DPP v Tran

1 As stated in the first ruling in this trial,[1] the accused is charged with the bashing murder of the deceased, an elderly Vietnamese woman. Although the killing occurred in a suburban street, there were no eyewitnesses. There is evidence of the presence of the accused wearing pink clothes in the vicinity just before and after the event. Identity and intention are the main issues.

2 Pursuant to notice given under s 67(1) of the Evidence Act 2008 (Vic), the prosecution seeks to have admitted against the accused hearsay evidence in circumstances where the witness is unavailable. The witness is the deceased and the hearsay evidence is her answer by nodding that the person who attacked her was 'the girl in pink'. The prosecution relies upon the exceptions to the hearsay rule in s 65(2)(b) and (c), which apply where the maker of a previous representation is not available at trial, as the deceased is not.

3 The defence oppose the admission of the evidence on three grounds:

• the nodding cannot be accepted as a meaningful previous representation;

• if the nodding represented that the attacker was the girl in pink, the prosecution has not established that it is unlikely that this representation was a fabrication; and

• in any event, the court should exercise its discretion in s 137 to exclude the evidence.

Did the deceased make a previous representation?

4 The exclusionary rule relating to hearsay in s 59(1) and the exceptions in s 65(1)-(2) apply to a 'previous representation' of the person, which includes a 'representation to be inferred from conduct,'[2] such as nodding. The defence submits that the nodding of the deceased cannot be characterised as a representation of anything because of her condition and the general circumstances at the time.

5 Undoubtedly the deceased was in a very poor medical condition at the time. She had been badly bashed and was lying on the driveway of a house. She had multiple injuries to her head and face and could barely move. She was mortally wounded. She was bleeding profusely and could not speak. The police photographs are shocking. There is no question that her medical condition impaired her physical capacity to communicate. The defence submits that her medical condition was also such as to deprive her nodding of the character of a conscious and meaningful representation. The gravamen of this objection is that it was not only her physical capacity to communicate that was impaired, but her mental capacity as well.

6 The circumstances of the nodding were that, shortly after the attack, the deceased was attended by a nearby neighbour. He found her lying on the ground, conscious but unable to speak. The emergency services number 000 was called. The neighbour carefully followed the operator's instructions in trying to find out what had happened to the deceased. He did this by asking her questions in Vietnamese to which he was seeking verbal answers. As his way of explaining to the operator that his questions had not been answered, the neighbour told the operator that the deceased 'doesn't know what happened to her'.

7 A little later and before the ambulance arrived, the neighbour came up with the idea of putting questions to the deceased and asking her to nod in reply. He had found her to be 'alert' and thought that this was worth trying. He wished he had thought of it earlier. While holding the neck of the deceased as she was lying mortally injured on the ground, he asked her three questions, to which she gave three nods in reply:

All right. When you asked the woman whether she can answer with a nod? -----M'mm.

What response do you get?---A slight - a slight nod, sir, yep. Enough for me to continue on with the next question.

Anything verbal from her?---No, no.

You get a slight nod, and are you cupping her head ---?---Yes, I was still, yes, I was still - I was still holding her neck, yeah.

And holding her from behind, as I understand you, is that right?---Um---

Or from the side?---No, by this time she was on her back, the ambulance told us to lay her on her back.

All right. She answers with a nod. What is it you ask her next?---I asked her - next is "did someone attack you".

Yes?---And the reason I ask her that is my auntie, my step-mum, said that this injury looks serious, it's not like something must have happened to her.

Did you ask 'whether it was the girl in pink that attacked you'?---I - that was the second question I ask her, sir. I first ask her, 'Did someone attack you?' And she nodded. I ask her, 'Was it the girl in pink' and she nodded again.

The reason why the neighbour asked about the girl in pink is that he had seen her acting strangely after to the attack very near to where it took place.

8 The prosecution submits that the nodding of the deceased, when taken with the questions, are representations by conduct that the girl in pink was her attacker. Actually, the prosecution correctly submits that the nodding also represent that the attacker was female and wore pink clothing. As these facts go to the identity of the attacker, I will treat them in the same category.

