation that is -
(a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and
(b) adverse to the person's interest in the outcome of the proceeding.[17]
28 For the purpose of evidentiary rulings s 88 controls the approach to be taken by the Court in determining whether an admission is admissible:
Proof of admissions
For the purpose of determining whether evidence of an admission is admissible, the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission.
29 Where it is reasonably open to conclude that an admission was made, the evidence must be approached on the basis that the jury would accept the evidence of the admission. The evidence must be taken at its highest in terms of considering its probative value.[18]
The factual framework for the evidentiary rulings
30 In considering the exclusionary arguments raised by the Defence, it is necessary to have an understanding of Lo's utterances to police and others after the murder of Hogan. Before doing so it should be noted that, on 16 February, this year the Crown provided a document which set out certain matters that had been agreed between the parties. Importantly, one of the items on the document is agreement that the jury will not be asked by either the Crown or Defence to determine whether Lo was in fact raped, sexually assaulted or assaulted by Hogan and that no doctors or medical evidence would be called relevant to this issue.
31 It should also be mentioned at this juncture that the Defence advanced argument on a separate occasion that the 'Hughes lie' is incapable of being led as incriminating conduct despite, as I have already mentioned, having earlier conceded that it was. The reason for the change of position was said to be that it was not appreciated that various components of the 'Hughes lie', which relate to 24 May, had not been wholly adopted in the signed police statement of 25 May.
The sequence of disclosures by Lo on 24 May and 25 May
32 The following table comprises a summary of the evolution of Lo's disclosures of rape and abuse about Hogan and Hughes, prior to the making of her police statement on 25 May and a summary of the content of the police statement relevant to the abuse allegations. I have not included detail from Dr Smith's statement because the parties have agreed that no medical evidence will be called on the issue of alleged abuse of Lo.
Saw Lo at the Alfred Hospital on 24 May 2016 at 3.20 pm.
[8] Lo said she had been raped and needed to be checked.
[9] Lo said the rape had happened in the early hours of this morning. She said she was alone.
[10] She said she got here by taxi from Bacchus Marsh.
When Lo told Ms Balcombe that she had been raped, Ms Balcombe referred her to the RWH and called Cathy Smith to make arrangements to get her there.
Lo then got in a taxi and left. Total amount of time at the Alfred was 20-25 minutes.
[2] Started duty on 24 May at 2.00 pm. At that time she viewed the incident fact sheet for Ballarat.
[3] Received a notification at 4.20 pm from CASA that there had been a rape reported.
[4] Leith spoke to Reedy of Carlton CASA and then to Lo [on the phone]. Lo said she was staying in Balwyn and that she had lost her mobile phone.
[6] Lo reported that there had been a fight with both men the night before, they had packed her things; they took her passport the night before but gave it back to her in the morning.
[7] Lo reported that 'Paul' had beaten her up the night before. They started fighting verbally, then he held her down with his knees and slapped her face and choked her. Lo said that now she had bruises to her right eye and on both sides of her face, and bruises to her chin and red marks on her neck.
[8] Lo said that she had previously consented to sex with Paul but that she had been raped many times by both men and that they threatened to kill her. Lo reported that her visa expired on 4 June 2016.
[9] Lo reported penile/vaginal rape; 'Peter' had known Paul was raping her but did nothing to help her.
[10] Lo moved her belongings to the driveway and was trying to catch a taxi. Both men were leaving at that time and ran over her belongings. When they were reversing the car, the car hit her head.
[11] Lo reported that a lady drove by and offered her a lift to the train station. She accepted the lift to the train station and then called a taxi to take her into Melbourne.
Detective Senior Constable, Sexual Crimes Squad
[2] Received a call on 24 May at 5.50 pm to speak to a rape complainant, Lo at RWH.
[5] At 6.26 pm, arrived at hospital, met with Lo and DSC Robertson. Robertson took a detailed report from Lo about sexual assault.
[6] At 7.20 pm, arranged an examination by Dr Smith.
[7] At 8.05 pm, Dr Smith arrived. Thompson gave him the information she and Robertson had obtained from Lo.
[9] At 10.25 pm, the examination finished; witness spoke to Lo further.
[10] Witness received forensic items from Dr Smith.
[12] Thompson and Robertson drove Lo to an address in Balwyn.
[16] On 25 May at 7.15 am, briefed by two detectives who were attending at [REDACTED], Maddingley.
[17]-[18] On 25 May at 12.20 pm, collected Lo from Balwyn address and commenced a written statement.
[19] At the conclusion of the signed statement, Thompson was advised that Homicide police wished to speak to Lo.
Note at top: offender may be victim of shooting which occurred at the house that morning
Detective Senior Constable, Sexual Crimes Squad
[6] Thompson then asked about recent rape. Lo reported:
[8] Lo said that usually when he was at home there was something bad going on - sexual harassment, touching, she had no choice.
[9] Said she was raped again this morning for 20-30 minutes, at 6.15 to 7.15.
[13] Lo said that he ejaculated and that every time he ejaculated in her; that he had raped other girls. He raped her. He pushed her down onto the bed when she tried to get her phone.
[15] Lo had not told anyone else what had occurred.
[17] Said she wanted to see a doctor and agreed to forensic examination.
[18] While Thompson left to contact Dr Smith, Robertson had further conversation with Lo in the presence of Reidy:
[21] Lo said she left phone in taxi; went to Tim's; then took taxi to hospital.
[23] Lo went in for forensic examination with Dr Smith. As going into the office, she turned to the detectives, and said she forgot to tell them about going to the farm.
[24] After examination, Lo told Detectives about going to farm to drop off paperwork - the lady took her.
VIFM - forensic medical examination conducted at request of SOCIT
Statement of Yu Tung Lo - 25 May 2016 1512 Depositions
[11] Lo met Paul Hogan on WeChat. He wanted to learn Mandarin, wanted to be her boyfriend. She said she had a boyfriend.
[13] Paul drove to Thornbury to pick her up. She had never met him before. He promised 'no funny business'. She stayed with him and shared his bed but he had promised to stay on his side.
[15] She moved in with Paul the weekend before she started working on the farm. Lo had already met the supervisor at the farm; Paul had told her that they were 'partners' and that he loved her, to make it easier for her to get a job.
[16] Paul picked her up from Daniel's with his son. They went to the movies. He gave her a key to his house.
[20] Lo slept in Paul's bed the first night she was there. Told him that she had a boyfriend and didn't want to share a bed.
[21] Paul drove her to work and picked her up most days.
[22] Within days of moving in, she would wake up with no clothes on, the bedsheets would be dirty. She felt like something had happened to her, like she had had sex.
[23] At nights Paul would also start touching her, over her clothes and try to take them off.
[24] Within the first week of being in his house, Lo was awake and remembers for the first time him touching her, she said no, he tried to convince her, she kept saying no, he became abusive, said mean things, took her clothes off and pinned her down on the bed. Forced his penis into her vagina. Took about 20-30 minutes. She was screaming and yelling, he covered her mouth. Paul didn't have a condom. She was scared, felt like she needed the job at the farm.
