Nguyen v R
[2012] ACTCA 24
•May 22, 2012
PHUONG VIET NGUYEN v THE QUEEN
[2012] ACTCA 24 (22 May 2012)
CRIMINAL LAW – practice and procedure – trial by judge alone – whether the verdict of the trial judge was unsafe and unsatisfactory – whether the trial judge erred in finding that there was no evidence before him that could be seen to form the basis of a rational inference that the person who committed the offence was someone other than the appellant – whether the trial judge failed to include in his judgment the principles of law applied by him and the findings of fact on which he relied – appeal dismissed
Crimes Act 1900 (ACT), s 27
Supreme Court Act 1933 (ACT), s 68
Criminal Procedure Act 1986 (NSW), ss 32, 33
R v Mulcahy [2010] ACTSC 98
R v DM [2010] ACTSC 137
R v Prasad (1979) 23 SASR 161
R v Marshall (1987) 49 SASR 133
Fox v Percy (2003) 214 CLR 118
Fleming v The Queen (1998) 197 CLR 250
AK v Western Australia (2008) 232 CLR 438
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 15-2011
No. SC 118 of 2010
Judges: Higgins CJ, Refshauge and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 22 May 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 15-2011
) No. SC 118 of 2010
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:PHUONG VIET NGUYEN
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Higgins CJ, Refshauge and Lander JJ
Date: 22 May 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 15-2011
) No. SC 118 of 2010
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:PHUONG VIET NGUYEN
Appellant
AND:THE QUEEN
Respondent
Judges: Higgins CJ, Refshauge and Lander JJ
Date: 22 May 2012
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
This is an appeal against conviction.
This appeal first came on for hearing before this Court on 3 November 2011 when it was adjourned so that the appellant could add a further ground of appeal.
Subsequently, on 10 November 2011, an amended notice of appeal was filed.
For the reasons which follow the appeal should be dismissed.
The Facts
The appellant was charged with three offences: first, that on 19 October 2009, he discharged a loaded firearm at Thanh Tran; secondly, that on the same day he attempted to murder Mr Tran; thirdly, and in the alternative to the second count, that he discharged a loaded firearm at Mr Tran.
The appellant elected to be tried by judge alone. On 23 February 2011, the trial judge entered a verdict of guilty in respect of the first and third counts, and a verdict of not guilty in respect of the second count.
The appeal is against the verdicts of guilty on the first and third counts.
There are two grounds of appeal:
1. The verdicts of His Honour were unsafe and unsatisfactory.
2.To the extent that it was appropriate to analyse the case against the appellant in terms of it being a circumstantial case, His Honour erred in finding that there was “no evidence before me that could be seen to form the basis of a reasonable inference that it was any person other than Phuong Nguyen”. The Crown bore the onus of proving the case beyond a reasonable doubt. The obvious reasonable inference that was available was that it was not the appellant who discharged the firearm involved “at” the complainant.
The additional ground of appeal is:
His Honour, contrary to section 68C of the Supreme Court Act 1933, failed in his judgment to adequately include the principles of law applied by the judge and adequately state the finding of facts relied upon in finding the appellant guilty of counts 1 and 3.
Particulars
1.His Honour failed to reproduce on the face of his judgment the standard principles that apply to all criminal trials, such as the presumption of innocence, the burden of proof and the beyond reasonable doubt standard.
2.His Honour failed to acknowledge relevant law that would apply to cases involving essentially one person’s word against another.
3.His Honour failed to address the chronology of events surrounding Mr Tran’s reporting of the incident to the police given the matter was central to the complainant’s credit.
4.His Honour failed to make appropriate findings of fact in relation to the evidence of Ms Robertson.
5.His Honour failed to make findings of fact that were foundational to the decision as to whether the appellant fired “at” the complainant.
6.His Honour failed to record adequate reasons as to why the complainant was to be accepted as to the issues of identity and whether the appellant fired “at” the complainant.
7.His Honour did not adequately record and deal with the arguments advanced by Counsel for the accused in respect of matters going to the credit of the complainant.
