Huynh v The Queen [2012] HCATrans 212

[2012] HCATrans 212

[2012] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A33 of 2011

B e t w e e n -

TUAN KIET DAVID HUYNH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 7 SEPTEMBER 2012, AT 11.09 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR S.J. DOYLE, for the appellant.  (instructed by Caldicott and Co)

MR A.P. KIMBER, SC:   May it please the Court, I appear with my learned friend, MS J. LITSTER, for the respondent.  (instructed by the Director of Public Prosecutions (SA))

MS SHAW:   If the Court pleases, the applicant contends that the judgment of the Court of Criminal Appeal in this matter gives rise to two interrelated questions of public importance in criminal trials warranting a grant of special leave:  firstly, when a jury requests and receives a written redirection and the resulting redirection involves a recast exposition of the legal elements of the offence and routes to liability, is the trial judge required to link those directions to the evidence relevant to the case against each accused, in particular, where firstly the case against each accused is different, and secondly, the oral summing‑up had not distilled out the case against each of the accused as if the accused had been tried separately?

The second question is where the written redirections are defective in that they omit an essential precondition to liability, which is in issue in the case, in the present case proof of participation with the necessary foresight, for the purposes of joint enterprise liability, is this an error of law that deprives the accused of a fair trial and is fatal to the verdict?

FRENCH CJ:   That is the key point in this case, is it not, and the question is whether or not it is overcome by what Chief Justice Doyle said at paragraph 98 at page 311?

MS SHAW:   Yes, it is a key question and in particular, your Honour, we say it is not overcome for two reasons.  The first is that on the basis of the evidence the jury were directed that they were entitled to find the accused party to a joint criminal enterprise on the basis of the events that occurred at the Duong house before they departed to the Nguyen house in Vartue Street.  In other words, his Honour directed the jury, which is in the application book commencing at pages 126 to 127, that it was not just conduct at the house that was the basis for liability, that is liability in the sense of being a party to an agreement. 

The jury were entitled to find that the applicant was a party to an agreement by listening, discussing and noticing things that happened at the house, that is on that direction, in the absence of a direction about the need to prove participation with the necessary foresight the jury could have arrived at a verdict without even having got to the events at Vartue Street. 

The second point we make is that the reasoning is defective because it equates participation as an involvement, that is if you are involved you can infer agreement, with participation in terms of the legal requirement for joint enterprise liability, namely participation with the necessary foresight which in this case was foresight of a bladed weapon in furtherance of the criminal enterprise.  If your Honour pleases, the critical issue in this case was the question of whether or not the applicant did, in fact, participate.

So, in our respectful submission, what his Honour says at paragraph 98 at 311 is, indeed, erroneous and picks up to a large extent the erroneous approach of the trial judge in equating participation by reason of factual involvement with the act of participation pursuant to the joint enterprise with the necessary foresight.  Your Honour, that fusing of involvement participation with participation as an element of the offence or a precondition to liability is reflected in the written and oral redirections of the trial judge to the jury.  If your Honours go to the written directions in what was called the aide‑mémoire, in response to the jury question for an ‑ ‑ ‑

CRENNAN J:   This is at 258 to 260?

MS SHAW:   Page 258 is the written direction on joint enterprise.  Your Honours will see that in the first element that his Honour directs the jury is the fact - the need to prove the agreement and his Honour says in brackets:

1.That the accused came to an agreement or made an agreement with others (the participants) to use a knife or similar bladed weapon to kill or cause really serious bodily harm to a person or persons at 8 Vartue Street.

2.That pursuant to that agreement or arrangement a participant killed Thea Kheav by stabbing him.

In other words, what is omitted is a 1(a), namely that the accused performed an act of participation with the necessary foresight in furtherance of the joint enterprise in 1, the necessary foresight being “to use a knife or similar bladed weapon to kill or cause really serious bodily harm to a person”.  In other words, his Honour, in his written and his oral directions, equates “participant” with “party”, that is, a party to the agreement.  Indeed, when his Honour orally directed the jury, that is read out that aide‑mémoire to the jury at page 235, he actually used the words “an arrangement with other participants”.