[25] Another time, within two weeks of being there, she went to bed earlier, he followed her into bedroom. He had taken her pants off and pushed up her shirt, put his knees on her arms, pulled out a vibrator, turned it on and stuck it in her vagina until she had an orgasm.
[27] This would happen every other day. She would tell him she didn't want sex, and he would start touching her. He said that if she didn't like it she could move out. But she couldn't. When he was raping her, she would yell out but Peter didn't do anything. Paul and Peter were 'partners' in this.
[28] Three or four times, she would wake up in Peter's bed. Can't remember going up to his room, or having sex, but felt discomfort in her vagina like she had had sex. She asked Paul about this but he said he didn't know anything.
[30] Paul told her that she should break up with Danny.
[31] Paul got angry with her for sending a text to Danny. He came home to check on her again during his shift. When he came home again after work they fought again, he threatened to kill her and stab her. He grabbed a knife. He pushed her against the wall and pushed his arm to her neck. She struggled out and went to bed. He came in, wouldn't let her sleep, he was talking, then smashed her phone.
[34] She talked about Paul to people at the farm. They joked about him. But she didn't tell them about the passport and she had no visible injuries.
[35] 18 May - she didn't have her phone; Paul had taken it to the shop.
[36] She woke up before 6 am, Paul was touching her. He covered her mouth and then sat on her so she didn't move. Then he raped her.
[38] Later that day Paul gave her the phone back.
[39] The next day, she synced her phone with her computer and saw that it had already been synced when she was not in possession of her phone.
[40] Paul got her phone fixed on Saturday. It took all day.
[42] She never had sex with him willingly. He was angry the morning of the 23rd, told her to get out of the house but kept changing his mind. She sent Facebook messages to Christopher and Jacob to come and pick her up and take her to work but they had both started earlier. Paul threatened her visa situation. He said she could live there until she flew out on 4 June if she would stop talking to Christopher and have sex with him.
[43] That afternoon, Christopher dropped her off from work. Paul was jealous.
[44] Conversation between Lo and Paul about Lo leaving or staying with Paul. Paul told her that a marriage celebrant was coming. She said she didn't want to marry Paul. Paul then left to work, around 5.00 pm.
[45] While Paul was at work, she was looking up places to live. Lo asked Chris to ask Rae if Lo could live with them.
[46] Lo spoke to someone on Airbnb, said she was staying with someone who was abusing her. Airbnb lady said she wanted to help but was in Sydney until Thursday and there were people in the house.
[47] Paul came home. Told Lo to behave like they were a happy couple (when celebrant came) and let him do the talking.
[50] Paul and Lo had a fight after celebrant left. She said she was leaving the next day, and started packing. It became a physical fight.
[52] Paul grabbed her phone and unlocked it, started reading her messages. She asked for her phone back and asked if she could call Daniel to come and get her. She tried to grab her phone back and they had a scuffle and she ended up on the floor. She was calling for Peter but he didn't come down. Peter finally came downstairs.
[53] Peter and Paul went into the kitchen and Paul showed Peter her text messages.
[56] She had her jacket and shoes on but wouldn't leave without her phone. He said she could stay and leave tomorrow.
[57] She stayed. She went to bed with her shoes and jacket on.
[58] While she was in bed, he came over and said mean things to her.
[61] He sexually abused her in the morning in bed.
[62] He said she could have her phone back if she had sex with him.
[64] There was a message from Jacob asking if she needed to be picked up.
[65] He raped her. Jacob called her phone while he was raping her and she picked up. She said she was not okay and that she would not be going to work. Paul was having sex with her while she was saying this.
[66] He finished, ejaculated, and tried to take the phone. She kept the phone and fell off the bed, bruising her back.
[68] She went downstairs and started to put her stuff in the driveway.
[69] Paul said mean stuff about her while she moved her stuff, that she's dirty, that she's got STDs.
[70]-[71] While she was moving her stuff out to the driveway, Paul showed her some videos and photos on his phone. The video showed that she was not naked but having sex with someone, sitting on someone rocking back and forth ... having her singlet pulled up so the lower part of her breasts were showing She doesn't remember them being taken. She assumed it was Pauls bed and her in the video. There were also some photos of her sleeping, with no pants on. She doesn't know how they were taken.
[71] A description is given of what she saw of the video. She can't remember him taking it. She was scared about him having the videos.
[74] Rae called about Lo not going into work. Paul was shouting in the background.
[76] She was standing in the driveway and Peter and Paul got into the car.
[77] They reversed the van out of the driveway over her stuff.
[78] Some of her stuff was broken. A lady drove by at that moment and told Lo to get in her car.
[81] Lo was panicked because she had been raped that morning.
[83] She didn't look back at what they were doing.
[85] Lo was upset and scared, worried about the farm, and had to leave her paperwork at Bull Farm.
[86]-[108] The remainder of the police statement refers to going to the train station, getting into taxi, going into the city, going to Tim Canterford's house and going to the hospital.
Defence objection to admission of the 24 May disclosures and 25 May police statement
34 The Defence argues that soon after Lo left the scene of the shooting with AB, police had reason to suspect her involvement in the murder of Hogan. The Defence provided a chronology of police involvement,[19] once the shooting occurred.
35 The shooting occurred at approximately 8.12 am. It is not disputed that Lo was seen by witnesses to gather various of her possessions from the ground after AB shot Hogan and that she then left with AB in his car.
36 Hughes had been present in Hogan's van with him when Hogan was shot so he immediately became an important witness for police who attended the crime scene.
37 The informant in the Homicide investigation DSC Scharper attended the crime scene at 10.12 am and, according to his notes, received a briefing at 10.15 am.
38 Hughes provided information to police at the scene that Tracey (a reference to the name Lo went by) an Asian female lived at the house and was dating Hogan. The notes also record:
Asian (female ) with Danny;
Daniel (attend ) and (possibly) shot;
Decamped down (Griffiths street) from scene;
Housemate Peter Hughes knows Tracy.
39 At 11.18 am DSC Scharper's notes record information derived from Peter Hughes:
Last night a marriage celebrant attend ...(deceased) has (observed) SMS from Tracey phone to a 'Daniel' saying I want him dead etc.
40 DSC Scharper's notes at 11.18 am then record neighbour, Ms Catalino-Firth as saying:
Asian female present at time of shooting - after shooting put bags in back seat of car and female and male shooter drove off.
Tracey - Yu Tung Lo (8/11/89) [mobile phone number];
(Deceased) showed Peter 'I want him dead' 'I want him gone'.
And at 12.20 pm from Rae McFarlane (a witness in the trial and employment supervisor of Lo):
Tracey called in sick today
[mobile phone number]
At 1.10 pm DSC Scharper's notes make reference to a photo of Yu Tung Lo - Tracey.
At 1.44 pm McFarlane completed a statement that confirmed Tracey's name was Yu Tung Lo and her phone number was [mobile phone number].
At 2.00 pm a Crime Scene Examiner at the deceased's address located envelopes with AB's Thornbury address and the informant recorded AB's name and date of birth with reference to the LEAP system.