9 The defence submits that, having regard to the condition of the deceased at the time and the circumstances in which the nodding occurred, the nodding is not representational of anything. She was a badly bashed woman who could not speak and could barely move. It is entirely speculative whether she understood the questions and what she meant by the nodding. The true position was that the deceased did not know what had happened to her, as the neighbour told the 000 operator. The neighbour had asked leading questions of the mortally injured deceased that suggested that the girl in pink was the attacker, which put words into her mouth in a situation where she was very likely to accept them. For these and other reasons that were attractively developed in oral and written submissions, the nodding was not a previous representation and not admissible on that fundamental ground.

10 These submissions need to be considered against the evidence of the condition of the deceased when she engaged in the nodding and against the medical and paramedical evidence in relation to her capacity to understand and respond to stimuli. That evidence requires a distinction to be drawn between the deceased's physical capacity and her mental capacity.

11 While the deceased had been badly bashed, could not speak and was severely restricted in her physical movements, at all material times she was conscious, alert and breathing. She could move deliberately, if slightly. For example, she was seen to wipe blood from her eyes. She attempted to assist ambulance officers when they tried to move her. She looked at people when they spoke to her and could press a hand when asked to. This indicates that, despite her terrible physical injuries, the deceased was functioning mentally well enough meaningfully to nod in answer to questions. At the least, a jury could so find.

12 The medical and paramedical evidence supports this conclusion. The ambulance paramedics gave the deceased a Glasgow Coma Scale score of 11 out of a possible 15 when they arrived a little after the nodding answers had been given. Her motor score was 6 out of a possible 6, which meant that 'the patient was able to understand and obey commands as any normal person would'. When the paramedics were moving the deceased onto a stretcher, 'she made an effort to bend up her knees and assist'. She did this after being 'instructed' in Vietnamese.

13 According to a forensic physician who reviewed the medical evidence, the deceased was to be categorised as being 'moderately' impaired in terms of her conscious state when attended by ambulance officers. Despite being cognitively impaired to some degree, her motor functioning was fully preserved, 'indicating that she was able to obey commands'. This suggested that 'she was able to understand and respond to the paramedics' instructions'. It was therefore possible that the deceased was able to understand and nod in response to the neighbour's questions, which occurred earlier. The nods were unlikely to have been involuntary movements in response to pain. The fact that the deceased attempted to assist the ambulance officers when they tried to move her suggested that she had attempted a 'purposeful movement'.

14 On this evidence, it would be well open to the jury to find that the nodding of the deceased were previous representations relating to the identity of the attacker. In plain English, the jury could find that the deceased was saying by the nodding that the attacker was the girl in pink. Therefore, the first ground of the defence objection fails. Of course, it remains open to the defence to contend to the jury that the nodding was not meaningful, as submitted here.

15 The exception to the hearsay rule in s 65(2)(b) applies if the representation -

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

16 The fact asserted by the nodding representation (as I have found it to be) was that the attacker was the girl in pink. There is no dispute that the deceased made this representation shortly after the attack occurred. Nor is there any dispute that the circumstances in which the representation was made are those that occurred in the lead-up to the attack and the period shortly afterwards in which the deceased was attended by the neighbour (among others) and ambulance officers. It is also necessary to take into account as part of the circumstances that there is evidence that the deceased had seen the girl in pink acting strangely in the vicinity prior to the attack, and the neighbour shortly afterwards. The medical condition of the deceased forms part of the circumstances.

17 The onus of proof is on the prosecution as the proponent of the evidence to establish that these circumstances make it unlikely that the representation is a fabrication.

18 The defence submits that the prosecution has not established that the circumstances make it unlikely that the representation is a fabrication. Its submissions give rise to an important issue of interpretation about the kind of fabrication that must be established to be unlikely.

19 In Director of Public Prosecutions (Vic) v Paulino (Ruling No 1)[3] I addressed this issue. I there held:[4]

It can be seen that the second condition in s 65(2)(b) is satisfied where the representation was made 'in circumstances that make it unlikely that the representation is a fabrication'. This test is directed towards the unlikelihood of deliberate concoction not the unlikelihood of honest mistake.[5]

As can be seen, I held by reference to the authorities cited that the test in s 65(2)(b) is directed at the unlikelihood of fabrication, not the unlikelihood of honest mistake.

20 In the present case, the defence submits that the test in s 65(2)(b) is not so narrow. In reliance upon the judgment of Miles AJ in R v Kuzmanovic,[6] it was submitted that more than the unlikelihood of intentional fabrication must be established. The proponent of the evidence must establish the unlikelihood of unintentional invention as well. In that case, Miles AJ held that 'fabrication may be taken to include reconstruction falling short of a false invention yet not entirely free of a process of piecing together discrete items of memory'.[7] For a number of reasons I cannot, with respect, accept this interpretation of s 65(2)(b).

