Ngo v The Queen

[2004] HCATrans 185

[2004] HCATrans 185

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S160 of 2003

B e t w e e n -

PHUONG CANH NGO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2004, AT 11.30 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR P.J. PEARSALL.  (instructed by Levitt Robinson)

MR G.E. SMITH:   Your Honours, I appear for the respondent.  (instructed by the Solicitor for Public Prosecutions (New South Wales))

MR GAME:  If the Court pleases, there are four matters we wish to argue on this application and if granted special leave.  I will concentrate shortly on the second, third and fourth, but in view of the time I will say something briefly about the first one, which concerns the video.  Could I take your Honours to page 520 of the application book.  There were two substantial issues that the trial judge had to be satisfied of before making the order.  The first concerned being satisfied that it was not unfair – well, it was unfair to the party opposing the application – and the second, that it was in the interests of the administration of justice that the order be made.  Now, the purpose of the order in this case was, in effect, to anonymise, from the point of view of the applicant, the two witnesses, Mr and Mrs L. 

HAYNE J:   Anonymise to what extent, Mr Game?  Their name was used during the proceedings, was it?

MR GAME:   Anonymise so they could not be seen by ‑ ‑ ‑

HAYNE J:   To that extent, I see. 

MR GAME:   Yes, sorry.  There is a certain irony in the whole thing, which is that the purpose was that they could not see them, but their response to the argument against them was that we knew enough about them to identify sufficient to challenge their credit, but that was a response of the Court of Criminal Appeal.  All I am trying to do in the time available is to show that there is a problem in the way in which the Court of Criminal Appeal disposed of this part of the application and to show that the trial judge’s discretion miscarried in respect of it.  If you have a look at paragraph 123, you will see that the unfairness issue is resolved against us on the basis that his Honour, as it were, balanced the position of the witnesses with the accused.  Now, that is not part of the exercise in the unfairness aspect. 

Then at paragraph 126, the administration of justice issue is resolved against us on the basis that the trial judge engaged in a balancing exercise.  Were that the case, then the administration of justice issue would resolve against us, but if you go back to page 10, which is in the first book, you will see that what has happened is that the trial judge has dealt with the administration of justice question first, and he has resolved that, it would seem, without reference to the interests of the accused, but with reference only to the concerns about whether the witnesses would give the evidence, and on a test that seems to be based on whether or not they actually entertained fears, rather than whether or not, as we would submit, there had to be some foundation for them in fact. 

So we say that both the Court of Criminal Appeal and the trial judge erred at that point.  It is not fatal, but we say that the judge should have done it the other way round.  He should have dealt with, logically, the unfairness issue first and then the administration of justice question second.  Then if you go to paragraph 18 on the next page, you will see that the unfairness issue is dealt with.  In our submission, the Court of Criminal Appeal erred in saying that this involved a balancing exercise, but the unfairness issue really is whether or not the accused should be given the opportunity, as it were, to see the witnesses.  This was resolved against us on the basis that the issue was not whether Mr Ngo could identify the witnesses; you see that towards the bottom of the page.  The question as we see it is whether or not he should have been given the opportunity to do so. 

Now, that is all I want to say about that ground.  I want to turn now to the corroboration issue, and then to move to the lies issue, the guns, and the issue about the acquittal of Mr Dinh.

GLEESON CJ:   Can you just state the facts relevant to the corroboration issue?  I want to be sure I am clear about that.

MR GAME:   Yes, your Honour.  Needless to say, it is factually complicated, but the two principal witnesses in the Crown case are N and T.  Neither of them is Tong Ngoc.  Tong Ngoc sold a gun to N, which was said to be the Beretta which was used in the killing and the Court of Criminal Appeal accepted that they were both accomplices in the relevant sense.  Mr T was on trial with Mr Ngo.  After the first trial, he became a Crown witness.  The framework of the case – he was in the car at the time of the shooting, in the back seat, the passenger seat side.  He said that he had been tricked into getting into the car.  Mr N was involved with earlier attempts but said, in effect, that he withdrew at the last minute.  Tong Ngoc was the person who was said to have sold him the gun. 

Now, although it does not emerge in the judgment of the Court of Criminal Appeal, what we were actually getting at, ultimately, was striking at the corroboration insofar as it related to N and T and the extent to which they could be said to corroborate each other, particularly in view of the fact that in respect of the substance of the case, the central aspects of the case, T knew what N had to say well before he turned Crown evidence.  There were things that emerged subsequently that gave support to both of their credibility, but the point at which we sought to strike at the first level was the corroboration directions themselves, particularly concerning Tong Ngoc and N. 