42 Peter Hughes' police statement was signed at 2.18 pm, and it included information that; Tracey (identified by McFarlane as Tracey Lo) had been living with Hogan, at Hogan's home, and was standing outside the address with her belongings waiting for someone to collect her and her belongings when a male person arrived and shot Hogan, and that after the shooting she got into the car with the male.
43 Police identified Lo's phone number and accessed her subscriber data, leading them to identify phone contact between Lo and AB and Lo and Tim Canterford (another witness in the trial).
44 The informant gave evidence at committal that Lo was always considered a person of interest having lived at the address[20] and that AB was considered a suspect as a result of call charge records with Lo.
45 Despite the above information gathered by police in connection with the homicide investigation, Lo first spoke to police of her own volition on the afternoon of 24 May 2016 as a result of her presentation to hospital and CASA staff. She self-reported to police that she was a victim of sexual assaults and abusive and controlling behaviour by 'Paul' (Hogan) and 'Peter' (Hughes). This report was made following her departure from the crime scene with AB, her attendance at various locations with AB, her visit to Tim Canterford's address in Balwyn where she left her belongings, her visit to a medical clinic in Fairfield, her attendance at the Alfred Hospital and her attendance at the RWH.
46 Having been referred to the RWH from the Alfred Hospital, and having seen a social worker (Catherine Reidy), Lo then met with Detective Senior Constable Leith of Ballarat SOCIT at 4.20 pm. According to Leith's statement, after a conversation with Lo, she checked the incident fact system for the Maddingley address and saw that an incident was recorded there earlier that day.[21]
47 At 4.55 pm Leith advised DSC Midson of the Homicide Squad that Lo had reported a sexual assault at the same address earlier that day. Leith's notes show that Midson advised her to continue with the sexual assault statement.
48 At 4.55 pm DSC Scharper's notes record Lo stating she was raped by the deceased:
SOCIT Jenny Leith liaising with IML SOCIT to treat as legitimate...stated she has lost her phone in the course of packing this am contrary to what CCRs dictate, awaiting release of Lo following report of rape, crime scene [REDACTED] secured in line of rape alleg. All keys retained - Peter Hughes directed not to go home.[22]
49 DSC Leith arranged the attendance of DSC Hannah Thompson and John Robertson to speak to Lo about the rape allegations. Leith's notes record that Thompson was briefed and given 'information known'. Thompson's notes at 5.50 pm record: 'offender for rape is possible victim of shooting this morning'.
50 At 7.10 pm DSC Scharper's notes record a briefing from Hatt (another Homicide member). His notes at this time include:
- Briefing from Hatt;
- Sex Crimes;
- Hanna Thompson and John Robertson;
- Left (Bacchus Marsh address) @ 800;
- Rape master bedroom;
- Packed and left;
- Tried running over in van;
- Witnesses by unknown female passer by;
- Same passer by picked her up;
- Drove her to Bacchus Marsh (railway station).
51 The statements of Detectives Robertson and Thompson show that, after speaking with Lo on 24 May (the 24 May disclosure conversations), she was driven back to Tim Canterford's address by them at her request.
52 Lo telephoned DSC Thompson the next day at 10.48 am and sought police help with accommodation and said she was prepared to make a formal police statement (about the matters disclosed on May 24). She subsequently commenced making a written statement as a victim of a sexual assault at 12.55 pm on 25 May and this was finalised at 10.10 pm that day, at which stage she was walked around to the custody area and introduced to the informant DSC Scharper. Lo then declined to participate in answering questions about the shooting of Hogan, having been formally cautioned and granted access to legal advice.
53 It was pointed out by Mr Cahill that police, who spoke to Lo about her rape allegations, did not record any questions touching on the fact of the shooting of Hogan having taken place at his address that morning. Nothing was mentioned by Lo about the shooting.
54 The Defence submitted that the informant DSC Scharper had evidence pointing to Lo as a suspect or person of interest in respect of the Homicide, even before such time as Lo began voluntarily engaging with the SOCIT police as a person reporting sexual assaults by Hogan and Hughes. It was implicitly suggested by Mr Cahill that these circumstances resulted in unfairness to Lo, in terms of her unsigned oral communications to police on 24 May because her disclosures of sexual assaults and abuse by Hogan and his housemate Hughes gave rise to information that is now relied on by the Crown as admissions or implied admissions. Lo was not cautioned until 25 May after she was introduced to the informant in the Homicide investigation.
The application of s 86 to the 24 May disclosures
55 Mr Cahill argues that the entire content of the 24 May disclosures to police are not admissible because of a failure to comply with Section 86 of the Evidence Act. Section 86 provides:
(1) This section applies only in a criminal proceeding and only if an oral admission was made by an accused to an investigating official in response to a question put or a representation made by the official.
(2) A document prepared by or on behalf of the official is not admissible to prove the contents of the question, representation or response unless the accused has acknowledged that the document is a true record of the question, representation or response.
(3) The acknowledgement must be made by signing, initialling or otherwise marking the document.
(4) In this section, document does not include -
(a) a sound recording, or a transcript of a sound recording; or
(b) a recording of visual images and sounds, or a transcript of the sounds so recorded.
56 The reliance by the Defence on s 86 is taken to be an assertion that in so far as Lo made oral admissions to an investigating official or officials, (in this case the SOCIT police Leith, Thompson and Robertson who were purportedly investigating the rape and abuse allegations, not the murder), in response to a question put, or representation made by the official, documents prepared on behalf of the relevant official(s), (their notes of Lo's disclosures) are not admissible to prove the contents of the question, representation or response unless the accused had given acknowledgment (by signing, initialling or otherwise marking the document) that the document was a true record of the question, representation or response.
57 The disclosure notes were never acknowledged by being signed, initialled or otherwise marked by Lo. The notes are presumably said by the Defence to contain admissions made by an accused to an investigating official in response to a question put, or representations made by the official.
58 It was never specifically explained by the Defence how the notes could be said to be a response to 'a question put or representation made by the official' or how they could be said to be 'a record of oral questioning'.
59 Presumably the Defence suggests that information proffered by Lo, about the sexual assaults and abuse, is likely to have been in response to questions asked by Leith, Thompson and Robertson; whose role was to facilitate Lo's account of her sexual offence allegations. However, the factual basis for that submission was not fully fleshed out. The evidence before me indicates that Lo, of her own volition, proffered her complaint and then expanded on that complaint to police from the specialist sexual offence police.
60 The Crown submitted that the 24 May disclosures were not rendered inadmissible by s 86 of the Evidence Act.
61 This was firstly because s 86 would only exclude the notes themselves from evidence, rather than vive voce evidence based on the notes. Also because the Crown submitted that it is clear that section 86 is not directed to voluntary self-disclosures. It is directed to records of interview.
62 The Crown referred to the Explanatory Memorandum in relation to s 86 of the Evidence Act as stating that:
makes inadmissible in a criminal proceeding any document (other than a sound or video recording) purporting to be a record of interview by an investigating official with a defendant unless the defendant acknowledged the document as a true record by signing or otherwise marking it. The purpose of this clause is to limit the circumstances in which documentary evidence, such as a statement of evidence containing an admission, is used to prove the contents of the statement.
