R v Duong

District Court of NSW|2024-06-13

Introduction

Prior to empanelment of the jury in this trial the Crown sought an advanced ruling in accordance with s192A of the Evidence Act (NSW) 1995 ("EA").
The accused is charged with 12 principal Counts on the Indictment comprising five charges of indecent assault (Counts 1, 2, 3, 7 and 9), six charges of sexual assault on a child (Counts 4, 5, 6, 8, 10 and 11) and one charge of maintaining an unlawful sexual relationship with a child under the age of 16 (Count 12). In addition, there are three alternative counts to Count 12 each of which allege the accused had sexual intercourse with a child under the age of 16 years.
The Crown application concerns evidence that establishes that on 9 October 2009, following disclosure by the complainant JG, the step-daughter of the accused, to her mother of sexual misconduct by the accused towards her, the complainant's mother confronted the accused about the complaint. The accused denied the allegation of sexual misconduct but thereafter attempted suicide by consuming 29x30mg Mirtazapine tables. Mirtazapine is a prescription anti-depressant drug.

The evidence

The evidence the Crown relies on is contained substantially in Exhibit A on the voir dire which comprised the following statements:- 1. Statement of JG dated 15 August 2019 2. Statement MN dated 27 September 2019 3. Notes of conference with MN dated 15 February 2024 4. Statement of PN dated 9 March 2019 5. Statement of KN dated 27 April 2019 6. Frankston Hospital medical records concerning the accused's admission on 10 October 2009 7. Dandenong MHA assessment notes
The relevant evidence may be paraphrased as follows. In the complainant's statement at [52] to [59] she outlined that in 2009 her aunt and sister had discovered messages on the accused's phone concerning him being unfaithful to his wife, the complainant's mother. The complainant called her mother on the evening of 9 October 2009 and disclosed that the accused had been "sexually abusing" her. The complainant heard her mother questioning the accused about it, and the accused denying the allegation. The complainant stated that on the same night the accused was taken to hospital by ambulance after he apparently tried to overdose on prescription pills.
The Crown relied on the evidence of MN at [23] to [27] of her statement concerning the discovery of messages on the accused's phone concerning another woman. She went to the home of the accused and her mother on that evening but by the time she arrived the accused had been taken to hospital.
The statement of PN at paragraph [26] contains a hearsay statement that she was told by the complainant's mother the following day that the accused was in hospital and had taken pills to attempt suicide.
The Crown relied on the statement of KN at [15] to [17] where the witness stated that he had been asked by his wife to go to Frankston Hospital to see the accused as the accused had taken pills and tried to kill himself. He did not speak to the accused at the hospital.
The Frankston Hospital records relied on by the Crown recorded a history that the accused had told nursing staff that he had a fight with the complainant's mother who he described as his "ex-wife" and that the argument was over money. The history recorded suicidal ideation beginning five weeks earlier after his ex-wife told him she had been "out with other men". The accused told hospital staff that he and the complainant's mother had divorced 3 to 4 years ago, and he was finding it hard to accept her behaviour.
A further statement of SN made on 9 June 2024 became Exhibit B on the voir dire. In that statement the witness stated that he became aware that the accused had attempted suicide but did not know by what means and did not recall either dropping him off or picking him up from the hospital.

Evidence on the Basha enquiry

Prior to the Crown application, evidence had been given on a Basha enquiry by the mother of the complainant, NTN. In her evidence in chief the witness gave evidence that in 2009 the complainant had called her and told her that she was having "intimate contact" with the accused. The complainant used the words "I slept with dad" and she said that he had touched and slept with her.
The witness gave evidence that she had asked the accused whether he did that which he denied. She gave the following evidence:- "I said that if it wasn't the truth, that you have to prove it to me. He had to prove to me if you didn't do that. If you did you have to die. And then he took the tablets."
The witness then gave the following conflicting evidence:- "Q: You said something along the lines that he would have to prove to you that he hadn't done it? "A: He said he didn't do that and it, to prove that he didn't do that he would die and so that I could believe in what he said."
Pursuant to leave given under s38 EA the Crown put to the witness that she spoke to the accused about what the complainant had told her on the phone and that he admitted to her that what the complainant had said was true to which the witness replied:- "No, he didn't say that he did that so it wasn't correct."