Now, as I say, it is necessary to show what actually happened.  Throughout the summing up, the language of corroboration was used.  At the very beginning the judge gave the jury directions which were, as it were, founded on section 165 of the Evidence Act, namely, potentially unreliable evidence.  Hearsay was given as an example and the Tong Ngoc evidence was put forward, in effect, as second‑hand hearsay coming from Mr Ngo of his intentions in respect of Mr Newman.  That was put as potentially unreliable evidence. 

Then a little later in the summing up came the directions on the accomplices.  They grew into full‑scale accomplice corroboration directions, as emerged during the summing up.  At that point, his Honour identified what could be regarded as corroboration, and he used the language of corroboration.  For present purposes, items said to be capable of corroboration were the statement of Tong Ngoc that N said the gun was for Phuong Ngo to shoot Newman.  The other pieces of corroboration included the gun and lies, and that comes in the latter part of the argument. 

If you go to how the Court of Criminal Appeal dealt with it, that takes us to the application book at 527.  At page 527 – this is the passage I was telling you about a moment ago – at the top of the page, where his Honour is outlining what, in effect, is the supporting evidence or the corroboration, you see featuring is the Tong Ngoc evidence.  Then his Honour speaks about corroboration, he also speaks about lies.  Now, if you go to the judgment at page 530, it is said that Tong Ngoc’s evidence could corroborate not only N’s credibility, but the fact that N was working for Phuong Ngo.  And this is – if you then go to 535, it is resolved against us on the basis, in effect, that they were not Pollitt type witnesses. 

The problem with that is, we would say Pollitt – what that is a reference to is the possibility of witnesses putting their heads together, but that is not the whole story with respect to corroboration.  The problem here is that what was concerned here with the evidence of N was not the credibility of Tong Ngoc, but the credibility of N.  So you do not really strike at the relevant problem in terms of corroboration if you are allowing Tong Ngoc to corroborate the fact that N was in fact working for Phuong Ngo.  We say that that does raise a question of general importance. 

The second aspect of this, which we say was not dealt with at all by the Court of Criminal Appeal, this aspect – and it was a substantial part of our argument in the Court of Criminal Appeal – is that the framework of the case ultimately ended up with N and T corroborating each other, or particularly, N corroborating T, where there was no addressing at least of the issue of corroboration of accomplices insofar as it raised the Pollitt problem.  So what we say, in effect, is that a substantial part of our argument was not dealt with at all on this, and, secondly, we say that the analysis in respect of Tong Ngoc corroborating the fact that N was working for Phuong Ngo is erroneous. 

Now, if we go then to the question of lies and the gun.  It is important to our argument that the lies and the gun were left as corroboration ‑ ‑ ‑

GLEESON CJ:   Just before you pass from that second point, I presume that on page 582, in paragraph 28, there is a typographical error and that “applicant” should read “respondent”?  Is that right, Mr Smith?

MR SMITH:   No, I think that is the submission of the applicant.  There is another passage just before that that we will be referring to, in that judgment.

MR GAME:   Well, can I just say this.  What happened was that the trial judge said quite early in the summing up that the Evidence Act did not require the directions to be given.  Mr Nicholson then said that they were at least Pollitt type accomplices; you find that at page 528.  Now, what has actually happened in the extraction of this argument in the Court of Criminal Appeal is that that appears as though it appears at the very end of the summing up.  In fact, it was at the very beginning of the summing up.  So, in effect, it appeared that the accused had lost the argument earlier in the summing up, but then persuaded the judge at the very end of the summing up to, as it were, tie in the accomplice corroboration direction.  I know that is not a complete answer to your question, your Honour, but that is how it unfolded. 

If I could now talk about the lies problem and take your Honours to page 536.  The lies and the gun problem emerges in this way.  The lies are extracted at page 537, but the lies can be framed as lies intended for Mr Ngo to keep himself as far away from Voyager Point as he could, because he knew that he had been to Voyager Point because he had disposed of the firearm there.  His Honour – I will not take your Honours to it – his Honour said as much at application book 425.  If you go back then to 536, paragraphs 205 and 206, it is not clear what the court is talking about when they refer to the “acts”, but it would seem in 206 that the court is talking about the lies. 

Elsewhere in the summing up, in the context of examining evidence about an expert on corrosion in metals called Dr McLeod, his Honour told the jury that they did not have to be satisfied that the firearm was the murder weapon.  We accept that that is the case, but remembering always that this is feeding back into the corroboration directions.  Now, the problem is this.  If you then go to page 538, paragraph 214, in the application book, you will see that it is said that the lies did not lose all materiality if the jury were not satisfied that the gun was the murder weapon. 