63 The Crown submitted that the effect of s 86 is that the documentary record of an oral admission, in response to official questioning of an accused (when a suspect) will not be admissible in criminal proceedings unless the accused has acknowledged the record as a true record by signing it, initialling or otherwise marking the document. If the section applies in any given case, it is the document prepared by or on behalf of the official which would not be admissible to prove the representation. Oral evidence of what was said would still be admissible.
64 The Crown further submitted that s 86 would not apply to exclude such a record from being admitted unless the representations were in fact 'admissions' and the person was at least a suspect during formal questioning (akin to a record of interview) at the time the representations were made to the police.
65 Referring to the passage from the Explanatory Memorandum, the Crown submitted that accepting the possibility that Lo's representations on 24 May fit within the meaning of 'admission' in of the definition section of the Evidence Act, s 86 is aimed at circumstances other than the present, where the representations were brought about by Lo seeking out the police, of her own volition, as an alleged victim of rape.
66 No specific argument was addressed by the parties as to whether the 24 May previous representations by the accused do have the character of being admissions within the meaning of the Evidence Act or whether implied admissions are intended to be caught by s 86.[23]
67 The question whether the 24 May representations constitute admissions or implied admissions would ultimately be a question for the jury if the evidence were admitted in the trial but in my view it is open to interpret them as such.
68 Acting on the assumption that the notes of the disclosures on 24 May contain a mixture of direct admissions, adverse to the interests of the accused in her trial for murder, and implied admissions I nevertheless accept the Crown's argument that s 86 is directed to the admissibility of the document containing the alleged admissions, not oral evidence of what was said.
69 I also accept that s 86 is aimed at circumstances where there is a nexus between the subject matter under investigation in the 'oral questioning' and the matter to which any admissions may be expected to arise.
70 Any ambiguity attaching to s 86 may be resolved by adopting a purposive construction giving effect to the title to the provision,[24] 'Exclusion of records of oral questioning' suggesting that the provision is designed to exclude admissions made when the investigating official is embarking on oral questioning about the subject matter that any potential admission might be relevant to. The words 'in response to a question put or representation made by the official' narrow the meaning of the provision when interpreted alongside the title to the provision and in light of the breadth of other exclusionary provisions contained in Part 3.4. The Explanatory Memorandum cited by the Crown also aids this construction of s 86.
71 In the case before me, the subject matter of Lo's disclosures to the SOCIT police was her allegations of abuse and rape by Hogan and Hughes, not Lo's complicity in a recent murder.
72 Even if I am wrong in my view that the section implies a nexus between the subject matter under investigation in the 'oral questioning' and the matter to which any admissions relate, I do not think that the interpretation of what is required by s 86 extends to a requirement for the notes of admissions to be acknowledged unless the notes were prepared as part of an oral questioning. I have not been provided with evidence sufficient to satisfy me on the balance of probabilities that the notes made by the police members were prepared in response to an oral questioning, (questions put or representations made by the investigating official), rather than simply notes made of information voluntarily proffered by the accused. I therefore do not think that s 86 has any application to the 24 May disclosures.
The application of s 90 to the 24 May disclosures
73 Section 90 provides:
In a criminal proceeding, the Court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if -
(a) the evidence is adduced by the prosecution; and
(b) having regard to the circumstances in which the admission was made, it would be unfair to an accused to use the evidence.
74 Section 90 focuses on 'the circumstances in which the admission was made' and does not require exclusion of the evidence but allows the Court to exercise a discretion to exclude the evidence if use of the admission by the Crown would be unfair to the accused. It was held in Em v R[25] to be similar to the common law discretion to exclude evidence espoused in R v Lee.[26]
75 The Defence bears the burden of persuading the Court that the evidence should be excluded pursuant to the exercise of discretion under s 90.[27] Section 90 is not specifically directed to balancing policy considerations or considerations of police impropriety with considerations of fairness. The Defence may succeed in having evidence of an admission excluded under s 90 even when arguments have been unsuccessful under other provisions such as ss 84, 85, 86 or 138. Section 90 has been described as a 'safety net'.[28]
76 Section 90 may operate on admissions falling outside the legislative requirements for tape recording interviews with suspects. Reliability may be a consideration for the applications of s 90 but unreliability of the admission is not required to be shown.
77 The Crown submitted in response, to the Defence argument that it was unfair to admit the 24 May disclosures, that Lo was not 'a suspect' at the time the disclosures were made to Leith at approximately 4.20pm on 24 May 2016. These disclosures were made when Leith returned the call from CASA and spoke to Lo, who then made various representations as a victim of sexual assault. Leith then met with Lo and arranged for her to speak to Robertson and Thompson. Lo continued to confirm her allegations to Robertson and Thompson on 24 May. The Crown submitted that the Defence has not provided any sound basis for submitting that the circumstances of Lo's voluntary disclosures on 24 May make the use of this evidence at her trial unfair.
78 The Crown submitted that the case of EM v The Queen,[29] to which the Defence has referred, did not assist them because Gummow and Hayne JJ took a very restrictive view of the operation of s 90 even where conduct had occurred affecting the reliability of the admission(s) under consideration. Gleeson CJ and Heydon J also viewed the operation of the provision narrowly, seeing no unfairness in the police knowingly taking advantage of the defendant's mistaken belief that anything he said could not be used in evidence against him and in their decision not to administer a full caution. In that case, the covert recording of a conversation did not preclude the admissibility of the evidence, although the accused would not have spoken to police if he knew that the conversation was being recorded. In considering s 90, the High Court concluded that the admissibility of this evidence was not 'unfair'.
79 The Crown submitted that, in the case at hand, Lo was not operating under any misunderstanding. On the contrary, she voluntarily set out to make contact with the authorities for the very purpose of making the sexual abuse disclosures and it was within this context that they were received by DSC Leith from Ballarat SOCIT, who spoke to Lo after receiving a message to call the CASA office in Carlton at approximately 4.20pm. Members Robertson and Thompson attended upon Lo at the RWH shortly after 6.00 pm. The Crown submitted that Lo's disclosures to the sexual crimes squad were voluntary, purposeful and made at her own instigation.
Consideration of s 90 as a basis for excluding the 24 May disclosures
80 As already stated, it is open to conclude that the 24 May disclosures contain a mixture of admissions and implied admissions relevant to Lo's complicity in the murder of Hogan. The police notes of what she told them were not signed or adopted on 24 May and the subsequent police statement did not confirm all of the disclosures allegedly made on 24 May.
81 In considering the exercise of discretion to exclude the 24 May disclosures it is relevant to consider that what Lo told police on 24 May was the result of her self-initiated report of sexual abuse to the SOCIT police even though at that time Homicide police were also investigating Lo as 'a person of interest' in connection with the shooting of Hogan. Lo was not cautioned by the SOCIT police, regarding anything she might disclose of relevance to the murder investigation but on the evidence before me I am not satisfied that it was incumbent on the SOCIT police to administer a caution in respect of a parallel homicide investigation that was not within their purview.
82 The question as to whether the 24 May disclosures should be excluded in their entirety under s 90, on the basis of unfairness to the accused, focuses attention on the circumstances in which the admissions were made.
