R v Do (No. 2) [2015] NSWSC 111

Supreme Court New South Wales

Medium Neutral Citation: R v Do (No. 2) [2015] NSWSC 111 Hearing dates: 24 February 2015 Date of orders: 25 February 2015 Decision date: 26 February 2015 Jurisdiction: Common Law - Criminal Before: Davies J Decision: See paragraphs [17], [25] and [33]. Catchwords: CRIMINAL LAW – murder - evidence – relationship evidence – whether particular issues in the relationship between the accused and the deceased should be rejected – evidence having probative value – no unfair prejudice Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Clark v R [2001] NSWCCA 494; (2001) 123 A Crim R 506 Norman v R [2012] NSWCCA 230 Wilson v R (1970) 123 CLR 334 Category: Procedural and other rulings Parties: Crown Tony Thao Do (Defendant) Representation: Counsel: N Noman SC (Crown) C Smith SC and B O'Reilly (Defendant)

Solicitors: Solicitor for Public Prosecutions (Crown) Legal Aid NSW (Defendant) File Number(s): 2012/294022

Judgment 1. The Crown has served a notice under s 67 of the Evidence Act 1995 (NSW) to lead firsthand hearsay evidence of certain matters that might broadly be described as relationship evidence. The evidence is of conversations between the deceased and various persons where the deceased has said things about the accused and her relationship with him. 2. The evidence concerned is specified in the Notice but largely falls into two categories as was accepted by the parties. The first relates to discussions about a prenuptial agreement between the accused and the deceased. The second concerns the position of the accused's visa to stay in Australia. 3. There were a few other passages in dispute. I rejected paragraph 9 of the Statement of Aminda Huynh dated 27 September 2012 as being conclusionary. Portions identified in paragraphs 14 and 15 were not objected to if led in proper form. The highlighted portion of paragraph 19 was objected to on the basis that the evidence did not inform matters about the relationship and was conclusionary. I consider that the material did provide relevant evidence about the state of the relationship but that it needed to be led in admissible form. 4. I turn now to consider the remainder of the material which falls within one or both of the areas mentioned. 5. In each case the defence argues that the evidence is of such little probative value and that that probative value is outweighed by the danger of unfair prejudice to the accused pursuant to s 137 of the Evidence Act 1995 (NSW). In each case the Crown submits that the area of discourse is part of the whole relationship between the accused and the deceased and, in particular, that the matters gave rise to, and contributed to, tension in the relationship between the parties such that it is important that the evidence be before the jury.