DPP v Nguyen, Ho & Nguyen (Ruling no 4)
[2007] VSC 311
•22 August 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1529 of 2005
| THE QUEEN |
| v |
| DANG KHOA NGUYEN, BILL HO AND DANG QUANG NGUYEN |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 22 August 2007 | |
CASE MAY BE CITED AS: | R v Nguyen, Ho and Nguyen (Ruling No. 2) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 311 | Revised 31 October 2007 |
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EVIDENCE – Propensity evidence - Admissibility of evidence of criminal behaviour of accused – Whether prejudicial effect of evidence outweighs probative value - Section 398A Crimes Act 1958.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Pirrie with Mr R Hammill | Office of Public Prosecutions |
| For the First Defendant | Mr W Toohey | Haines & Polites |
| For the Second Defendant | Mr W Stuart | Valos Black & Associates |
| For the Third Defendant | Mr M Rochford | Michael J Gleeson & Associates |
HER HONOUR:
Mr Dang Khoa Nguyen (“Mr Khoa Nguyen”), Mr Bill Ho and Mr Dang Quang Nguyen (“Mr Quang Nguyen”) have each been charged with the murder of Mr Hieu Luu, the attempted murder of Mr Chau Nguyen and the intentional injuring, without lawful excuse, of Mr Viet Tran and Mr Hung Nguyen at a Carlton flat on 8 November 2004.
Each of the accused admits being present when Mr Luu and Mr Chau Nguyen were shot. Mr Luu died as a result of the shooting. Mr Chau Nguyen survived.
Further, Mr Bill Ho admits shooting Mr Luu and Mr Chau Nguyen. He has also foreshadowed a concession at trial that Mr Duong was indebted to him in relation to a drug transaction at the relevant time.
The prosecution alleges that Mr Khoa Nguyen and his brother, Mr Quang Nguyen, aided and abetted Mr Ho in the murder of Mr Luu and the attempted murder of Mr Chau Nguyen or acted in concert with him or with a common purpose.
Mr Quang Nguyen admits that he had a sword with him in the flat on the night upon which the prosecution alleges that Mr Viet Tran and Mr Hung Nguyen were injured when they were cut by that sword. The prosecution also alleges that Mr Khoa Nguyen and Mr Ho acted as accessories in relation to Mr Quang Nguyen’s crime.
The prosecution seeks to lead evidence as to Mr Khoa Nguyen’s involvement in drug dealing activity with a prospective witness Mr Mau Duong. The evidence is said to relate to Mr Khoa Nguyen’s motive to aid and abet the commission of the offences by his co-accused, or to act in concert with them or pursuant to a common purpose. Mr Khoa Nguyen objects to the admission of the evidence on the grounds that its probative value is outweighed by its prejudicial effect.
The evidence of the dealings between Mr Khoa Nguyen and Mr Mau Duong
Mr Mau Duong made the written statement to police on 8 November 2004. In passages which the prosecution argues are admissible and which Mr Khoa Nguyen asks the Court to exclude, Mr Duong describes his relationship with Mr Khoa Nguyen during the period of some two week period leading up to that date. For convenience, I have summarised and paraphrased the content of the challenged paragraphs of the statement.
Mr Duong states that he called Mr Khoa Nguyen “Anh Khoa” (using the Vietnamese term “Anh” or “older”). He said Anh Khoa was about 35 years old in 2004. Mr Duong and Anh Khoa met at a restaurant and bar in Richmond named “Bon Mua” (which means “Four Seasons” in the Vietnamese language). The two men exchanged mobile telephone numbers.
Mr Duong was living with a man named Viet at the Carlton flat where the offences allegedly occurred on 8 November 2004. A couple of weeks earlier, Mr Duong had phoned Anh Khoa on the mobile phone number provided and had arranged to purchase drugs which he instructed Anh Khoa to bring to him at the Carlton flat.