83 Section 90 has often been considered where covert taping of suspects has occurred with police being involved in putting in place or supplying the arrangements for covert taping or in circumstances where the complainant in relation to an offence makes a pre-arranged monitored 'pre-text' call to the accused, deliberately raising accusations with the accused.
84 In R v Burton,[30] the New South Wales Court of Appeal considered an appeal from the trial Judge's decision to exclude evidence of a pretext conversation between a complainant in a sexual offence and the accused. The Court vacated the trial Judge's ruling excluding the evidence and held[31] that the complainant was not acting as an agent of the police, because the admissions by the accused were not elicited by police, but were proffered freely to the complainant.
85 In WK v The Queen ('WK'),[32] the complainant recorded conversations with the accused at the request of the police but the Court of Appeal did not view the complainant's behaviour in recording the conversation as an act of the police or the State and held that there was no error in the trial Judge's refusal to exclude the evidence obtained through the pretext call. Reference was made to the summary of relevant propositions in Pavitt v The Queen,[33]which also concerned a pretext call. In that case, police had guided the complainant's questioning of the accused by passing notes during the recorded pretext conversation. An important consideration was the extent to which the accused's responses were elicited by police or were the product of the functional equivalent of an interrogation, as distinct from being freely provided by the accused in response to the complainant.
86 In WK, Harper JA made reference to the High Court's decision in Pavic,[34] which involved consideration of a police 'sting operation' following upon the accused maintaining his right to silence in formal questioning. The police arranged for the accused's friend to engage the accused in conversation about the crime under investigation whilst covertly recording him. The accused spoke freely to his friend. Brennan CJ said:
the investigation of a crime is not a game governed by a sportsman's code of fair play. Fairness to those suspected of crime is not the giving of a sporting opportunity to escape the consequences of any legitimate and proper investigation or the giving of a sufficient opportunity "to invent plausible falsehoods".
87 In the case before the Court, Harper J noted that the complainant's phone call to the accused flowed on from their earlier communications with one another and the police did not exploit their relationship with the complainant to extract a statement from the accused. Therefore, the trial Judge was right to admit the evidence.
88 Apart from pretext conversations the authors of Uniform Evidence in Australia,[35] suggest that at common law the fairness discretion often arises where a challenge to voluntariness fails but the process exposes potential unfairness in using the confession against the accused. However, they opined that in the Uniform Evidence Acts the generality of s 90 prevents an exhaustive description of the circumstances in which it might have application. Intellectual or psychiatric impairment, youth or special vulnerability or obstacles to communication such as intoxication or a language barrier might be factors affecting the fairness of admissions, invoking s 90.[36]
89 In DPP v Hicks,[37] Kaye JA applied s 90 to exclude evidence of a plea of guilty to certain offences because the accused's plea was affected by a threat of adult imprisonment, after having been raped in prison in the past. The accused would not be able to testify about this without revealing his previous experience of adult imprisonment before the jury.
90 On the other hand, a narrow effect was given to s 90 by the New South Wales Court of Appeal in JB v The Queen.[38] The Court, relying on Em v R did not consider that evidence of admissions should have been excluded when made by a vulnerable accused to a support person after having refused to answer police questions and then being offered access to the support person for a private conversation. This was in spite of the fact that the support person was provided under a regulatory regime. The Court below had treated the admissions as 'unguarded incriminating statements'. The Court of Appeal considered the situation may have been different if the accused had been tricked or cajoled into making the admissions.
91 In Tupou,[39] Barr J considered an application to exclude statements made after a fatal accident by a driver who was alleged to have collided with a motorcyclist after he failed to stop at an intersection. The accused did not dispute that he told lies to police who attended the collision, including stating that he did in fact stop when on board CCTV proved the failure to stop. The lies were relied on as implied admissions. Counsel argued that the process by which the admissions were obtained involved a significant infringement of the accused's rights. His Honour declined to exclude the implied admissions, stating that the accused had failed to satisfy him that admission of evidence would render the trial unfair.
92 In R v Moustafa,[40] T Forrest J considered the application of s 90 to voluntary statements made by the accused, who had brought the co-accused to hospital with injuries from a shooting. The accused's statements to police dissociating himself from the events of the shooting and from the car used to transport the co-accused to hospital were relied on by the Crown as implied admissions and as lies affecting the credit of the account given in a later record of interview. It was not disputed that the accounts given to police were false. T Forrest J noted that a court considering the exercise of discretion will focus on the effect of the unfairness on the accused, not necessarily on the alleged impropriety in the obtaining of the admission(s). His Honour accepted that the first police member who met with the accused failed to caution him notwithstanding that the accused was technically under arrest at the time, but observing that, 'unfairness is a nebulous concept that defies exhaustive description' his Honour declined to exclude the conversation under s 90 of the Act. His Honour found that the accused freely gave his exculpatory version of events to the police member, having waited at the hospital for police to arrive, and at no stage attempting to leave.
93 The case before me does not involve the same considerations that may arise when s 90 is applied to pretext conversations or covertly recorded conversations. It also does not involve an accused with special vulnerabilities.
94 In considering the fairness of admitting the 24 May disclosures it is relevant that much of the thrust of those disclosures was confirmed in the 25 May signed statement, with some differences of detail especially in relation to the extent of the allegations about Hughes, who was known by Lo to be in a position to be able to contradict her account.
95 It is significant that in the case before me the accused's account to police appears to have been initiated by her and not to have been elicited by the SOCIT police nor engineered by police who were tasked with investigating the homicide.
96 The disclosures to the SOCIT police were made voluntarily outside the context of formal questioning and without reference to the fact of any shooting having occurred at the Maddingley premises. Although Lo was speaking to police, those police were tasked with obtaining her sexual complaint and not with investigating the homicide. Lo was not cajoled or tricked into making the allegations she made.
97 There is nothing about Lo's personal circumstances or background or the treatment of her by police that leads me to conclude that it would be unfair to admit the evidence of admissions made to police on 24 May 2016. I therefore decline to exclude the evidence under s 90.
98 Mr Cahill also referred to the residual Haddara discretion as a basis for excluding the entirety of the 24 May disclosures.[41] I also do not think that the trial will be rendered unfair in the sense referred to in Haddara, by the admission of the 24 May disclosures.
Consideration of Defence position regarding 25 May statement and the detail of the allegations of rape and abuse in Lo's complaints proffered on 24 and 25 May
99 The most recent position put forward by the Defence is that they do not object to evidence being led that Lo made a signed statement to DSC Thompson on 25 May, alleging that Hogan sexually assaulted her while she was living at his home, but they resist the contents of that statement being led in evidence.[42] The Defence submitted that the Crown had failed to identify the relevant purposes for which Lo's statements, complaining of abuse evidence, were being led.
100 The Defence submitted that the 24 May disclosures and the 25 May police statement, which contain a detailed account of Lo's allegations of ongoing rape and abuse by Hogan and Hughes, would create 'a high danger of unfair prejudice which exceeds the probative value of the evidence, the danger being a speculative trial of rape allegations being run within the murder trial' in the absence of Hogan as an available witness. The jury's attention would be needlessly diverted from the central issues in the trial. The Defence maintain they have always sought to avoid the detailed rape and abuse allegations made by Lo against Hogan on 24 May and 25 May being led by the Crown because of the high risk of unfair prejudice to Lo's prospects of receiving a fair trial.
