Citation: R v Sinai (No 3) [2021] NSWSC 778
Court: Supreme Court of New South Wales
Date: 8 June 2021
Judge: R A Hulme J
Background
The accused stood trial for the murder of a man referred to in the judgment as the deceased, Mr Ho Ledinh. The Crown alleged that the accused acted as an "enforcer" for a third party (referred to as Khai) who owed a large sum of money, approximately $1 million, to the deceased and an associate. The proposed motive was that the debt, and the animosity surrounding it, provided a reason for the killing.
Three separate evidentiary disputes arose during the pre-trial and trial process. The ruling addresses each in turn, providing reasons for decisions already announced to the parties.
Legal Issues
- Whether a witness's account of an overheard phone call, and the deceased's subsequent remarks, was admissible hearsay evidence under s 65(2) of the Evidence Act 1995 (NSW) as relevant to motive
- Whether evidence of $126,000 in cash found in vehicles associated with the accused two days after the murder was admissible as relevant to motive, or should be excluded on unfair prejudice grounds
- Whether evidence that the accused had access to encrypted BlackBerry phones was admissible to explain the absence of detected communications, or should be excluded under the mandatory exclusion test
Decision
Overheard phone call and hearsay (TD Nguyen's evidence)
The witness TD Nguyen had overheard the deceased speaking animatedly on the phone at a café, using profanity and referring to Khai and an associate. After the call ended, the deceased told TD Nguyen directly that Khai owed "us" money but was not paying. TD Nguyen then agreed to help locate Khai's address.
Hulme J held this evidence admissible under s 65(2)(b) and (c) of the Evidence Act. The representations embedded in the deceased's words were relevant to establishing the accused's knowledge of the deceased, given other evidence that the accused worked as an enforcer for Khai. The circumstances made fabrication unlikely: the deceased had no apparent reason to lie, he repeated the substance of the call directly to TD Nguyen, and he immediately took steps to locate Khai's address, which was entirely consistent with what he had said. When new defence counsel re-agitated the objection, the court found nothing to displace the earlier ruling, noting that the cross-examination at the first trial had, if anything, reinforced the reliability of the evidence.
$126,000 cash found two days after the murder
Police found $126,000 in total across three cars travelling towards Victoria two days after the murder. The Crown sought to adduce this evidence as relevant to motive, arguing it was connected to drug money and to the accused. The defence contended the evidence was unfairly prejudicial.
The court's reasons on this point were not fully reproduced in the available text, but the ruling proceeded on admissibility grounds. The cash evidence was treated as relevant to the motive question, and the association with drug money was addressed in the context of balancing probative value against unfair prejudice. Based on the catchwords, the evidence was ultimately admitted.
Encrypted BlackBerry phones
The Crown sought to adduce evidence that the accused had access to encrypted BlackBerry phones to help explain why no communications between the accused and the alleged shooter were detected by police. The defence objected on two grounds: that the evidence implied communications had in fact occurred (when the evidence was neutral on that point), and that it would associate the accused with drug trafficking.
Hulme J excluded this evidence. The court accepted that the pair could have communicated in any number of undetected ways and that encrypted phones were only one possibility among several. This rendered the probative value of the phone evidence minimal. That minimal probative value was outweighed by the dual risks of unfair prejudice identified by defence counsel. The court also noted that, if there were any danger of the jury drawing a positive inference from the absence of communication evidence, the jury could be directed that the silence of the evidence was neutral and established nothing either way.
Orders Made
• Evidence of the accused acquiring and having available BlackBerry phones is inadmissible
• If there is danger of the jury inferring lack of evidence of contact means there was no contact, the jury should be instructed that the absence of evidence of contact does not mean there was no contact, and that the evidence is silent on the issue
Key Takeaways
- Under s 65(2)(b) and (c) of the Evidence Act 1995 (NSW), a deceased person's out-of-court representation may be admissible where the surrounding circumstances, including subsequent conduct consistent with the representation, make fabrication unlikely and reliability highly probable.
- Reliability under the hearsay exception is assessed holistically: the deceased's agitated demeanour, the absence of any apparent motive to fabricate, the immediate repetition of the statement to a bystander, and the steps taken immediately afterwards all bore on the analysis.
- Where evidence has only minimal probative value and carries a dual risk of unfair prejudice, including both a misleading implication and an association with separate criminal activity, the mandatory exclusion principle requires that it be kept from the jury.
- The absence of detected communications between co-accused does not, without more, support an inference that no communications occurred; the Supreme Court noted that a jury direction to that effect would be appropriate if needed.
- Rulings on admissibility of motive evidence are not rulings on whether the proposed motive is ultimately established; the court emphasised that its earlier ruling admitting the café conversation evidence did not depend on whether the evidence proved a motive for the killing.
Legislation and Cases Referenced
Legislation
- Evidence Act 1995 (NSW), ss 65(2)(b), 65(2)(c), 136
Cases
- Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; [1987] HCA 58