So, in our respectful submission, the direction that the jury actually received was that “participant” in this context meant “party to the agreement”.  In our respectful submission, his Honour’s - the former Chief Justice’s reasoning is also inconsistent to some extent with the way his Honour concludes that summary of the question that is raised in terms of the failure to direct as to the essential element of participation.  If your Honours go to page 312 where his Honour says, in the last four lines:

Participation in any agreement or arrangement was not the issue in this case.  The real issue was what the jury made of the conduct of the accused, and whether that conduct established the relevant agreement or arrangement.  If it did, it did it by establishing conduct that amounted to participation.

Now, your Honours, of course once the jury were directed that participation in an arrangement was equal to being a party to the arrangement and there was no need to consider whether this particular applicant performed an act of participation then this accused has been deprived of a trial where an essential element of liability has been the subject of fact finding. 

If I could take your Honours to page 325.  Whereas the learned trial judge had not identified the separate issues that related to the case put by each of the accused, the Court of Appeal was able to do it in what we say is three paragraphs and, in relation to the applicant, Huynh, in three lines.  So, at page 325, at paragraphs 159, 161, firstly the court identifies the particular case and issues raised by Mr Duong which include an issue of self‑defence; the separate case put by Mr Sem, which, in essence, as part of a statement to the police was that he had been involved on the roadway and had no further involvement, and the case put by Mr Huynh, namely that there were three witnesses - one at the roadway, Ms Pavic, who was inconsistent, and two witnesses at the gates, one of whom, Mr Rithy Kheav, had described a stabbing after the deceased had already been stabbed, which, of course, was contrary to the Crown case and the objective facts that there was only one stab wound and the only witness therefore that the Crown could seriously refer to was a person called Johnny Lam whose reliability questions were the subject of a separate ground of appeal because of the inconsistencies within his evidence.

In other words, the case put by the accused was that he had not participated and these witnesses could not be acted upon beyond reasonable doubt.  So then when one came therefore to ‑ ‑ ‑

CRENNAN J:   So that was a central issue on that evidence to which you have just taken us?  The participation issue was a central issue, contrary to what was said in the Full Court?

MS SHAW:   That is right, it was the issue.

CRENNAN J:   The issue?

MS SHAW:   The issue, because, in essence, on the Full Court’s reasoning, if we go back to paragraph 311, it was the only basis to infer an agreement against the accused.  Of course, the comments by the court are related to the accused as a group because, of course, at no stage had the trial judge distilled out a separate case against the accused, namely, the evidence that was sought to be relied on to prove joint enterprise liability, the answer made to it, and what the jury had to decide.  So there was no fact finding by the jury either on participation or, indeed, as against the applicant as to joint enterprise, an agreement based on the evidence solely against him.

So, in our respectful submission, the reasoning at paragraph 98 seems somewhat inconsistent with what the court says in paragraph 102.  But, in our respectful submission, neither is a justification in this case for the accused not to have a trial where the separate element of participation, that is, the need to prove participation with the necessary foresight, was the subject of any direction to the jury at all and, more importantly, the jury direction was apt to mislead the jury by using the expression “participation” as equivalent to parties to a joint enterprise. 

Your Honours, in this respect, if I can take your Honours to the oral summing‑up, firstly at pages 147 to 148 which is at the very conclusion of his Honour’s directions on the law, and the sentence I wish to take your Honours to is the last sentence on page 147 where his Honour had referred to the possibility of another man being the stabber and his Honour went on to say:

It would not excuse them if the prosecution have proved that the accused or any one of them contemplated that someone might use a knife to cause grievous bodily harm, that is, it does not matter who that other was, Kimlong Rim or someone else, as long as it was a person who had thrown in their lot in a criminal enterprise in the way that I’ve described.

So let me just repeat, if the prosecution have proved beyond reasonable doubt that the accused or any one of them did contemplate the use of a knife to intentionally cause grievous bodily harm, the accused, or that particular accused, is guilty of murder.

