IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Criminal Division

S ECR 2022 0164

DIRECTOR OF PUBLIC PROSECUTIONS	Crown	
		
v		
		
THANG MINH HO	Accused	

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JUDGE:	Kaye JA	
WHERE HELD:	Melbourne	
DATE OF HEARING:	29 November 2023	
DATE OF RULING:	30 November 2023	
CASE MAY BE CITED AS:	DPP v Ho (Ruling No 2)	
MEDIUM NEUTRAL CITATION:	[2023] VSC 720	

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CRIMINAL LAW – Manslaughter – Post-offence conduct – Whether prosecution entitled to rely on evidence as incriminating conduct – Departure from scene, disposal of knife, subsequent covering deceased’s bloodstains at scene.

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APPEARANCES:
	Counsel	Solicitors	
For the Crown	Mr J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions	
			
For the Accused	Mr M Turner	Rolfe Criminal Law	

HIS HONOUR:
1	The accused man, Thang Minh Ho, is charged on indictment with the manslaughter of Cuong Van Le on 28 April 2021.  He is also charged with the cultivation of a narcotic plant (cannabis L) in a quantity that was not less than the commercial quantity applicable to that narcotic plant.  On arraignment before the jury panel, the accused pleaded guilty to that charge.
2	The prosecution has now closed its case in respect of the manslaughter charge, and Mr Turner, who appears on behalf of the accused, has announced that he will not call any evidence on behalf of the accused.
3	The prosecution, in accordance with a notice that it served on the accused pursuant to s 19(1) of the Jury Directions Act 2015, seeks to rely on three aspects of the evidence, that has been adduced in the trial, as incriminating conduct.  Mr Turner, on behalf of the accused, has submitted that it would not be open to the jury to use that conduct as an implied admission of guilt by the accused, or as an implied admission by him of an element or relevant fact in respect of the charge of manslaughter against him.
4	In order to determine that issue, it is only necessary to summarise the background facts in the trial in short compass.
5	For some time before April 2021, the accused man had been involved in assisting in the cultivation of a quantity of cannabis at a factory at 37 Wurundjeri Drive, Epping.  Shortly before 28 April, he had ceased to work at the premises.  On 28 April, the accused attended at the factory, for the purpose of seeking to be paid money that he believed that he was owed.  He knocked loudly on the door, and in response, Cuong Le opened the door.  Cuong Le, who was working at the factory, was holding a pruning knife at the time.  After he opened the door, a physical altercation occurred between him and the accused man, during which  Cuong Le was stabbed once in the upper left thigh.  The wound transected the femoral artery and vein of Cuong Le.  He was conveyed to the hospital by two other persons who attended at the factory, but on arrival, he had no pulse and he was not breathing.  A short time later, he was declared to be deceased.
6	After the incident, the accused man walked from the factory carrying a knife in his right hand.  He returned to his vehicle and drove away.  The knife has not been recovered, and the prosecution will invite the jury to infer that the accused man disposed of it following his departure from the factory.
7	Later on the same day, the accused man returned to the factory in his vehicle. He went inside the premises for about five minutes.  While he was there, he placed MDF boards on top of the bloodstaining near the factory door.  Having done so, he exited the factory and drove away.  In his subsequent interview with police, the accused man said that when he returned to the factory, and saw the blood on the floor, he thought that the ‘best thing’ was to keep the scene as it was, and for that purpose he placed three pieces of plaster over the bloodstain in order to preserve it.
8	In accordance with the notice that it served on the defence before the commencement of the trial, the prosecution intends to rely on three items of conduct of the accused as evidence of incriminating conduct, namely, first, his departure from the scene of the stabbing, secondly, his disposal of the knife with which Cuong  Le was stabbed, and, thirdly, the conduct of the applicant in returning to the scene and covering up the bloodstaining on the floor with the MDF boards.
Legal principles
9	The principles, that apply to the question of whether conduct by an accused may be taken into account by juries as incriminating conduct, have been considered in a number of appellate decisions, including the decision of the Court of Appeal in R v Ciantar, and the decision of the High Court in R v Baden-Clay.