21 As I discussed in Paulino, there is a well-understood difference between the tests in the exceptions in paras 65(2)(b) and (c):[8]

Section 65(2)(b) requires that the representation be made in circumstances 'that make it unlikely that the representation is a fabrication'. By contrast, s 65(2)(c) requires that the representation was made in circumstances 'that make it highly probable that the representation is reliable'. Sections 65(2)(b) and 65(2)(c) are therefore 'enlived by different matters'.[9] The matter in s 65(2)(b) is the unlikelihood of fabrication while the matter in s 65(2)(c) is the high probability of reliability. The test in the former creates a 'significantly lower ... threshold of admissibility' than the latter.[10]

As was held in Conway, because the exception in s 65(2)(c) has 'the potential to operate unfairly against an accused person', the requirement that it be 'highly probable' that the representation is 'reliable' is considered to be 'an onerous one' and the reliability of the representation must be not just probable but highly probable. [11] Moreover, as satisfaction of the condition must be established as a fact, there must be evidence of the circumstances that make it so highly probable.[12]

To interpret the test in para (b) as one that requires the unlikelihood of unintentional invention as well as the unlikelihood of intentional fabrication to be established would conflate the clear difference between the operation of paras (b) and (c). It would bring matters going to reliability into para (b) when those matters are the subject of the different test in para (c).

22 The origin of s 65(2)(b) is the recommendation on the subject of the Australian Law Reform Commission in its interim report on evidence,[13] which was adopted in the final report.[14] In the interim report, the ALRC recommended the adoption of the formula used in Ratten v The Queen.[15] Lord Wilberforce held in that case that the 'res gestae' exception to the common law hearsay rule did not apply where there was a 'possibility of concoction, or fabrication'.[16] The legislation finally recommended by the ALRC contained the word 'fabrication' only,[17] and s 65(2)(b) reflects this.

23 In Kuzmanovic,[18] Miles JA gave as a reason for interpreting the test in s 65(2)(b) widely the fact that the ALRC had recommended, and the legislation had adopted, the test of 'fabrication' and not the test of 'concoction, or fabrication', as Lord Wilberforce had stated in Ratten. With respect, I can see nothing in the discussion of the subject in the interim or final reports of the ALRC to support this interpretation. It would have been a major departure from the common law position to adopt such a wide test and I do not think this was intended. In my view, in Ratten, Lord Wilberforce employed the words 'concoction, or fabrication' to describe the cognate concept of intentionally making up the asserted fact. This reflects the sense of the dictionary definition of the words.[19] I think his Lordship was wielding a broad sword not a rapier. When recommending that the legislation employ the word 'fabrication' only, I do not think that the ALRC was intending to extend the common law res gestae exception to (not unlikely) unintentional inventions. Instead of employing two words to represent the one concept of intentional invention, it simply chose the single word 'fabrication', as the word 'concoction' added nothing to the underlying concept. That reflects the modern approach to drafting, and I think it is perfectly intelligible.

24 Lastly, the decision in Kuzmanovic on this point is contrary to the significant body of authority to which I referred in Paulino (see above), which I respectfully prefer and follow. I note that recently the Court of Appeal has discussed that body of authority with approval, although not on this point.[20]

25 I therefore maintain my view that, in s 65(2)(b), the proponent of the hearsay evidence (assuming it is otherwise admissible) must only establish that the prior representation was made at the specified time in circumstances that make it unlikely that the representation was a fabrication in the deliberate and intentional sense. It is not necessary to establish the unlikelihood of unintentional or mistaken invention.

26 In the present case, the prosecution has established that it is unlikely that the representation of the deceased that her attacker was the girl in pink was a fabrication, so understood. There is evidence that she saw the girl in pink shortly before the attack. She identified that girl as the attacker by consciously nodding to the neighbour's questions shortly after the attack. These circumstances make it unlikely that the representation is a fabrication.

27 The defence submitted that it is reasonably possible, at the least, that the deceased did not see her attacker. I reject this submission. The medical and photographic evidence reveals that the deceased was attacked to the head and face from different directions. There is a good basis for a finding by the jury that the deceased saw her attacker. It is open to the defence to contend otherwise before the jury.