The first ground was supported by a number of particulars which, for completeness, we set out:
a.His Honour erred in finding that the evidence of the complainant Thanh Tran was capable of acceptance to the requisite standard in respect of the elements of the offences including, but not limited to, the issue of identification.
b.His Honour made findings in respect of the credit of the witness that were inconsistent with his eventual acceptance of the evidence of the complainant on the issue of identification.
c.His Honour failed to advert to the fact that the reliability of the complainant was central not only to the question of identification but whether, relevantly, the firearm was discharged “at” the complainant. Whilst identification evidence was a central issue, it was not the only issue that was relevant at trial.
d.His Honour erred in finding that the evidence of complaint made to Rebecca Weatherill provided “additional support” for the “shooter” being the appellant.
e.His Honour, in finding that the evidence of Gay Robertson provided “additional support” for the “shooter” being the appellant, misconstrued the effect of that witness’s evidence. In fact, if accepted, the identification/description evidence of that witness tended to exclude the appellant as the person who committed the offences.
f.His Honour made no finding as to the position of the accused when the appellant accused was said to have discharged the firearm at the complainant for the first time (count 1). Given that failure, it could not be said that the appellant discharged the firearm “at” the complainant.
g.His Honour’s findings as to the position of the complainant at the time the firearm was discharged for the second time (count 3) were inconsistent with a finding that the firearm was discharged “at” the complainant.
In his reasons for the verdicts at which he arrived, the trial judge did not give himself any particular directions that he would have otherwise given to a jury if the trial had been by jury. Rather, he said that he adopted the detailed directions set out by Nield AJ in R v Mulcahy [2010] ACTSC 98 (“R v Mulcahy”), as Refshauge J had done in R v DM [2010] ACTSC 137 (“R v DM”). The relevant passages in R v Mulcahy are, we think, as follows:
13.A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair trial according to law. The fundamental rules which govern a criminal trial are these.
14.The Crown bears the onus, burden or obligation, to use three interchangeable words, to prove the guilt of the accused. The Crown has asserted that the accused has committed a criminal offence, therefore the Crown must prove that the accused committed that offence. The accused does not have to prove that he did not commit that offence.
15.The level or standard of proof required in a criminal trial is proof beyond reasonable doubt. The accused cannot be found to be guilty of the offence unless the evidence, which I accept, satisfies me beyond reasonable doubt of his guilt.
16.The accused is presumed by law to be innocent of the offence with which he stands charged unless and until the evidence which I accept satisfies me beyond reasonable doubt of his guilt. If the evidence which I accept satisfies me beyond reasonable doubt of his guilt, then he loses the presumption of innocence and the appropriate verdict is guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of his guilt, then he remains presumed to be innocent and the appropriate verdict is not guilty.
17.In addition to the fundamental rules which govern a criminal trial, the following rules have been developed.
18.As I am the judge of the facts, as well as the judge of the law, I must bring an open and unbiased mind to the evidentiary material. I must view that material coldly, clinically and dispassionately, and I must not let emotion enter into the decision-making process, because both the Crown and the accused are entitled to my verdict free of partiality or prejudice, favour or ill will.
19.I must determine whether each of the witnesses is a reliable witness. That is, whether the witness has an accurate memory of the event about which the witness has given evidence.
20.I must determine the relevant facts according to the evidentiary material, considered logically and rationally, without acting capriciously or irrationally.
21.I may use my common sense, my individual experience and wisdom, in assessing the evidence given by the witnesses.
22.I am not required by any rule of law, logic or common sense to accept a witness wholly or to reject a witness wholly. I can accept everything that a witness has said if I consider all of it worthy of acceptance, or I can reject everything that a witness has said if I consider none of it worthy of acceptance, or I can accept that part of what a witness said that I consider worthy of acceptance and reject the rest of what that witness said as I consider it unworthy of acceptance.
23.The accused gave evidence on oath. He was not required to do so; he could have elected not to give evidence. By giving evidence he became a witness in his trial. His evidence is not any better or any worse than the evidence of other witnesses in his trial simply because he is the accused. His evidence falls to be considered in the same way as the evidence of the other witnesses in his trial falls to be considered. However, by giving evidence he did not assume any burden, onus or obligation to prove anything in his trial.
24.In a criminal trial the Crown must prove the essential elements of the charge beyond reasonable doubt. The Crown does not have to prove everything about which evidence has been given beyond reasonable doubt. …
During the trial, counsel for the prosecution indicated that he would not make any submissions as to the second count, the attempted murder charge, because of the absence of any evidence of motive and because of inconsistencies in the evidence as to the circumstances of the firing of the two shots. That meant, as the trial judge has recorded in his reasons, the verdict on the second charge had to be one of not guilty.