After a number of telephone calls, heroin was dropped off at the flat whilst Mr Duong was out. Viet informed him that a man whom Viet knew as “Bill” had brought the drug.
After selling the heroin, Mr Duong called Anh Khoa, on the same phone number, about four or five days before 7 November 2004, to arrange payment of the price of $5,200. Payment was made by Mr Duong, in the vicinity of the “Four Seasons” restaurant, to a man who introduced himself as “Bill” and was accompanied by a female named Linh. Mr Duong described Bill as being Asian and as about 25 or 26 years old. He said that Bill was about his own height and of medium build, with dyed short yellow hair.
Linh later telephoned Mr Duong and instructed him to deal with her and Bill, rather than with Anh Khoa.
Mr Duong stated that he rang Anh Khoa again on Friday, 5 November 2004, some two nights before the alleged incidents. He told Anh Khoa that he needed some more drugs. Anh Khoa instructed him to go to the “Four Seasons” restaurant again and said that “the girl” would bring the drugs to him.
Mr Duong drove to “Four Seasons”. He telephoned Anh Khoa and was told to wait. Linh emerged and gave him an ounce of heroin. On Saturday 6 November, Mr Duong gave the drugs to Viet at the Carlton flat. Mr Duong also said that he drove past flats in Richmond that day and saw Bill in a new model white Nissan Skyline with Linh.
Anh Khoa called Mr Duong on his mobile telephone between 5.00 and 6.00 pm on Sunday, 7 November 2004. Mr Duong said that his girlfriend answered the telephone and told Anh Khoa that he was not there. Mr Duong did not return Anh Khoa’s call.
(I note at this point that counsel for Mr Khoa Nguyen also challenges Mr Duong’s evidence as to the report of the telephone call on the grounds that it is hearsay.)
Submissions
The prosecution argues that the evidence of drug dealing between Mr Khoa Nguyen and Mr Duong is relevant and admissible, notwithstanding that it might be regarded as evidence of Mr Khoa Nguyen’s propensity for criminal activity or be otherwise prejudicial. The prosecution does not seek to use it as evidence of propensity.
The prosecution argues that the evidence bears upon the relationship between Mr Khoa Nguyen and Mr Duong, Mr Khoa Nguyen’s state of mind at relevant times and his alleged motive for acting as an accessory to the crimes of Mr Ho and Mr Quang Nguyen. It contends that the evidence intimately connects Mr Khoa Nguyen with the events of 8 November 2004. It explains his admitted presence at the Carlton flat as being for the ultimate purpose of the collection of a drug dealing debt. The prosecution submits that the jury would be directed by the Court not to misuse the evidence in an impermissible way.
Mr Khoa Nguyen contends that the evidence is of little probative effect and that its admission would be highly prejudicial to him. He argues that the deliberations of the jury are likely to be affected by the probability that it would be prejudiced against drug dealers, in general, and drug dealers of Vietnamese origin, in particular. Mr Khoa Nguyen argues that the jury might impermissibly reason that such persons have a propensity for criminal activity and that Mr Khoa Nguyen committed the alleged offences as a result.
Counsel for Mr Khoa Nguyen disputes the prosecution’s proposition that the evidence of Mr Duong is highly probative in relation to his client’s state of mind or motive to aid and abet or act in concert with Mr Ho and Mr Quang Nguyen. He contends that the evidence is only of limited probative value as evidence of a motive or a relevant state of mind on the part of Mr Khoa Nguyen, because it does not include any evidence that any debt which Mr Duong might have owed to him was payable immediately or as a matter of urgency. He contends that the evidence might be probative of the fact that his client went to the flat to look for Mr Duong, but that it would not be probative of a motive to aid and abet or act in concert with the men committing the alleged crimes.
Counsel for Mr Khoa Nguyen also argues that there is no other foreshadowed evidence which explains why Mr Khoa Nguyen was at the flat that night.