The Crown submissions

The Crown relied on a written outline of submissions which set out the evidence paraphrased above and the legal principles relating to the admissibility of evidence of post-offence conduct as consciousness of guilt which are not controversial. Such evidence may encompass conduct including lies, flight, concealment of evidence and self-harm and the preconditions of admissibility are set out below.
The Crown relied on a comparative case, RH v R [2011] NSWCCA 98 as an example of the application of the principles to post-offence self-harm relied on as evidence of consciousness of guilt.
The Crown submissions also dealt with the Court's discretion to exclude prejudicial evidence pursuant to s135 EA and the judgment required pursuant to s137 EA to exclude evidence where the probative value is outweighed by the danger of unfair prejudice to the accused. In respect of s135 EA the Crown submitted that the evidence would not be misleading or confusing to a jury, or cause or result in any undue waste of time.
In respect of s137 EA the Crown submitted that the Court would not consider issues of credibility, reliability or weight that may be placed on the evidence by the jury relying on R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112, approved in R v XY [2013] NSWCCA 121. The Crown further submitted that the evidence, when assessing its probative value, is to be taken at its highest without seeking to evaluate the reliability or credibility of the evidence, relying on IMM v The Queen [2016] 257 CLR 300; [2016] HCA 14 at [39].
These principles were not in issue. However the Crown submitted the probative value of the evidence is significant and was capable of demonstrating the accused appreciated the seriousness of the allegations against him and the grave consequences for him. It therefore had substantial probative value.
The Crown further submitted that any danger of unfair prejudice could be appropriately accommodated by directions to the jury regarding consciousness of guilt, tailored to fit the circumstances of the case. Further directions could be provided to the jury concerning any alternative explanations for the conduct.
In his oral submissions the Crown clarified that the complainant's mother was a compellable witness pursuant to s279(1)(d)(i) of the Criminal Procedure Act 1986 (NSW). It was further submitted that the accused's attempt at suicide arising from the allegations put by the complainant was an available inference, and any alternative explanation available on the evidence for example marital discord, was a matter that should be determined by the jury.

The defence submissions

In his written outline of submissions the solicitor for the accused conceded that the relevant evidence was fairly and accurately summarised by the Crown. The accused however also relied on evidence from the complainant's sister and aunt concerning an alleged affair between the accused and another woman giving rise to an alternative explanation.
The accused conceded that the fact of the suicide attempt in the context set out by the complainant was capable of meeting the relevant legal test. However it was submitted that it was barely capable of meeting the preconditions set out below and therefore the probative value of the evidence was low. The accused went on to characterise the probative evidence as being "only weakly probative, in the sense that it provides little support for any sort of conclusion that the accused experienced a guilty conscience at the relevant time."
The accused described the evidence concerning what allegations the accused's wife put to him shortly before the suicide attempt as being "scant". Nor was the accused's wife asked about the detail of what was said to her when examined on the Basha enquiry. This rendered the evidence of limited probative value.
The accused submitted that the evidence was entirely equivocal as to whether the accused's conduct was "a realisation of guilt and a fear of the truth."
The accused relied on the significant prejudice in the evidence to submit that it should be excluded pursuant to s137 EA. It was submitted the real prejudice to the accused is "the non-specific and indeed vague of the evidence that the jury will be asked to assess" (sic). It was submitted there was no way to know which of the specific counts would have been apprehended by the accused at the time of the conversation with the complainant's mother. In those circumstances the Crown was simply asking for evidence to be admitted upon which the jury would conclude the suicide attempt related to some sort of general acceptance that he was guilty of sexual offending in general. The Crown's submission that the suicide attempt was consciousness of guilt in respect of all 15 Counts on the Indictment involved an erroneous approach in breach of the fifth precondition of admissibility in R v Cook [2004] NSWCCA 52, as set out below.
The accused submitted that the jury would have to be directed to consider the evidence of the suicide attempt for each count on the Indictment which meant they would be placed with an impossible task and therefore "irresistibly push towards considering the evidence against all of the Counts". This approach would be highly prejudicial to the accused and the accused submitted that no direction could be crafted that would do anything other than "muddy the waters". Therefore the danger of unfair prejudice comfortably outweighed the probative value of the evidence proposed to be led and the Court should refuse to admit the evidence.
Following argument on 13 June 2024 I ruled in favour of the Crown application to adduce the evidence concerning the suicide attempt by the accused as evidence of consciousness of guilt and reserved delivering my reasons for the ruling. What follows are my reasons for that ruling.