In our respectful submission, that is a defective direction.  It does not include the necessary preconditions of liability and when the reverse is the subject of direction, in the last paragraph, namely:

If the prosecution have failed to prove beyond reasonable doubt that the accused or any one of them threw their lot in with this plan to attack people –

in those circumstances it is a not guilty.  The summing‑up then turned to the addresses of counsel and the argument of the Crown that the issue was, was there a pact, which is on 149.  There were no further directions as to the law and then the jury question comes at page 163, which was on the Tuesday afternoon:

The jury have asked if they could have a written description explaining the components of murder, joint enterprise and aiding abetting and manslaughter, as related to the law to refer to whilst deliberating.

In our respectful submission, that question indicated that the jury had not understood the directions or, at the very least, wanted an explanation and, in our respectful submission, where there had been no distillation of the cases against the accused in the previous day or so and the aide‑mémoire or written direction with a summing‑up was not given until the following Thursday, it would be nigh impossible for a jury to disentangle from the summing‑up the evidence that was relevant to proof of the case against each of the accused. 

FRENCH CJ:   Now, Ms Shaw, much of what you are saying seems to me to be encapsulated in grounds 1 and 2 of your draft notice of appeal at page 343.

MS SHAW:   Yes.

FRENCH CJ:   So far as ground 3 is concerned, would it be unfair to characterise that as really argumentative and not adding anything in terms of the points upon which you seek to obtain special leave?

MS SHAW:   Yes, it is more of an elaboration, if the Court pleases.

FRENCH CJ:   Yes.  Is there any special leave point in relation to 4?

MS SHAW:   Well, your Honours, in our respectful submission, it is not a special leave point per se, we accept that.  In our respectful submission, the evidence against the applicant, as I have indicated, was so thin, it is worthy of a grant of special leave on the basis of the issue of a miscarriage of justice, but we accept that it does not of itself raise a question of special leave.

Your Honours, can we indicate that we support our submission as to the question of principle in relation to the backdrop for the written direction by reference to the judgment of the New South Wales Court of Appeal in R v Towle which your Honours have an extract from in the materials. It is reported (1955) 72 WN (NSW) 338 at 340, and the judgment of the court, in our respectful submission, includes a statement of principle, not just a preferred practice, a principle that seeks to ensure that where accused are tried jointly each accused is entitled to a trial as if he was tried separately. In other words, the statement of principle at 340, which is about halfway down the first column, is that their Honours say:

The jury should be specifically told of the evidence which they may consider against each individual accused, together with appropriate directions as to the legal principles involved.  In this connection it is insufficient to rest such a direction upon the formula that each case must be considered separately, without further explanation –

which we say happened in this case –

To this extent we are of opinion that the summing‑up was defective by reason of the omission to give the jury such directions as would enable them to consider only the evidence admissible against each of the accused as if they had been tried separately.

FRENCH CJ:   But essentially, as I understand it, your point is that the judge did not tell the jury that in order to be convicted on the basis of joint criminal enterprise they had to find some act of participation in the joint enterprise by the applicant.

MS SHAW:   Yes, with the necessary foresight.

CRENNAN J:   With the necessary foresight.

FRENCH CJ:   Yes, with the necessary foresight.

MS SHAW:   Not just factual involvement.

FRENCH CJ:   I am looking at ground 2 of your application.

MS SHAW:   Yes, that is so.

CRENNAN J:   So your complaint about both the oral and written directions is that they do not direct the jury in relation to a necessary element?

MS SHAW:   Yes, in much the same way in Handlen’s Case (2011) 86 ALJR 145, which we refer to in our short list. The jury had been directed in that case that liability was on the basis of a group exercise. The argument was that the failure to direct the jury in relation to an essential element of liability meant that the accused had not had the trial to which he was entitled.

FRENCH CJ:   On that complaint, it does not matter, for your argument, whether the direction was a wrapped‑up narrative or whether the direction had, as it were, severed the case against each accused.  You say this element was not drawn to the jury’s attention.

MS SHAW:   At no stage, that is so.  The jury were not directed that this was a separate element.

FRENCH CJ:   All right.