Now, we accept, as I say, that the jury did not have to be satisfied beyond reasonable doubt that the gun was the murder weapon to convict, but to whatever standard – and we do not say beyond reasonable doubt, but to whatever standard – the jury had to be satisfied that the gun was the murder weapon before the lies had the slightest materiality or the slightest relevance to consciousness of guilt.  And the reason for that is that Mr Phuong Ngo driving in a south‑easterly direction some time after the murder has no materiality in the case unless it is to distance himself from the disposal of the gun at Voyager Point. 

The court says that the lies did not lose all materiality – that is in the fourth to last line of 214 – but nobody has ever put up an argument as to how they could be material without the gun.  As I say, that is a problem about the lies, but that problem then feeds back into the corroboration directions to which I took your Honours earlier.  So we say that there is a big problem about the corroboration directions, both concerned with accomplices corroborating each other and with respect to the lies and the gun, and that this part of our complaint is not addressed adequately or at all in the judgment of the Court of Criminal Appeal. 

I should add this, your Honours.  If the Court is of the view that the issues are sufficiently arguable regardless of the case raising a question of general importance, we would say the sheer seriousness of this case would warrant a grant of special leave under section 35A(b) of the Judiciary Act, or, alternatively, that the special leave application be referred to a Full Court in order that we can, as it were, develop the arguments in full. 

The final point that we wish to argue – and I see the first light has come on – concerns the proposition that Dinh was not the shooter, and it concerns the acquittal of Dinh and the evidence of T.  It unfolded in this way.  The Crown opened on the fact that Mr Dinh was the shooter.  Ultimately, the Crown did not put its case on the basis that Dinh was necessarily the shooter, but, by the time the judge summed up, his Honour left it to the jury on the basis that it did not have to be Dinh and that it could in fact be T. 

Now, without taking your Honours to all the references, what in fact happened was that Dao got a direction that the acquittal of Dinh would impact on T’s credibility insofar as it concerned Dao.  For some reason, this was not done – and no application was made, I must confess – in relation to

Phuong Ngo, but in relation to Ngo the same reasoning applied.  I accept, not to the same extent, because there was other evidence, but the same reasoning applied, because the proposition that Dinh was the shooter depended substantially upon the credibility of T and T’s account.  What was ultimately being posited was that T might in fact be the shooter, which had been introduced into the case by Dinh’s counsel. 

What we say about that is that, a bit like a case like Jones, the jury should have been directed, as they were for Dao, that the acquittal of Dinh may impact substantially on the credibility of T, and that the jury would have to take this into account in their assessment of the evidence of T insofar as it concerned Mr Ngo.  What we say is, the direction that was given would have suggested to the jury that it did not matter in respect of Mr Ngo, because the jury was specifically told it did matter with respect to Mr Dao.  So, in effect, the direction given in respect of Dao worked a disadvantage with respect to Mr Ngo. 

Now, I have put those submissions all fairly briefly, but that is the substance of the matters we would seek to argue if we were granted special leave.

GLEESON CJ:   Mr Smith, we do not need to hear you on the first and fourth of the points that were argued by Mr Game, but can you tell us what you say about points 2 and 3? 

MR SMITH:   Yes, your Honour.  Perhaps just on point 3, the matter said by my friend, the argument that if the murder weapon was not the gun found at Voyager Point, the corroboration material and direction on lies, or the lies aspect, would not count as against the applicant – your Honours, the lies were still relevant.  The basis of proving the lies among other things was some objective evidence from Telstra, showing the movement of a mobile telephone where the calls were made from.  It was always the case of the applicant that he did not leave the club, or very close to the club, that evening, and so the other evidence of the mobile phone movements, even if the gun was not the ultimate gun used, would still be relevant to show the lies. 

Why did he tell these lies?  There was evidence to suggest from other witnesses, including the peaceful Mr and Mrs L, that he had been, as it were, surveying the murder scene two nights before; that the car, the white Camry, a car of a similar type that he usually drove, was seen rushing away from the scene after the murders, on the night of the murders.  And just getting back from that, we would submit that it was reasonable for the jury to find – and we cannot say what they did find – that this was the murder weapon, because the ballistics evidence was very strong, the almost unique hammer that was on that gun being the same or very similar to ‑ ‑ ‑

GLEESON CJ:   That is a different point.

MR SMITH:   Yes, but, nevertheless, that is our submission, that those lies were still relevant to corroborate on other matters.  As to the second point, my friend said that the man N moved out, left the enterprise, soon before the shooting.  On our case, that is not correct; it was some substantial time before.  I will just take you to that.  On the evidence, Mr N said that shortly after the attempts and plans regarding attempts on John Newman’s life ‑ there was an earlier attempt in April at John Newman’s house, where he went inside too quickly; there was another one at a restaurant; and, on Mr N’s evidence, several others, including several at the council chambers that he was expected to be attending – the ambush was to get him in the car park and shoot him there. 