Counsel for the appellant submitted that there was no case to answer on the first and third charges or, in the alternative, the circumstances were such that they warranted the trial judge directing himself in accordance with R v Prasad (1979) 23 SASR 161. That submission was rejected by the trial judge, and no complaint is made in relation to that ruling.
Again at trial, counsel for the appellant argued that an offence under s 27(3)(d) of the Crimes Act 1900 (ACT) required proof by the prosecution that an accused person who discharges a loaded arm must do so “directly at” the victim rather than “in the general direction” of the victim because to scare a victim would not suffice for that paragraph of that section.
Section 27(3)(d) provides:
(3)A person who intentionally and unlawfully—
…
(d)discharges any loaded arms at another person or so as to cause another person reasonable apprehension for his or her safety;
…
is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
The trial judge considered the meaning of “at” and held that, in the context of the paragraph, it meant “in the direction of”. He followed the decision in R v Marshall (1987) 49 SASR 133, which was concerned with a statute relating to “felony murder”, and in which the Full Court of the Supreme Court of South Australia rejected the contention that “shooting at” might be given the meaning “shooting very dangerously close to”. In that case, the preferred construction was that “shot at” meant “shot in the direction” of the victim.
No complaint is made in respect of that ruling on this appeal.
The key prosecution witness, as the trial judge said, was the victim, Mr Tran. However, there were three other witnesses who were of particular importance, namely Rebecca Weatherill and Jason Dukic, who resided at the house where the shooting took place, and Gay Robertson, who lived next door.
The rest of the witnesses were forensic scientists, police officers, telephone company employees, the doctor who treated the laceration to Mr Tran’s head, and a cousin of Mr Tran who acted on occasions as an interpreter.
Prior to the shooting Mr Tran and the appellant were friends.
On 19 October 2009, Mr Tran was living in a tent in the back yard of a house occupied by Ms Weatherill, and was sleeping in the tent. For reasons unexplained he kept a machete under his bed. The appellant came to the tent holding an object in his right hand.
The Crown case was that the appellant, who was outside the tent, spoke to Mr Tran, who was inside the tent, but that Mr Tran could not remember what was said. Mr Tran said he heard what sounded like a shot and the appellant ran off. The tent had a hole in it consistent with a projectile having passed through the tent.
Mr Tran was asked to draw a diagram indicating where he was and where the shooter was. He did so, and the diagram was entirely consistent with his account that he was shot at. His diagram was also consistent with the place where the projectile exited the tent.
Mr Tran was not hurt, but he took the machete from under his bed and ran into the house through the laundry door. He spoke to Ms Weatherill. He did not ring the police. After a period of time he prepared himself to return to the tent when he saw the appellant outside again. They had a conversation in Vietnamese, but again Mr Tran said he could not recall what was said. During that conversation he noticed that the appellant had the same object in his hand that he had earlier. While the men were facing each other Mr Tran heard what he said sounded like another shot and he felt blood on his forehead.
He immediately went inside and was attended to by Ms Weatherill. He was taken to hospital by ambulance. He asked Ms Weatherill whether or not to call police, but she called them in any event. She spoke with the police, and later that night Mr Tran also spoke to the police. At that time he did not give the appellant’s details and said that he was too scared to do so.
The next day forensic scientists examined the property where the shooting occurred. They examined the tent, and the area outside and inside the laundry. After Mr Tran identified the shooter as the appellant the police searched the appellant’s Canberra address where nothing of interest was found. The appellant visited the Belconnen Police Station stating a willingness to cooperate.
The police later obtained records of the appellant’s mobile telephone over a period commencing before 19 October 2009. Those records showed that most calls involving that phone were made from in and around Sydney except for two periods, the first being at the time of the shooting, and the second being at the time the appellant visited the Belconnen Police Station.
The Primary Judge’s Reasons
The trial judge said that the primary issue in the case was the credibility of Mr Tran. He reminded himself of the High Court’s dicta in Fox v Percy (2003) 214 CLR 118 that cautioned trial judges to limit their reliance on the appearance of witnesses, and to reason their conclusions on the basis of contemporary materials, objectively established facts and the apparent sequence of events.
The trial judge said that the assessment of the credibility of Mr Tran was not a straightforward exercise because he did not find him to be a genuinely impressive and convincing witness.