MS SHAW:   In our respectful submission, therefore, for that reason – and we simply say as a matter of principle there should have been a distillation of the case in any event.  In those circumstances, in our respectful submission, it is worthy of a grant of special leave.

FRENCH CJ:   All right, thank you, Ms Shaw.  Yes, Mr Kimber.

MR KIMBER:   If the Court pleases.  Ms Shaw has spent most of her time on the second special leave question, so I will deal with the first special leave question briefly and quickly.  The essence of the complaint under the first special leave question is that when the further directions were given in writing and read out there was an obligation to again refer to the facts of the case. 

In my respectful submission, the conclusion of the court below, which one will see at appeal book 331 beginning at paragraph 182, that is, that there was no obligation in the particular circumstances of this case to traverse the facts again is not a conclusion which is attended by sufficient doubt.  One has to understand the context in which these written directions were given to the jury.

FRENCH CJ:   Well, I think it would help if you focused your remarks on the issue upon which Ms Shaw did concentrate and that is the asserted failure of the trial judge to direct the jury as to the necessary element of the offence.

MR KIMBER:   Yes.  Can I take the Court to that and can I – the submission I make is essentially this.  There was no dispute in the court below that there had been a failing in the directions.  It was accepted that the jury were not directed, particularly in the written directions, of the requirement of participation after foresight had arisen.

CRENNAN J:   That was accepted in the Court of Criminal Appeal as well.

MR KIMBER:   In the court below, exactly.  That is the conclusion the Court can see set out at application book 310 at paragraph 97.  What is arguably important is that there is no argument as to the principle.  The court below referred to McAuliffe and applied the principles in McAuliffe.  What the court below had to ask itself was because there is this omission is there a risk that the jury have convicted without there being an act of participation and that is the issue that the court then addresses in paragraphs 98 through to 100.

FRENCH CJ:   Is this a proviso reasoning that is being applied here by the Full Court?

MR KIMBER:   It would appear so because the court accepts ‑ ‑ ‑

FRENCH CJ:   It does not expressly address the proviso, does it?

MR KIMBER:   No, it does not, but it is accepted in the last sentence of paragraph 97 that the direction lacked this element of participation but then in paragraphs 98 through to 100 the Chief Justice appears to turn to the question of, well, without stating it in this way, is there a concern that the jury would have found guilt in this case without being satisfied there was an act of participation.

The reasoning that his Honour goes through is in effect this, in my submission.  The jury had to find an agreement.  They were properly directed that they had to find that there was an agreement.  The only way that they could find that this applicant or any accused was part of an agreement was because of an act or acts of participation and therefore once the jury found that there was an agreement, and it is accepted that the only way they could find is because of participation, they must have found that this applicant had participated in the joint enterprise.  So what this is is not an argument about the applicable law, it is an argument about whether on the particular facts of this case there is a risk that the jury convicted without finding that the applicant had participated.

CRENNAN J:   That is an argument in the context of what are the real issues in the case.

MR KIMBER:   Yes, but the real issue in the case was, was this man part of a joint enterprise, either the joint enterprise to kill or cause grievous bodily harm or, alternatively, a lesser joint enterprise, for example, to assault, but continue to participate with the relevant foresight that makes him guilty on the basis of extended joint enterprise.

Now, can I ask the Court to look at application book 310 and in particular at about line 30 where the Chief Justice refers to the judgment of McAuliffe and the remarks of Sir Robin Cooke.  What we see there is the accepted principle that an accused is guilty of something that falls outside of the agreement if they foresee the additional crime and they continue to participate.  So what the law requires is foresight of something else and participation; those two things have to correspond. 

Now, can I ask the Court then, with that in mind, to turn to the written directions about which the real complaint is made and particularly at application book 258 and 259, most helpfully?  At 258 the direction is on joint enterprise to murder and one can see quite plainly that there is a requirement for an agreement.  I say again the only way that the Crown could have proved an agreement in this case was because of acts of participation by the applicant. 