The prosecution has indicated that it will contend that Mr Khoa Nguyen and the other men came to the flat to find Mr Duong on the night of 7-8 November 2004. Counsel for the prosecution submits that there is other evidence probative of the fact that Mr Khoa Nguyen was present for that purpose.
Counsel for the prosecution points to evidence of Optus and Vodaphone telephone records which indicate that calls were made at relevant times, to and from mobile telephones using the numbers which the men had exchanged. It alleges that the evidence demonstrates that Mr Khoa Nguyen had tried to get in touch with Mr Duong in relation to the heroin he had supplied. It strongly corroborates Mr Duong’s account of the relationship between himself and Mr Khoa Nguyen.
The prosecution also relies upon foreshadowed evidence from a number of eye witnesses to the effect that one or more of the accused men were asking as to the whereabouts of an individual identified as “Mau”, after they entered the Carlton flat on the night in question.
Mr Tien Pham gave evidence in the voir dire hearing that, some three minutes after opening the door to the three men who entered the flat, he heard a man, who he thinks was Mr Ho, yelling : “Where’s Mau? Where’s Mau?”.
Ms Kathleen Quach made a statement to police on 8 November 2004 to the effect that all three of the men who had come into the room were walking around the room asking for “Mau”.
Counsel for Mr Khoa Nguyen argues that the Court should disregard Ms Quach’s statement, in light of her subsequent evidence in the voir dire hearing. There, she affirmed her statements during examination‑in‑chief. However, under cross‑examination, she said that she had first seen the three men in the room “when they started arguing asking where Mau is.”[1] She also said that she remembered that one of the men was asking where Mau was during a conversation before the first weapon, a machete, was produced. She did not recall which man made the enquiry.
[1]Voir dire hearing on 14 November 2006 : T43 lines 7-8.
The passage of cross‑examination, now particularly relied upon by counsel for Mr Khoa Nguyen, is recorded in the transcript of Ms Quach’s evidence at the voir dire as follows:
What conversation do you remember before you see that first weapon produced?---One of the defendants was asking where Mou (sic) is.
Do you know which one?---No.
So where’s Mou (sic), that’s all you know that was said. Can you remember any other words?---No.
So the only words you remember is (sic) where’s Mou?---Yes.
Nothing else before the first weapon, the knife, is produced?
---They were saying something else, but I wasn’t paying attention, because three of them were separated and they were all asking, yes.[2]
[2]Voir dire hearing on 14 November 2006 :T 59 line 25-T60 line 4.
Counsel for Mr Khoa Nguyen argues that the Court should, as a matter of logic, ignore Ms Quach’s statement to the effect that all three men were asking as to the whereabouts of Mr Mau Duong, in light of that passage of evidence under cross‑examination in the voir dire.
I do not agree. I am not persuaded that Ms Quach was, indeed, retracting her previous account that the three men were enquiring about Mau, given her confirmation of the truth of her statement and her evidence about the three men arguing and asking where Mau was.
The witness and victim, Mr Hung Nguyen, made two statements to police on 8 November 2004. In the first, made in the early hours of the morning, at 4.58 am, he said that he had never seen the men who walked into the flat before. He is recorded as saying that one of the men said in English “where is Mao (sic) ?”. Like a number of the witnesses, later, at 1.36 pm on the same day, Mr Hung Nguyen made a second statement. There, he is recorded as having told police that the person who asked for “Mao” was a man who had visited the flat on a previous occasion. Under cross-examination at the committal, Mr Hung Nguyen gave evidence that the men who entered the flat asked him if Mau was present and he said that he was not.[3]
[3]Committal hearing on 27 July 2005: T 158 lines 7-8.
Mr Chau Nguyen, the victim of the alleged attempted murder, made a statement to police on 19 November 2004. He told police that the man, who the prosecution will allege was Mr Khoa Nguyen, instructed Mr Ho to shoot him. He confirmed the truth of the contents of his statement in his evidence in chief at the committal[4]. At the committal he also identified the photograph of Mr Khoa Nguyen as a photograph of the man who gave the order that he be shot.[5]
[4]Committal hearing on 25 July 2005 : T 29 lines 31-33.