Legal principles to be applied

In R v Cook [2004] NSWCCA 52, a case that concerned evidence of flight as consciousness of guilt, Simpson J held a [22] to [24] that before such evidence could be admissible it must be shown to be capable of meeting the following five conditions:- 1. That the conduct was deliberate 2. That the conduct related to a material issue in the trial 3. That the motive for the conduct was a realisation of guilt and a fear of the truth 4. Where relevant, that it is shown that the conduct is corroborated by independent evidence 5. The conduct is capable of being seen as indicating a consciousness of guilt by the accused of each of the Counts on the Indictment
The first two preconditions are uncontroversial and not in issue here. The accused's attempted suicide was clearly deliberate and there was a temporal and contextual connection of the evidence to the disclosure by the complainant to her mother of the allegations of abuse.
I am satisfied that the third precondition, namely that the accused's motivation for the suicide attempt was a realisation of guilt, and a fear of the truth is an available inference on the evidence although there may be alternative inferences to be drawn as to motivation depending on what evidence is called at trial. That determination is clearly a question of fact and is a matter for the jury to determine.
I am satisfied that there is ample independent evidence of the suicide attempt, and given the wide ranging nature of the allegations over a long period of time including the maintenance of an unlawful sexual relationship with the complainant over a period of two and a half years when she was 13 to 15 years of age, the conduct is capable of being seen as an indication of the accused's consciousness of guilt in respect of each of the Counts on the Indictment.
I accept the Crown's submission that the evidence is neither misleading nor confusing, nor likely to cause or result in undue waste of time so as to warrant exercise of the discretion to exclude evidence contained in s135 EA.
Unlike s135 EA, s137 EA is not a matter of discretion, but rather a matter of judgment. The section provides that the Court "must refuse to admit evidence adduced by the prosecutor if it's probative value is outweighed by the danger of unfair prejudice to the defendant." I do not accept here the accused's submission that the evidence to be adduced is of limited probative value or that it is "weakly probative". Rather, I accept the Crown's submission that the evidence has substantial probative value and is capable of demonstrating that the accused appreciated the seriousness of the allegations made against him and their grave consequences for him.
There can be no doubt that the evidence is prejudicial to the accused by its very nature. The question is whether such unfair prejudice to the defendant outweighs its probative value. I am satisfied that it is not. In accordance with authority, the prejudice here concerns the possible misuse by the jury of evidence which would of its very nature have potential to divert or distract jurors from their sworn task. However I am satisfied that with careful and properly crafted directions any risk of prejudice will be minimised and the accused will have the opportunity to place evidence before the jury to demonstrate the conduct has an alternative explanation to that contended for by the Crown. The jury will therefore ultimately be capable of considering whether they are satisfied to the requisite degree that the conduct is only consistent with guilt.
For the above reasons I ruled that the evidence proposed to be led by the Crown of the attempt at suicide by the accused is admissible and is capable of being evidence of consciousness of guilt in respect of Counts 1 to 15 on the Indictment. I further directed that the Crown produce an appropriate draft direction in due course.

Amendments 14 November 2024 - Date of decision DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 November 2024

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