As the court below observed at application book 310 what the court sees at application book 258 is really just taken directly from McAuliffe; common purpose, simple common purpose.  When one goes to application book 259 there we see the direction about extended common purpose and it is with extended common purpose that there is the need for foresight, foresight of the additional crime and participation and those two things corresponding.  With that in mind can I direct the Court to the direction at line 40:

when that person agreed to the assault, he foresaw the possibility –

So it is a narrow direction.  It is directing the jury that when any accused entered into the agreement to assault did he have the foresight of the additional crime?  So the judge is directing them in a favourable and narrow way that there must be correspondence between the agreement and the relevant foresight.  Now then it is relevant to ask how was the agreement proven in this case?  The only way the agreement was proven was by acts of participation. 

So if at the moment of the agreement there was also foresight, as that direction at line 40 requires, and if it is accepted, as it must be, that the only way they could prove or find an underlying agreement was by acts of participation, the participation and the foresight had to correspond.  That is ultimately then going back to what Sir Robin Cooke says which is adopted by this Court in McAuliffe, which is required.

FRENCH CJ:   I am sorry, can you just point me to precisely how it is said in the written direction that the agreement is able to be inferred from acts on the part of the accused?

MR KIMBER:   It is not said in that written agreement and I do not say that it is, but the only way against the ‑ ‑ ‑

FRENCH CJ:   How is the jury to understand that?

CRENNAN J:   Frankly, Mr Kimber, these submissions rather highlight what is complained about and that is that the element – that there was no direction in relation to participation with the necessary foresight.  There was no clear direction in either what was said orally or in these written directions, and you are not able to point to anything that would amount to such a direction.

MR KIMBER:   No, and that is no doubt why the Chief Justice concluded as he did at the very bottom of paragraph 97 that this element of participation was not separately identified for the jury, but that is why he then went on to go, is there a concern that the jury could have found guilt without having found an act of participation in the relevant agreement and with the necessary foresight?  When he examined the facts and considered that the only way that the agreement could have been proven was by acts of participation by this particular applicant, there is no risk then that the jury found he was part of an agreement but he lacked the necessary foresight.

It is not correct to say, in my submission, that the directions in the oral summing‑up did not bring home issues of participation.  There were repeated references in the oral directions to issues of participation.  So, in my respectful submission, there is no dispute about the relevant legal principle.  What this involves is an application of the particular facts of this case to the omission in the directions of this issue of participation. 

I go back again to the direction at application book 259 at line 40.  The foresight of the possibility of the infliction of grievous bodily harm had to exist at the very same time of the agreement.  Now, if the only way to establish the agreement was by acts of participation by this man then there had to be participation and foresight at the same time and that is what McAuliffe requires.  You are only guilty if you foresee someone and you participate with that foresight. 

Well, if at the same time you enter into the agreement and the only way the Crown proves your involvement in that agreement is by participation, and at that very moment, if you had to have foresight, you have participation and foresight at the same time.  That is without going to the particular facts of this case, in the sense that Huynh, the applicant, had

gone to the house as one of a number of people.  Among those people were people that were armed.  Immediately they get to the house, there is an assault of the deceased. 

Huynh is seen by witnesses, both on the roadway and later at the gate, assaulting the deceased and there was no evidence from the applicant to contradict any of that.  There were arguments about reasonable possibilities and so on.  The idea that he did not participate, in my respectful submission, is not borne out by the facts.  If the Court pleases, they are my submissions.

FRENCH CJ:   Thank you, Mr Kimber.  Ms Shaw, we will not need to trouble you in reply.  There will be a grant of special leave on grounds 1 and 2 in the notice of appeal.  Time estimate, Ms Shaw - half a day?

MS SHAW:   Half a day, up to a day, if the Court pleases.

FRENCH CJ:   Mr Kimber?

MR KIMBER:   I would have thought half a day.

FRENCH CJ:   Thank you.  Now, it may be that this will be able to be listed in the November sittings.  In that event, there will be an abridged timetable.  There should be a copy of the timetable available to you. 

The Court will adjourn briefly to allow the video link to be set up with Hobart.

AT 11.43 AM THE MATTER WAS CONCLUDED