28 The defence also submitted that the deceased was concerned about the strange behaviour of the girl in pink when she saw her before the attack, and the neighbour's questions were leading. In effect, the defence submitted that the deceased had projected blame for the attack onto the girl, or at least was led by the questions to do so. I reject these submissions also. On the evidence, I think this is unlikely, assuming it would be a fabrication. There is a good foundation for the jury to find that the deceased identified the girl in pink as the attacker because she saw her during the attack. Again, it is open to defence to contend otherwise to the jury.

29 For those reasons the hearsay evidence relating to the identification by the deceased of the girl in pink as her attacker is admitted under s 65(2)(b). It is unnecessary to consider the submissions made in relation to the application of s 65(2)(c).

Should evidence of the representations be excluded under s 137?

30 Lastly the defence relies upon s 137, which provides:

Exclusion of prejudicial evidence in criminal proceedings

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.

The mandatory requirement to refuse to admit prosecution evidence only applies where its probative value is outweighed by the danger of unfair prejudice to the accused.

31 The definition in the Dictionary in the Evidence Act defines 'probative value' to mean:

the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

Here, identity is a fact in issue and the evidence of the deceased's representations are clearly probative in relation to that issue.

32 Following the decision of the High Court in IMM v The Queen,[21] Warren CJ, Weinberg and Priest JJA in Director of Public Prosecutions (Vic) v Wise held that s 137 applied as follows: [22]

[T]here is no element of discretion accompanying the judicial exercise contemplated in s 137. Section 137 'is expressed in terms of an evaluative judgment mandating exclusion'.[23] Thus, in a criminal proceeding, a trial judge must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the accused.

The Dictionary to the Evidence Act defines 'probative value' to be 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. Any assessment of the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue requires that the possible use to which the evidence might be put be taken at its highest.[24] And although other sections of the Act assign a quality to the probative value contemplated by the particular provision,[25] s 137 - which simply requires the probative value of the evidence to be weighed against the danger of unfair prejudice to the accused - does not spell out the requisite probative value. In providing that probative value is to be weighed against the danger of unfair prejudice, however, s 137 does require that the evidence be taken at its highest in the effect it could achieve on the assessment of the probability of the existence of the facts in issue.[26]

33 It was established in IMM that considerations of reliability and credibility do not come into the assessment of the probative value of evidence under s 137.[27] As specified in the Dictionary (see above), the probative value of evidence turns on the extent to which it can rationally affect the assessment of the probability of a fact in issue.

34 The defence submits that the probative value of the representation of the deceased is low, even taken at its highest. There is no way of knowing whether the deceased identified the attacker as the girl in pink from what she knew. It amounts at best to evidence of the belief of the deceased, which is not relevant. That the nodding was responsive to prompting underscores the uncertainty about whether it was meaningful. That the representation was constituted by a gesture (nodding), and that the gesture was interpreted by another person (the neighbour), adds to the low probative value of the representation.

35 I do not accept these submissions. The court has full evidence of the condition of the deceased and the circumstances in which the representation was made. As I discuss above, that evidence establishes a good basis for the jury to find that the deceased consciously gave meaningful answers to questions asked of her about who her attacker was. She identified by nodding that the attacker was the girl in pink. A girl (or woman) wearing distinctive pink clothing was seen by the deceased and others in the vicinity just before the attack and by others after the attack. There is strong evidence that the girl in pink is the accused. Taken together, this is evidence of high probative value that the accused was the attacker. While the points made by the defence have some force and may be made to the jury, they do not detract much from the high probative value of this evidence.

36 The defence submits that there is a danger of unfair prejudice were the evidence to be admitted. The evidence will seduce the jury into believing that there has been a positive identification of the accused as the attacker when there is a reasonable possibility that this is not the case. There is a risk that the jury will misuse the evidence and not take into account the underlying uncertainties and assumptions. There is a real risk that, irrespective of the strength of a judicial warning, the evidence will be given much more weight than it deserves. The defence has been deprived of the opportunity to make meaningful inquiry into what was observed by the deceased and what she actually meant to convey by the nodding. The evidence will have an emotional impact upon the jury that will unfairly dispose them towards the prosecution. These various kinds of prejudice will be incapable of cure by judicial direction because the circumstances are unusual. The value of the usual identification warning will be lost because the basis of the alleged identification of the girl in pink by the deceased is unknown.

