Le v The Queen

[2008] HCATrans 73

[2008] HCATrans 073

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B41 of 2007

B e t w e e n -

GHI VAN LE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 8 FEBRUARY 2008, AT 9.53 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   May the Court please, I appear with my colleague, MR J.R. HUNTER, for the applicant.  (instructed by Bell Miller Solicitors)

MR M.J. COPLEY:   I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

HAYNE J:   Yes, Mr Byrne.

MR BYRNE:   An extension of time is required in this matter.  The affidavit setting out the reasons is at page 142 of the application book.

HAYNE J:   What is the attitude of the respondent, Mr Byrne?

MR BYRNE:   I understand he opposes, your Honour.

HAYNE J:   Well, perhaps if you continue with your argument and say whatever you wish to say about extension, as well as whatever you want to say about the merits.

MR BYRNE:   Thank you, your Honour.  Your Honour, we cannot really add to what is in the affidavit in the record book.  The matter came to our instructing solicitors already late and there were then subsequent delays in obtaining the various transcripts.  So far as the application itself is concerned, the issue sought to be agitated is where a Court of Appeal has a judicial task of independently reviewing the evidence, what level of accuracy in stating that evidence to be reviewed is required.  Is it, as put forward by the respondent in their written outline at page 155 of the application book about line 20, that the assessment was “substantially”, my emphasis, “correct”.

The importance of the issue I can take your Honours to quickly, it is set out quite well, with respect, in the judgment of his Honour Justice Jerrard at page 129 of the application book, paragraphs 20 and 21, denote the somewhat, with respect, unusual course adopted by the prosecution at trial.  There was an orthopaedic surgeon who had operated on the complainant and expressed a firm opinion as to the exit wound and the entry wound, in particular the entry wound being from the front, the exit wound being from the back.  He was firm on that opinion.

As set out in paragraph 21, the prosecution preferred at trial to rely on an ambulance officer who put the wounds the opposite way around.  The importance of that can be seen then at paragraphs [27] and [29] at pages 131 and 132 of the application book in his Honour’s assessment of Xuan’s evidence.  Your Honours will see at about line 48:

Xuan then described Ghi Le pushing Hoang, Hoang pushing back, Xuan attempting to break them up, and “then Ghi left.”

As the footnote there denotes:

That short sentence accorded with Ghi Le’s interview with the police, and was his defence.

It said at the top of the next page that the first shot, from his evidence, was fired from inside of the house, whereas the applicant on all the evidence was outside of the house.  Then the last two sentences of paragraph [29] his Honour addresses that evidence as supporting the applicant’s claim to police and Hoang’s evidence, that is the complainant, that the applicant “had simply argued” and “left before any shooting”.  That account, it said:

is also supported by the simple fact that Ghi Le also remained uninjured, although he had been on the landing . . . out of which a bullet or bullets were fired.

One then comes to what is put forward as the error, and that is contained in paragraph [22] at page 130 of the application book ‑ ‑ ‑

HAYNE J:   Just before you come to that, what is the significance of front or back entry of the shot to the prosecution case of joint enterprise?

MR BYRNE:   The significance is the prosecution case which on whichever basis it was framed had the persons said to be part of the joint enterprise outside the house.  If the shot that is the contentious one here was fired from within the house, then it was not a shot fired by any person involved on the outside, obviously, and that was the critical issue.  Essentially, that raised hypotheses consistent, it was argued, and is argued, with innocence.

When then his Honour came to consider the contrast in expert evidence, as it was put forward at trial, his Honour noted that the ambulance officer was not cross‑examined at all on his opinion.  That is a firm statement and it is, in our respectful submission, simply an incorrect one.

HAYNE J:   Let it be assumed that that is an error.  What is the significance of the error for the conclusion of the Court of Appeal on an M v The Queen inquiry?  In particular, could the Court of Appeal on such an inquiry for itself make any assessment of which of the two pieces of evidence was to be preferred?

MR BYRNE:   The Court of Appeal, in our submission, was required to make an assessment of the two pieces of evidence, and our ‑ ‑ ‑

HAYNE J:   Could it choose between them?

MR BYRNE:   It could, except – yes, it could, your Honour.

HAYNE J:   How, without seeing the witnesses and the like?  You have two witnesses, you say, of differing qualification who express opinions about which was the entry wound and which was the exit wound.  How is the Court of Appeal on review of the transcript to choose between them, or is this quintessentially a jury question?

MR BYRNE:   I can take the Court to the statement which was adopted in M v The Queen.  It is set out in the joint judgment there, of course, and the case we have supplied is MFA v The Queen 213 CLR 606, and the passage is set out at 615, where, as your Honours would be more than well aware, the question which the Court must ask itself was whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

Now, the task confronting the Court of Appeal here was that the jury had answered the question positively.  They were satisfied on the evidence of the guilt of the applicant.  It was then incumbent, in our submission, upon the Court of Appeal in assessing that evidence, and accordingly assessing the reasonableness of the jury verdict to correctly understand and to correctly state what the evidence was so the Court of Appeal could put itself as best as possible in the position of the jury.

HAYNE J:   But at the end of the day if you come here you would have us undertake the task that the Court of Appeal should have taken, and the question you then have to confront is whether, doing what the Court of Appeal should have done, there would be a different answer given.  The point I want you to grapple with is, how would an appellate court be persuaded that it was not open to the jury to conclude beyond reasonable doubt that this man was shot in the way he is said to have been.

MR BYRNE:   The task of the Court of Appeal was, given the different levels of expertise of the two experts, the Court of Appeal properly instructing itself could have formed a view that the jury was unreasonable in accepting the evidence of the ambulance officer over the surgeon.  What the error here we say is is that the Court of Appeal never got to that point properly because the Court of Appeal did not state for itself the true position of the evidence at trial and the way the trial was conducted.  That being so, the Court of Appeal has not carried out its statutory function of independently reviewing the evidence.

The proper procedure would be, in our submission, once that error is found, and if your Honours accept the proposition we put forward as creating either a point of special importance or a point of personal injustice for the applicant, then the matter should be remitted to the Court of Appeal to consider afresh according to a proper appreciation of the evidence.  Those are our submissions, unless we can assist the Court further.

Le
Hayne, Kiefel JJ
Canberra – 8/2/08

HAYNE J:   Yes, thank you, Mr Byrne.  We will not trouble you, Mr Copley.

We are not persuaded that it is arguable that the actual orders made by the Court of Appeal are attended by doubt.  Accordingly, it is unnecessary to decide whether an extension of time should be granted.  The application for special leave is dismissed.

The Court will adjourn to reconstitute.

AT 10.03 AM THE MATTER WAS CONCLUDED