101 The Defence will seek to adduce some evidence showing the basis of Lo's complaints about Hogan's controlling and abusive behaviour in a limited way, as set out in their written submissions,[43] because the absence of any such material creates unfairness for Lo if the jury only heard evidence of Lo's angry reactions to the provoking behaviour of Hogan (as observed by Hughes or as can be inferred from her online conversations with others) without any context about the incidents that provoked her outbursts.
102 The Defence also argued that, whilst the Crown had earlier disclaimed reliance on the Hogan rape allegations as incriminating conduct because it was 'a bootstraps argument', the Crown were now wanting to lead the entirety of the Hogan rape allegations in the 25 May police statement as admissions and as false statements,[44] and asserting that the jury needed to make a 'qualitative assessment' as to whether Lo was lying about Hogan raping her over the course of their relationship. This created a risk of the jury using lies about rape by Hogan as implied admissions even though not expressly relied on in that way.
103 If the Crown wished to pursue a trial within a trial regarding the Hogan rape allegations, the Defence submitted that the Defence would be forced to respond by leading evidence of Hogan's bad character including his prior conviction and imprisonment for rape in 1998 and his past domestic violence towards his ex-girlfriend, the witness Phelan,[45] and evidence of Hogan's exploitation of Asian girls who were wanting visas to stay in Australia; as referred to in the statements of Hughes and others.[46]
104 The Defence argued that the only parts of Lo's police statement that are capable of amounting to implied admissions are those contained in the Crown document titled, 'Lies - Incriminating conduct − A pragmatic approach' provided on 1 March 2018 (excluding the Hughes lie). The Defence reiterates objection to admission of Lo's representation in her police statement that, 'I never willingly had sex with either of them.'
105 If the Crown is to lead any of the content of the 24 May disclosures (presuming those disclosures are admissible) or any of the content of the 25 May police statement, they need to be explicit about what is sought to be led and the purpose of the evidence so that the Defence knows what case it has to meet.
106 The Defence embraced comments made by the Court in the course of earlier pre-trial discussions that the focus of the issues for trial was not about whether Lo told lies about being raped by Hogan but whether she intentionally encouraged, assisted or directed AB to kill Hogan, by telling AB that she had been beaten and raped. At that time it was suggested that a pragmatic approach should be adopted by the parties to managing the evidence of the two big lies; 'the lady in the white car' false alibi lie and the 'Hughes lie' and that it was desirable to avoid a trial within a trial about whether Lo's allegations of rape by Hogan were true or false. Whilst the parties were invited to see whether an agreed approach could be put forward regarding these matters, this has not been wholly successful.
107 The Crown fears that the Defence will present a selective picture of Hogan's abusive and controlling behaviour, in circumstances where if the jury were to hear the additional fact, that Lo complained to police on 24 May of being bashed and raped by Hogan that morning, that 'sanitised' complaint would appear more credible. The Crown would be hampered in being able to impeach the credibility of this 'sanitised account' by adducing the less credible aspects of her detailed rape and abuse narrative.
108 The Crown submit that they will not seek to prove that Lo's allegations of rapes and abuse by Hogan are false, whilst not accepting them to be true. However, the Crown submits that the extreme nature of Lo's allegations to police, about the abuse by Hogan, is relevant to the jury's assessment of whether Lo provided a similarly extreme account to AB in order to encourage him to kill Hogan. (I note that this latest argument potentially invites a form of tendency reasoning).
109 One of the complexities that has arisen for consideration is that, although the Defence disavows seeking to establish that Lo was in truth a victim of abuse and rape by Hogan, there is partial reliance on a narrative that Lo was a victim of controlling, jealous and abusive behaviour by Hogan.
110 It is against this background that I am called to apply s 137 to the representations made by Lo on 24 May and in her 25 May police statement. I must also consider the Defence application for exclusion, in the light of steps available under s 136, to limit the use of certain evidence and judicial warnings that may be given.
The argument under s 137
111 Section 137 mandates exclusion of evidence sought to be adduced by the Crown where the danger of unfair prejudice outweighs the probative value of the evidence:
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.
112 Once the weighing exercise has been completed, if the Court is of the view that the assessment favours exclusion of the prejudicial evidence, then there is no discretion to be exercised and the trial Judge is obliged or bound to exclude the evidence.[47]
113 In R v Shamouil,[48] Spigelman CJ explained the concept of unfair prejudice:
There is now a considerable body of case law in this Court which emphasises the fact that the assessment of this element requires any prejudice to be unfair. There must be a real risk that the evidence will be misused by the jury in some way and that that risk will exist notwithstanding the proper directions which it should be assumed the Court will give.
114 His Honour referred to the approach of McHugh J in Festa v The Queen:
It is only when the probative value of the evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or contents of the evidence may influence the jury or divert the jurors from their task.[49]
116 The evidence need not be without ambiguity to be capable of being relied on by the Crown if it is capable of giving rise to the inference put forward by the Crown.[52] Therefore the use to which the evidence is to be put by the Crown is an important aspect of the weighing exercise required under s 137.
117 The Crown submitted correctly that evidence is not unfairly prejudicial merely because it makes it more likely that the accused will be convicted. They submitted that what is meant by the risk of 'unfair' prejudice, is that the fact finder will use the evidence to make a decision on an improper basis, logically unconnected with the issues in the case.
118 In the case before me I consider that there is a very real danger of unfair prejudice to the accused, if all of the detailed content of the 24 May disclosures and 25 May police statement were led in evidence. The risk of unfair prejudice arises from the following factors:
- The intricacy and detail of the narrative about Hogan's abuse and rapes alongside the admitted lies about the lady in the white car and the Hughes lie with the risk such that the focus of the trial may shift to consideration of whether Lo is lying about Hogan having raped her rather than whether she encouraged AB to kill Hogan, thereby creating a significant distraction for the jury.
- The difficulty for Lo that, if she is unable to adduce any evidence to explain her outbursts of angry verbal abuse towards Hogan and her strong complaints to others about hating him and wanting him dead, she may be viewed unsympathetically by the jury.
- The risk that if the jury consider that Lo is lying about the rapes and ongoing abuse by Hogan they may be inclined to treat those lies as implied admissions regardless of the Crown's disavowal of reliance on the Hogan rape narrative as incriminating conduct. This risk is elevated if the Hughes lie is able to be led as incriminating conduct.
- The risk that if the jury consider that Lo's account given to police of the rapes and abuse by Hogan is false and she deliberately lied to police for her own purposes they can apply a kind of tendency reasoning and more readily infer that Lo deliberately lied to AB about Hogan being a paedophile and Breanna not being safe and about being bashed and raped by Hogan, in order to manipulate AB for her own purposes. This risk would need to be addressed by a strong anti-tendency warning since the Crown have not put it forward overtly as tendency evidence.
- The fact that the signing of the police statement may be regarded as an act of perjury, invoking the need to warn the jury about other criminal conduct.