[5]Committal hearing on 25 July 2005 : T53 lines 24-5.
Counsel for Mr Khoa Nguyen submits that Mr Chau Nguyen’s evidence is only evidence of his interpretation of what Mr Khoa Nguyen said. He contends that there are other interpretations of his words which are open and notes that Mr Nguyen said that Mr Khoa Nguyen said “something like” what he reported.
Relevant legal principles
There was no dispute between the parties as to the admissibility of evidence of relationship which was relevant to a fact in issue such as the state of mind of the accused at a relevant time or the existence of a motive.
Counsel for the prosecution referred to R v Anderson[6] where it was held that relationship evidence was properly admitted as relevant to the state of mind of the accused at the time of relevant events. The purpose for which such evidence is sought to be admitted will impact upon the degree of cogency required to support its admission.[7] Winneke P distinguished between the situations in which a court is considering the admission of evidence tendered as proof or propensity, in the sense that the accused was the type of person who would be likely to commit the alleged crime, and that relating to the accused person’s state of mind at the time the relevant act occurred. In the former case the courts have acted cautiously, requiring “a compelling degree of cogency”[8]. In the latter, the court must be satisfied that the evidence is relevant to a fact in issue and warn the jury against its misuse as evidence of propensity[9].
[6](2000) 1 VR 1.
[7](2000) 1 VR 1 at 15 [35] per Winneke P.
[8](2000) 1 VR 1 at 14 [34].
[9]Ibid.
In a passage, cited by Winneke P from the judgment of Barwick CJ in Wilson v R[10], the learned Chief Justice said :
It is not in my opinion only in those cases where the evidence of the relations of the accused with others tends to establish motive that it is admissible though that may be the commonest case of its use with which the reported cases have had mostly to deal. If the evidence does tend to explain the occurrence, or, as in this case, to assist the choice between the two explanations of the occurrence, then in my opinion, on general principles, because it is relevant it is admissible.[11]
[10](1970) 123 CLR 334.
[11](1970) 123 CLR 334 at 339.
I note that, even if the admissibility of the challenged evidence were to be considered under s 398A of the Crimes Act 1958, on the basis that it might properly be characterised as “propensity evidence” within the meaning of s 398A(2)[12], the applicable test for admissibility has been described as “not far removed” from the common law test requiring a balancing of probative value and prejudicial effect[13]. The burden of justifying the admissibility would fall on the prosecution.[14]
[12]See : R v Tofilau (No 2) (2006) 13 VR 28 at 31 [3] per Callaway JA.
[13]R v Tektonopoulos [1999] 2 VR 412 at [19] per Winneke P.
[14]R v Tofilau (No 2) (2006) 13 VR 28 at 31 [3] per Callaway JA.
Conclusions
In my opinion, the probative value of the challenged evidence is not outweighed by its prejudicial effect. When considered in its evidentiary context, it is, in my view, highly probative evidence of the relationship and dealings between Mr Duong and Mr Khoa Nguyen and directly relevant to the issue of the latter’s state of mind at relevant times and his motive to commit the alleged offences. (I note that I am of that view, regardless of whether or not Mr Duong’s evidence as to his girlfriend’s report of a telephone call on the night of 7 November 2004 is ultimately received into evidence.)
The evidence does enable other evidence as to the alleged events of 7 and 8 November 2004 to be assessed in a realistic context and setting. However, as I have pointed out, in my opinion, it is more than just evidence of background.
The prejudicial effect of the evidence can be reduced by direction to the jury specifying the purpose for which the evidence is led and warning it against its misuse as evidence of propensity to commit crime and therefore the alleged crimes.
I am persuaded that the evidence of Mr Duong should be admitted before the jury.
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