37 I would accept that there is some danger of unfair prejudice to the accused if this evidence were to be admitted. I think the main danger consists in the jury accepting the evidence as being virtually conclusive on the issue of identity. They might fail to have regard to the condition of the deceased when she nodded in answer to the neighbour's questions and the circumstance in which the questioning and nodding took place (see above). It may be overlooked that the deceased's evidence is but one important piece of evidence when it is the whole evidence that must be considered.

38 However, I am confident that this danger can be acceptably managed by an appropriate and detailed direction of the trial judge. As was recently emphasised by Priest, Kaye and Niall JJA in Bufton,[28] the direction will have to be drafted in a way that meets the particular circumstances, unusual as they are, especially that the defence will be put to forensic disadvantage by the admission of such evidence. But such directions can be so drafted, depending upon the way the trial is ultimately run by the prosecution and the defence. Taking this into account, the probative value of the evidence is not outweighed by the danger of unfair prejudice to the accused, indeed far from it. The evidence will therefore not be excluded under s 137.[29]

[1] DPP v Tran (Ruling No 1) [2019] VSC 538 (30 August 2019) (Bell J).

[2] Evidence Act 2008 (Vic) Dictionary pt 1 (definition of 'representation').

[3] [2017] VSC 343 (16 June 2017) ('Paulino').

[5] R v Mankotia [1998] NSWSC 295 (27 July 1998) 5-6 (Sperling J); R v Polkinghorne [1999] NSWSC 704; (1999) 108 A Crim R 189, 195-6 [39]-[45] (Levine J); Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204, 241-2 [138] (Miles, von Doussa and Weinberg JJ) ('Conway'); Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490, 502 [47] (Whitlam, Madgwick and Weinberg JJ).

[6] [2005] NSWSC 771 (3 August 2005) ('Kuzmanovic').

[8] [2017] VSC 343 (16 June 2017) [23]-[24] (Bell J).

[9] Azizi v The Queen (2012) 224 A Crim R 325, 337 [48] (Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing) ('Azizi').

[10] Conway [2000] FCA 461; (2000) 98 FCR 204, 243 [142] (Miles, von Doussa and Weinberg JJ).

[11] Ibid 244 [146] (Miles, von Doussa and Weinberg JJ), cited with approval in Azizi (2012) 224 A Crim R 325, 337 [48]-[49] (Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing).

[12] Azizi (2012) 224 A Crim R 325, 337 [49] (Bongiorno JA, Buchanan JA and Hollingworth AJA agreeing).

[13] Law Reform Commission, Evidence (Report No. 26, 1985) 381-83 [692].

[14] Law Reform Commission, Evidence (Report No. 38, 1987) 78 [142].

[15] [1971] UKPC 23; [1972] AC 378 ('Rattan').

[17] Law Reform Commission, Evidence (Report No. 38, 1987) Appendix A, 164 (s 58(2)(b)).

[18] [2005] NSWSC 771 (3 August 2005)[11]-[13].

[19] Oxford English Dictionary (2nd ed, 1989):

5. The elaborate or ingenious composition, or making up (or a story, plot, scheme) to suit a purpose ...

1.a. The action or process of fabricating ... construction, fashioning, manufacture ...

2. The action of fabricating or 'making up'; the invention (of a statement); the forging (of a document). An invention; a false statement; a forgery.

[20] See Bufton v The Queen [2019] VSCA 96 (2 May 2019) [49] (Priest, Kaye and Niall JJA) ('Bufton').

[21] (2016) 257 ALR 300 (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ) ('IMM').

[22] [2016] VSCA 173 (21 July 2016) [50]-[51].

[23] IMM (2016) 257 ALR 300, 306 [16] (French CJ, Kiefel, Bell and Keane JJ).

[25] Sections 97 and 98, which deal respectively with tendency evidence and coincidence evidence, require the evidence to have 'significant' probative value.

[26] IMM (2016) 257 ALR 300, 314 [47] (French CJ, Kiefel, Bell and Keane JJ).

[28] [2019] VSCA 96 (2 May 2019) [61].

[29] This ruling should be read with DPP v Tran (Ruling No 1: unrecorded interview) [2019] VSC 823 (13 December 2019) (Bell J). After the two rulings, the accused pleaded guilty to manslaughter, for which she was sentenced: DPP v Tran (Sentence) [2019] VSC 822 (13 December 2019) (Bell J).