119 Whilst much of the evidence in the 24 May and 25 May representations is highly probative, as evidence of motive or as incriminating conduct, other aspects of the evidence are of lower probative value; being only relevant to impeaching the credibility of Lo's narrative that Hogan was jealous, abusive and controlling.
120 Some of the risk of unfair prejudice can be addressed by remedial warnings or by limiting directions under s 136. However, the risk of unfair prejudice attaching to other aspects of the evidence, when weighed against its probative force and when considered in the light of all of the evidence in the trial is such that that exclusion is required. This approach is necessary to ensure the overall fairness of the trial, to avoid the jury misusing the evidence in the 24 May disclosures and the 25 May statement and being distracted by excessive focus on the truth, or otherwise, of Lo's allegations of rape against Hogan.
121 To this end, having performed the required balancing exercise and taking into account my power to give limiting directions under s 136 or remedial warnings, the following evidence which is currently subject to objection by the Defence is evidence for which the probative value is not outweighed by the danger of unfair prejudice.
122 From the 24 May disclosures made to the police; the fact that detectives attached to the Sex Crimes Squad responded to an allegation of rape reported by Lo at the RWH, and attended and received Lo's disclosures of rape and abuse over some hours. They did not receive or seek information about the Homicide from Lo.
123 That Lo told them she has been staying with Hogan and 'Peter' (referring to Hughes) between 29 or 30 April 2016 until that day and she was raped many times by them in the same house as well as being raped (by Hogan) that morning. They took turns and it did not matter how much she yelled. They threatened to kill her and her family back in Hong Kong if she told anyone. That she and Hogan fought last night and she was assaulted and on that morning Hogan ran over her belongings in the driveway.
124 The account of the lady in the white car stopping and telling her to jump in the car and taking her to Bacchus Marsh Railway Station, taking a cab to Southern Cross station, and a further cab to Canterford's address as per the Crown's pragmatic approach document.
125 From the 25 May statement; the false alibi lie about the lady in the white car as per the Crown's pragmatic approach document.
126 That Lo said she slept in Hogan's bed with him after moving in to the Maddingley address.[53] That they had arranged that she would sleep in his bed but that he would not touch her but that she said that within days of moving in with Hogan she was being sexually assaulted and raped in Hogan's bed (therefore giving a timeline for when Lo says the sexual assaults commenced).[54] That the alleged rapes were happening 'every other day'[55] and that she said: 'at times when this was happening and I know Peter was home and would have had to hear me but he never did anything to help me. I never spoke to Peter about it because I know that him and Paul are partners together in this'.[56]
127 The allegations about Peter at paragraph 28, that she alleged that she was raped on the 18 and 19 May 2016 (relevant to the timeline and frequency of the allegations of rape).[57]
128 The fact of the allegations of rape in paragraphs 23, 24 and 25 relevant to the timeline.[58]
129 The contents of paragraph 42 and related paragraphs about the events on the morning of 23 May. That she said that she was raped on the morning of the murder and that during the alleged rape she received a call from Jacob Layton on Facebook Messenger, and that she picked up the call, but before doing so told Paul not to make any noise. That Jacob asked her if she needed to be picked up, but she said no. That she said, 'I am not sure if Paul could hear it, Jacob asked me if I was okay and I said no. I said please tell Rae that I will not be coming into work. At the time I was on the phone Paul was actually having sex with me'.[59]
130 The fact that Lo said in her statement, about the morning of the shooting, '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 [sic] where to go'.[60]
131 That she said that, as she was moving her stuff out to the driveway, Hogan showed her videos and photos of her on his phone that she thought depicted her having sex in his bed and he said it was backed up on the Cloud and he was going to show everyone the videos or photos and that she was scared and panicked and didn't want him to show that to anyone.[61] (Therefore the fact, as distinct from the playing, of the recorded videos of a sexual nature that she said Paul Hogan had of her in his possession and what Hogan said about that).[62]
132 That she said that while she was living with Paul and Peter she never willingly had sex with either man.[63]
133 Regarding the allegations of threats made by Hogan to kill, stab or choke Lo or her allegations of actual violence perpetrated by him on her, this evidence may be relevant to Lo's credibility as to the extent of the alleged violence and abuse generally (see paragraphs 31 and 32) and as to the extent of the violence that occurred after the marriage celebrant left (see paragraph 50 and 51). If the Defence seeks to adduce aspects of these particular paragraphs, the Crown would likely be given leave to adduce the remainder of the detail in those paragraphs in impeachment of Lo's credit about those matters or to address any selectivity of approach. Otherwise, the detail of the allegations should not be led over objection by the Defence. However, the fact that Lo represented that there was a fight on the night of 17 May and that there was a fight after the marriage celebrant left, does not require exclusion. The fight on 17 May could be dealt with as foreshadowed in Appendix A to the Crown's submissions and the Defence Table of Objections.[64] The parties could consider a similar approach for dealing with the fight on 23 May, after the celebrant left. In any event, there will be other evidence before the jury from Hughes, about witnessing a physical fight between Hogan and Lo in relation to Lo's phone after the marriage celebrant left on 23 May.
134 The remaining detail in Lo's 24 May disclosures to police and her 25 May police statement, which is subject to Defence objection,[65] is excluded on the basis that the probative value of the evidence is outweighed by the danger of unfair prejudice under s 137. Because of the breadth of the disclosure statements and the 25 May statement and in light of the different documents put forward by the Crown and the Defence, attempting to indicate what was agreed to be led if any of the content of the 24 May disclosures or 25 May statement were permitted to be led and what was subject to continuing objection,[66] the Court recognises that the parties may wish to seek further clarification after the Crown has considered this ruling and had an opportunity to advise the Defence and the Court about any amendments to the Further Amended Crown Opening and as to what is intended to be to led in chief from the above-mentioned sources, as a result of this ruling and other rulings provided today.
135 The Defence submit that that what was said about Hughes raping her and being a partner in Hogan's abuse of her is not incriminating conduct and that Lo did not know that Hughes was capable of incriminating her when she lied about Hughes. It was argued that Hughes knew nothing of Lo's alleged involvement in the murder and was not a witness to any of the alleged communications between AB and Lo. Therefore the 'admitted lie' as to Hughes' role, regarding sexual assaults on her, was said to be not capable of revealing anything of the events bearing on the murder. It did not relate to a material issue insofar as it was not concerned with some circumstance or event connected with the killing of Paul Hogan; and it was not explicable only on the basis that the truth that Hughes had not sexually assaulted Lo, would implicate Lo in the offence of murder.
136 It was further submitted the admitted lie is something which might go to Lo's credit but no more.
137 The Crown disagrees with the Defence characterisation about what Lo knew about Hughes capacity to incriminate her in the murder. The Crown argued, citing R v Ciantar[67] and Koch v The Queen[68] that the lie about Hughes cannot be seen in isolation The Crown referred to Director of Public Prosecutions v Huajiao Zhuang,[69] where Kaye JA said:
the test which I must consider is not whether standing alone the only reasonable inference to be drawn from that conduct is that the accused acted as she did because of a belief that she had murdered the deceased without justification. Rather, it is plain that the question must be considered in the context of all the evidence in the case and the background circumstances to it.
