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Supreme Court 8 March 2001

R v Ngo; Dinh; Dao

[2001] NSWSC 595

Also reported as 122 A Crim R 467
Homicide
CRIMINAL LAW & PROCEDURE VOIR DIRE ADMISSIBILITY OF EVIDENCE

Citation: R v Ngo; Dinh; Dao [2001] NSWSC 595
Court: Supreme Court of New South Wales, Common Law Division (Criminal)
Date: 8 March 2001
Judge(s): Dunford J

Background

Three accused faced murder charges arising from the shooting death of John Newman. The Crown alleged that one accused, Ngo, orchestrated the killing and recruited another accused, Dinh, as the shooter, with Dao also charged in connection with the enterprise. The proceedings involved separate but related indictments heard together.

Before the jury was empanelled, a series of contested evidentiary rulings were required. Defence counsel raised objections spanning ballistics evidence, prior witness testimony from deceased and unavailable witnesses, recorded conversations, and a substantial volume of background evidence relating to alleged prior attempts on the victim's life.

The court conducted a voir dire (a hearing held in the absence of the jury to determine admissibility) to resolve each objection before the trial proper commenced.

  • Whether ballistics evidence linking a rusted pistol recovered nearly four years after the shooting to the murder weapon was admissible, given the absence of a firm expert identification
  • Whether the expert's overseas origin provided a basis to exclude his evidence on the grounds it might be given undue weight by the jury
  • Whether prior testimony of the deceased witness Shirley Barrett could be read into evidence, including the content of a telephone call the Crown characterised as a lie by Ngo
  • Whether a "lie" constituted an "admission" within the meaning of the Evidence Act 1995, and if so whether the mechanism for adducing it under s 65 satisfied the oral evidence requirement in s 82
  • Whether evidence of recordings and transcripts of conversations was admissible, including questions of translation, accuracy, and whether relevant portions were severable from inadmissible ones
  • Whether extensive background evidence of prior alleged attempts on Newman's life, Ngo's recruitment of shooters, and possession of firearms was admissible against the accused Dinh

Decision

Ballistics evidence: Dunford J admitted the ballistics evidence. Although no expert could conclusively confirm the rusted pistol was the murder weapon, the Crown's case on this point was properly circumstantial. Drawing on Shepherd v The Queen (1991) 170 CLR 573, his Honour noted that individual circumstances in a circumstantial case need not each be proved beyond reasonable doubt; it is the totality that matters. The probative value, if the evidence were accepted, was high, and no unfair prejudice to the accused was identified. The fact that one expert travelled from Germany was held to be irrelevant to admissibility; the jury would assess his evidence on its merits.

Deceased witness Barrett and the "lie" issue: The admissibility of Barrett's prior testimony under s 65(3) of the Evidence Act 1995 was largely conceded in respect of identifying Ngo as the caller. The more complex question concerned the second telephone call, which the Crown characterised as Ngo lying about his location. Following R v Esposito (1998) 45 NSWLR 442 and R v Horton (1998) 45 NSWLR 426, Dunford J accepted that a lie is an "admission" within the Act's dictionary definition. The precise interaction between s 65 (allowing prior testimony of unavailable witnesses) and s 82 (requiring admissions to be proved orally by a person who heard them) raised a textual tension, which the judgment acknowledged as potentially producing an "absurd" result. The available text does not record a final resolution on this precise sub-issue.

Recordings, transcripts, and translations: Objections were raised to various recorded conversations and their transcripts, including questions about translation accuracy and whether inadmissible portions could be severed from admissible ones. Dunford J approached the admissibility of individual conversations and excerpts on a case-by-case basis, with some portions admitted and others deferred or subject to further argument. The principle applied was that where parts of evidence could stand independently, admissible portions were not excluded merely because other portions might be problematic.

Background evidence of prior attempts against Newman: Dunford J admitted the body of background evidence relating to Ngo's alleged prior efforts to have Newman killed. His Honour reasoned that, because Dinh was alleged to have been recruited by Ngo, the jury needed to understand the surrounding circumstances of that alleged recruitment. This included evidence that Ngo had expressed desire to have Newman killed, had arranged weapons, had directed prior unsuccessful attempts, and had been seen near Newman's home days before the shooting. Without this context, the jury might find it implausible that a shooter would be recruited at short notice. The evidence was admissible to show the circumstances of the alleged recruitment and the nature of the enterprise Dinh was said to have joined, but not as proof that Dinh did in fact join or participate.

Orders Made

• The evidence indicated against the accused Dinh is admitted, subject to the limitations outlined in the judgment regarding use of evidence of events prior to 5 September 1994 and the requirement for clear jury directions

Key Takeaways

  • In a circumstantial Crown case, individual pieces of evidence linking a suspect item to a crime do not each need to be proved beyond reasonable doubt; the jury considers the totality of circumstances together, following Shepherd v The Queen (1991) 170 CLR 573.
  • An expert witness's overseas origin is not a basis for excluding expert evidence under ss 135 or 137 of the Evidence Act 1995 on the ground the jury might assign it undue weight.
  • A lie told by an accused constitutes an "admission" within the dictionary definition of the Evidence Act 1995, as confirmed by the NSW Court of Criminal Appeal in R v Esposito and R v Horton; its admissibility through mechanisms such as s 65 may raise further textual complexity requiring separate analysis.
  • Where an accused is alleged to have been recruited into a criminal enterprise by a co-accused, background evidence going to the circumstances and context of that alleged recruitment is admissible against the recruited party, provided it is limited to establishing those circumstances and the nature of the enterprise rather than proving the fact of participation.
  • Inadmissible portions of recorded conversations or transcripts do not necessarily render the entire exhibit inadmissible; courts may sever and admit only those portions that independently satisfy the applicable admissibility tests.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 56, 65, 81, 82, 102, 108, 135, 137, 165

Cases:
- Shepherd v The Queen (1991) 170 CLR 573
- R v Esposito (1998) 45 NSWLR 442
- R v Horton (1998) 45 NSWLR 426
- Palmer v The Queen (1998) 151 ALR 616
- R v Bilick and Stark (1984) 11 A Crim R 452
- Wilson v The Queen (1970) 123 CLR 334
- Harriman v The Queen (1989) 167 CLR 590
- R v Beserick (1993) 30 NSWLR 510
- R v AH (1997) 42 NSWLR 702