He told the applicant that he no longer wished to be involved, and the applicant told him he could not withdraw, because he had been involved and he knew too much.  He sat quietly and then said he would let him withdraw if he said nothing.  So he did withdraw; he resigned from the club, the Mekong Club, and there was confirmation of him leaving that club on 4 May 1994.  He sought alternative employment with a real estate agent, but was not successful.  About four to five weeks after, he came back and got his job back, but he then refused to allow his car to be used, despite several requests from the applicant.  So, just on that aspect, he was out of that enterprise long before. 

On the question of corroboration generally, and the question of whether an accomplice can corroborate another accomplice, we submit that Pollitt’s Case – the quotation that has been referred to is a bit misleading, the passage that has been read, the one that starts:

The rule that one accomplice cannot corroborate another is based in large part on the common interest of accomplices in minimising their involvement in the offence charged.

That is at page 600.  Immediately before that, Justices Dawson and Gaudron had said: 

There is no rule of law or practice that evidence which attracts a corroboration warning cannot corroborate or be corroborated by other evidence attracting the same warning. 

We made a mistake in our submissions saying it was N and T so far as the purchase of the Beretta, point 3, 2 – N is supposed to have told T that the applicant had – he wanted the gun to kill Newman.  He told this man, Tong Ngoc, I think his name was.  All right, he to an extent is involved, in

that he is supplying a gun and he knows why, but he plays no active role in the joint criminal enterprise for the killing of Newman. 

We submit that, on the chronology of events, T being an accused for some time and being in custody shortly after, once the arrests were made, Ngoc was not approached, as I understand it, until after that.  There is no evidence that they got their heads together to talk about this aspect of the applicant being the person that wanted the gun so he could kill John Newman.  This is back in April or so of that year, 1994, and the murder occurred in September, so this is earlier on.  We submit it certainly could be argued that that evidence fell within the general situation that corroborative evidence can be given by somebody even though he is involved with the other person. 

The exception and the part that Mr Nicholson relied on and my friend has relied on deals with these people such as prison informers and others who have got their heads together.  They could not corroborate each other.  Nevertheless, his Honour gave a number of warnings, a large number of warnings, about the need for independent evidence to corroborate.  So far as N’s evidence is concerned and T’s evidence, the purchase of the guns generally, the other guns – the 45, the Ruger and the point 22 calibre sawn‑off – there is other corroboration of witnesses who were not in any way involved in the joint criminal enterprise and knew nothing about the plans, or were not told about the plans.  There is the telephone evidence as well, and there is the corroboration of the accused’s involvement in it in the eyewitnesses – the neighbours of John Newman – who saw this white car speeding away, as well as Mr and Mrs L. 

So we would submit that, in the circumstances of this case, it was a powerful case with independent corroboration.  Even if his Honour may be criticised, in a sense, for some comment he made about the Ngoc/T corroboration – which we submit still may fall within the exception in Pollitt, the rule that normally applies, which is not the exclusion rule – this was a powerful case and the corroboration was there to convict this applicant, whereas it was not available against the other two that were acquitted.  If the Court pleases.

MR GAME:   Just with respect to the lies, could I just take your Honours to page 425 of the application book, lines 13 to 15.  That is the only relevance that is ever put forward with respect to these lies.  It is suggested, even now, that there are other matters, but it is not suggested what those other matters were and we say that that really defeats the argument put by the judgment in the Court of Criminal Appeal. 

Now, as to corroboration, one of the things we were saying and we do say is that the judge did not say to the jury – and this was not addressed

by the Court of Criminal Appeal – that independent evidence meant independent of the accomplices, at least insofar as they had an opportunity to be appraised of what each other had to say with respect to T and N.  But we put another argument, which is that since these were examples that were given – that is, the Tong Ngoc and N example – the jury would have taken from that that the accomplices could corroborate each other, and the point of that passage that I took your Honours to at the beginning was that that was the judge’s intention.  That is to say, he thought that that was the appropriate approach. 

Once you get into corroboration, in our submission, this question about whether or not Pollitt in fact is the be‑all and end‑all – that is to say, whether it really is the guiding principle – the possibility of witnesses putting their heads together is a matter of general importance.  We say that that cannot be the full reason for the giving of the direction, for the reason I gave before, because accomplices have an interest in minimising their role and throwing the blame on another person.  In this case, they all had an interest in blaming Mr Ngo, and that is not really addressed by a Pollitt type direction.  Factually speaking, it is correct that N left the enterprise a couple of months before, but I do not think anything turns upon that.  Those are our submissions in reply. 

GLEESON CJ:   We are of the view that in this matter there are insufficient prospects of success of an appeal to warrant a grant of special leave and the application is dismissed.

AT 12.01 PM THE MATTER WAS CONCLUDED