138 The Crown also referred to the Jury Directions Act 2015 s 20(1)(b) and the precondition for admissibility being a determination by the trial Judge on the basis of the evidence as a whole that the conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
139 The Crown submits that the Hughes lie is capable of being incriminating conduct because Lo lied about Hughes, knowing she had lied about her presence at the scene at the time of the shooting. She had told police that as Hogan and Hughes were backing over her things in the driveway, the lady in the white car stopped to help her and she left with her and caught a number of taxis. Also, Hogan had pointed out and read out a series of text messages on her phone[70] to Hughes in her presence the night before, which were said to have been sent to her ex-boyfriend indicating, 'I can't stand it, hate it, want it dead.' Whereupon Hogan said, 'with all I've done for her, she wants me dead.' Therefore, Hughes was a witness to her presence when Hogan was killed and to the texts the night before about wanting Hogan dead, and to the volatility of the relationship because he lived at the same house. No one else could give the evidence that he could give.
140 The Crown argued that Lo had gone to a lot of trouble to disassociate herself from the scene, changing her address on VicRoads at 11.00 am, deleting data and texts from the night before from her phone; knowing however that Hughes could bring her unstuck and betray her complicity in the murder in a way that no one else could.
141 It was submitted that the lies about Hughes are lies that an innocent person would not tell. Otherwise, why would she lie in this way about Hughes? The evidence before the Court was that the night before the murder she was calling out to Hughes for help according to Hughes' second statement,[71] whereas immediately after the shooting, she lied that she had been raped by Hogan many times and that he threatened to kill her.
142 Therefore a jury could rationally conclude that the only reasonable inference from the conduct of the accused in telling the lies about Hughes after the shooting, is that she knew or believed that she was complicit in the murder.
143 In reference to Edwards v The Queen,[72] which was raised by the Defence, it was submitted that the lies about Hughes amounted to conduct inconsistent with innocence.
144 The Crown submitted that the test for admissibility under s 20 of the Jury Directions Act is straightforward. If the trial Judge determines that, on the basis of the evidence as a whole, the evidence is reasonably capable of being viewed by the jury as incriminating conduct, then it should go to the jury and be left for them to determine whether it has that effect. The Jury Directions Act provides for protective directions if evidence is capable of being led as incriminating conduct.
145 Whilst a final decision must be deferred until the whole of the evidence is before the jury, I consider that the 'Hughes lie' is capable of being led as incriminating conduct.[73]
[1] DPP v Lo [2018] (Ruling No 1) [2017] VSC 816.
[2] Officers Leith, Thompson and Robertson.
[4] Incriminating conduct relied on by the Crown.
[5] Outline of Prosecution Submissions filed 13 March 2018, Appendix A 14 ('Appendix A').
[6] Outline of Prosecution Submissions filed 13 March 2018 [15].
[8] Outline of Prosecution Submissions filed 13 March 2018 [7] and Appendix A.
[9] Outline of Prosecution Submissions filed 13 March 2018 [12], [14], [18] and Appendix A 10, 11.
[10] Outline of Prosecution Submissions filed 13 March 2018 [16] and Appendix A 14.
[11] Outline of Prosecution Submissions filed 13 March 2018 [5].
[12] Submissions of the Accused: Relationship evidence and the deceased's conduct dated 26 February 2018.
[13] Defence response to Crown opening.
[15] Bauer (a pseudonym) v R (No 2) [2017] VSCA 176.
[18] R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 [60]; IMM v The Queen (2016) 257 CLR 300.
[19] Chronology of Police investigation (Homicide and SOCIT) 24 and 25 May prepared by Defence from material in the depositions.
[23] In ML v The Queen [2011] VSCA 193, Harper J interpreted the definition of admission under the Evidence Act narrowly. Similarly in The Queen v GH [2000] FCA 1618 Spender J held that a statement which is exculpatory on its face is not a representation which is adverse to the interests of the accused: it is the addition of other circumstances which may import that quality. However, in Nabole v The Queen [2014] VSCA 297; (2014) 43 VR 542 Redlich JA was prepared to assume, without deciding that the implied admissions made to a customs officer were admissions for the purposes of Commonwealth tape-recording requirements.
[24] As is permitted by the Notes to the Evidence Act and the Interpretation of Legislation Act 1984 (Vic).
[27] Bin Sulaeman v R [2013] NSWCCA 283; Khamisi v R [2015] VSCA 355 [31].
[28] Em v R [2007] HCA 46; (2007) 232 CLR 67 [109] (Gummow and Hayne JJ) ('Em v R').
[29] Em v R [2007] HCA 46; (2007) 232 CLR 67.
[30] [2013] NSWCCA 335 [124][125].
[31] Referring to R v Swaffield (1998) 192 CLR 159; Pavic v R [1998] HCA 1 ('Pavic').
[34] R v Swaffield; Pavic v R [1998] HCA 1.
[35] See Gans and Palmer Uniform Evidence second ed 421.
[36] See Gans and Palmer Uniform Evidence second ed. 8.2.4.
[37] (Ruling No 2) [2014] VSC 153.
[42] Defence written submission 'Admissibility of the Accused's allegations of assault and sexual assault by Hogan' dated 6 March 2018 at 7.1
[43] Defence submissions dated 26 February 2018, [1].
[48] R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 [72].
[49] (2001) 208 CLR 593 [51].
[50] IMM v The Queen (2016) 257 CLR 300 ('IMM v The Queen'). The majority agreeing with the reasoning in R v Shamouil as to the limited opportunity for the trial Judge to take into consideration the credibility or reliability of the evidence.
[51] IMM v The Queen (French CJ, Kiefel, Bell and Keane JJ).
[52] R v SJRC [2007] NSWCCA 142 [37]-[39].
[58] That is 'the fact of' rather than the detail contained in the allegations.
[62] Ruling No 1 addressed admission of the actual recording and the playing of it before the jury, not the fact of Hogan's claim to Lo about filming her.
[65] I have been provided with some guidance as to specific Defence objections to paragraphs in the police statement if the content is not wholly excluded. A colour coded annotated copy of the statement was handed up by the Crown on 1 March and a Table of Objections was provided by the Defence. Whilst somewhat hard to follow, I have had regard to these documents to understand specific aspects objected to and the reasons why by both the Crown and Defence.
[66] See Lo submissions 6 March 2018 and Table of Objections filed 7 March 2018; copy of colour annotated Lo statement handed up by Crown on 1 March 2018; Crown submissions dated 13 March 2018 and Appendix A to those submissions.
[70] Text messages providing identification details of Hogan to AB.
[73] This conclusion is based on my substantial acceptance of the arguments put by the Crown on the import of the evidence of the Hughes lie.
DPP
Lo
(2006) 66 NSWLR 228
(2016) 257 CLR 300
(2014) 43 VR 542
(2007) 232 CLR 67
(1950) 82 CLR 133
(1998) 192 CLR 159
(2001) 208 CLR 593
(2016) 16 VR 26
(1993) 178 CLR 193