10	The three items of evidence, that are in issue in the present case, are sought to be relied on by the prosecution as evidence of an implied admission by the accused man of his guilt of the charge of manslaughter, or a material element of that offence.  In that way the prosecution seeks to rely on the evidence that the accused man acted in that way, as evidence of a consciousness by him that he had intentionally stabbed Cuong, and that he knew or believed that in doing so he had not been acting in lawful self-defence.
11	In determining whether the prosecution may rely on the evidence for that purpose, the test, that I must apply, is not whether I consider that the jury should regard the evidence, of that conduct by the accused, as supporting the guilty inference contended for by the prosecution.  Rather, the question, which I must determine, is whether the jury, acting rationally, could conclude that the evidence of the conduct of the accused man, considered in the context of the other circumstantial evidence in the trial, is capable of supporting that conclusion.
12	Section 21(1)(a) of the Jury Directions Act 2015 provides that if the prosecution relies on evidence of conduct, as evidence of incriminating conduct, the judge must direct the jury that it may only regard the evidence, of such conduct, as evidence that the accused believed that he had committed the offence charged, or an element of the offence charged, if the jury concludes (inter alia) that ‘the only reasonable explanation of the conduct is that the accused held that belief’.  It follows that the test, that I must apply, is whether the jury, acting rationally, could conclude that the only reasonable explanation, for the conduct relied on by the prosecution, is that the accused knew that he had intentionally stabbed Cuong Le in the thigh, and he believed that in doing so he had not been acting in lawful self-defence.
13	Post-offence conduct is a form of circumstantial evidence.  The question whether the jury could permissibly use that evidence, as evidence of an implied admission by the accused, must be considered taking into account all of the evidence in the case.  If, considering the whole of the evidence, the jury could not rationally conclude that the only reasonable explanation for the conduct is that the accused believed that he had intentionally stabbed Cuong Le and that in doing so he had not acted in lawful self-defence — that is, if the conduct in context is ‘intractably neutral’ — then it would follow that the prosecution should not be permitted to rely on that conduct as evidence of incriminating conduct by the accused man.
Analysis and conclusion
14	As I have discussed, there are two principal issues in the trial.  The first issue is whether the accused man intentionally stabbed Cuong Le in the thigh with the knife.  There was no eye witness to the incident, in which Cuong Le sustained the wound to his thigh.  In his interview with police, the accused man did not make any admissions to stabbing Cuong Le.  In his description to the police, of the circumstances of the incident that occurred at the front door of the premises, the accused stated that when Cuong Le came to the door, holding the knife, he grabbed Cuong Le’s hand, so that Cuong Le’s grip on the knife loosened, and the accused got hold of it.  However, the accused did not say that, in that struggle, or immediately after it, he stabbed Cuong Le.
15	The second, and I understand principal, issue in the trial, is whether the accused man was acting in self-defence, if he did in fact intentionally stab Cuong Van Le with the knife.  In particular, as Mr Turner opened the case on behalf of the accused man, the accused man was known to be attending the factory on the day of the incident, for the avowed purpose of destroying the cannabis cultivation operation that was being conducted there.  It was in that context that Cuong Van Le came to the door with a knife, and a confrontation occurred.  Accordingly, it will be submitted,  if the accused man did intentionally stab Cuong Van Le in the leg, in doing so, he was acting in self-defence.
16	It is in that context that it is necessary to determine whether the jury, acting rationally, could conclude that the only reasonable explanation, for the conduct relied on by the prosecution, is that the accused knew that he had intentionally stabbed Cuong in the thigh, and that he believed that, in doing so, he had not been acting in lawful self-defence.
17	The first aspect of the conduct of the accused man, so relied on by the prosecution, was the fact of his departure from the premises, while carrying the knife, almost immediately after Cuong Le sustained the fatal injury to the thigh.
18	The witness HA, who was present at the factory, and who attended Cuong Le shortly after the incident, found him lying on the ground, near the doorway.  It would be open to the jury to infer that, when Cuong Le sustained the knife wound, or shortly after he did so, he fell to the ground.  At that time, no other person was nearby.  When the accused had attended at the premises and knocked on the roller door, HA had rapidly made his way inside the factory and hidden there during the incident.
19	Thus, at the time at which Cuong Le sustained the fatal wound, it would be open to the jury to accept that the accused knew that there was no eye witness to the incident, in which Cuong Le was injured.  In those circumstances, it would be open to the jury to reasonably conclude that the accused man rapidly departed from the premises, holding the knife, because he knew that he had intentionally stabbed Cuong Le in the thigh, and he believed that he did not have any lawful excuse for having done so.  In that respect, it would be open to the jury to consider that, if the accused man had not been responsible for the injury to Cuong Le’s thigh, or alternatively, if he knew that he had been acting in self-defence, he would not have left Cuong Le on the ground, on his own, after he had sustained what appeared to be a quite severe injury to his thigh.
20	Further, for the reasons that I have just discussed, I consider that the jury, acting rationally, could conclude that the only reasonable explanation, for the accused man disposing of the knife after the incident, is that he knew that he had intentionally stabbed Cuong Le with it, and that, in doing so, he had not been acting in self-defence, and he believed that if he retained the knife, it would correctly incriminate him in the unlawful killing of Cuong Le.
21	The third item of evidence in question – the conduct of the accused man in returning to the premises and covering the bloodstains of Cuong Le with boarding – is of a different character.  In my view, the jury, acting rationally, could not reasonably infer, from that conduct, that the accused knew that he had intentionally stabbed Cuong Le, and that he had not been acting in self-defence by doing so, so that he believed that if he did not cover the bloodstains, it would correctly incriminate him in the unlawful killing of Cuong Le.  There are a number of reasons for that conclusion.
22	First, the existence of the bloodstains on the floor could not, of themselves, have incriminated the accused man in the death of Cuong Le.  They did not, of themselves, or in context, demonstrate that he had intentionally stabbed Cuong Le, or that, if he had done so, he had not been acting in self-defence.
23	 Secondly, when the accused returned to the premises, Cuong Le’s body had been removed.  Thus, his actions in covering the bloodstains could not have been directed to concealing the fact of the injury to Cuong Le, or of its consequences.
24	Thirdly, in any event, the boards, which the applicant placed over the large bloodstains, did not cover all of the bloodstains on the floor.  There were bloodstains leading up to, and next to the boards, and, in addition, there were bloodstained footprints leading from the boards.  Thus, the covering of the large bloodstains, left by Cuong Le, with boards, did not at all conceal the stains, or the fact that a significant amount of blood had been shed at the premises.
25	Finally, it is quite evident that, apart from covering large parts of the bloodstains with the boards, the applicant did not make any other attempt to wash away the remaining bloodstains, or to otherwise compromise or delete the evidence that was at the scene.
26	In those circumstances, I do not consider that it would be open to the jury to rationally infer that the only reasonable explanation, for the conduct of the applicant in returning to the premises and covering the bloodstains with boards, was that he knew he had intentionally stabbed Cuong Le, and he believed that, in doing so, he had not been acting in lawful self-defence.  The applicant, in his interview with police, gave an explanation for his conduct, namely, that he placed the boards over the bloodstains to preserve them.  I do not consider it would be open to the jury to exclude that explanation as being reasonably open in the circumstances of the case.
27	For those reasons, I have reached the following conclusions:
(1)	The prosecution may rely on the evidence of the accused man departing from the premises, and subsequently disposing of the knife, as incriminating conduct, namely, as evidence of a consciousness by him that he had intentionally stabbed Cuong Le and that he knew or believed that, in doing so, he had not been acting in lawful self-defence.
(2)	I do not consider that it would be open to the jury, acting rationally, to conclude that the evidence of the conduct of the accused, in subsequently returning to the scene and covering Cuong Le’s bloodstains with boards, is that the accused knew that he had intentionally stabbed Cuong Le in the thigh and he believed that, in doing so, he had not been acting in lawful self-defence.  Accordingly, the prosecution may not rely on that aspect of the conduct of the accused as evidence of a consciousness by the accused that he had intentionally stabbed Cuong Le and that he knew or believed that, in doing so, he had been acting in lawful self-defence.
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