However, on the issue of who had shot at Mr Tran, the trial judge said he was convinced by Mr Tran’s evidence taken alone, although he also found that there was evidence that supported Mr Tran’s evidence in relation to the identity of the shooter.
It was put to the trial judge that he was bound to reject Mr Tran’s evidence because “the evidence of Thanh Tran was indivisible, that it could not be broken down into pieces, that there were instances where he could be seen to have lied, that there were other instances where what he said were [sic] implausible and that, given the number of instances of concern as to his credibility, Mr Tran must be treated as not being a credible witness.”
The trial judge identified some aspects of Mr Tran’s evidence which he found troubling. First, Mr Tran said that he was outside the house when the second shot was fired but that assertion was not supported by the evidence of other witnesses. Indeed, the trial judge found that Mr Tran was wrong, although he was not prepared to accept that Mr Tran was deliberately lying. Instead, he thought Mr Tran might have been confused. He ultimately found that Mr Tran was inside the laundry when the second shot was fired.
The trial judge was also troubled by Mr Tran’s evidence that he could not recall anything of what was said between him and the appellant, and he thought Mr Tran’s evidence as to why he had a machete under his bed was implausible. He also found that Mr Tran’s initial claim to the police that he did not know who it was who shot at him was an attempt to actively mislead the police.
In respect of that last mentioned matter, the trial judge found that Mr Tran’s possession and use of heroin may have been the reason for his failure to cooperate with the police.
As to the principal issue which needed to be decided, the identity of the shooter, the trial judge found support for Mr Tran’s claim that the shooter was the appellant. In that regard he said:
18.I looked for independent evidence which tended to provide additional support for the shooter having been Phuong Nguyen. I found several instances. No one instance was impressive seen alone. The instances were more like strands in a cable. There was the evidence of Rebecca Weatherill as to her close association over a long period of time with each of Thanh Tran and Phuong Nguyen. There was the evidence of Rebecca Weatherill that Thanh Tran had said to her on the night that Phuong had shot at him. There was the evidence of Gay Robertson as to the movements of the shooter in the backyard being that of a person familiar with the clutter. There was the evidence of what Rebecca Weatherill spoke of briefly in the “000 call” as to there having been a fallout between friends. In the intercepted telephone conversations, there were the fudging-type discussions about the shootings. Such vague discussions are routinely encountered in other cases in discussions about drugs. There was the evidence from the mobile phone records that Phuong Nguyen was in Canberra on 19 October 2009 at the critical time. He was not in Sydney as he had been for weeks before and after that critical time. I accept that such records need to be viewed with some caution. The location of the phone cannot always be treated as the location of the owner or the usual user of the phone. Given the evidence of Phuong Nguyen’s contact with each of Rebecca Weatherill and the Belconnen Police Station, and the absence of any evidence justifying any contrary rational inference, it is justifiable to draw the inference that the phone was with Phuong Nguyen.
For all those reasons the trial judge found that the shooter was the appellant and convicted him of the two counts.
It was put to the trial judge by the prosecution that there was another circumstance upon which he could rely for finding that the appellant was the shooter, and that was the fact that the appellant had attempted to board a flight to Vietnam on 11 December 2009. It was put that that was evidence of flight. The trial judge rejected that contention for two reasons: first, because it was difficult to determine what particular inference could be drawn against the appellant in relation to that event; and secondly, because the event occurred nearly two months after the shooting in circumstances where there was little police pressure, and, because the appellant had bought a return ticket, there was a reasonable inference consistent with innocence.
The trial judge’s conclusions were:
23.As to both shots fired, I am satisfied, that each was fired in the direction of Thanh Tran, and thus at him. I am so satisfied from a combination of evidence from several sources. The first is the evidence from the forensic witnesses, as to the location, nature and extent of the damage to the side of the tent, the laundry flywire and window and the laundry wall. As to the second bullet, I also had a reconstructed trajectory, albeit with qualifications. To that evidence I have added a close examination of the photographs, and, as to the first shot, the evidence of Thanh Tran and the diagram that he drew as to locations of items within the tent. I have no difficulty accepting that a first bullet was fired at Thanh Tran by the accused when Thanh Tran was located inside the tent, and that a second bullet was fired at Thanh Tran by the accused when Thanh Tran was located close to the laundry window. As to the matter of intent I find that there is no difficulty in inferring that Phuong Nguyen intended to shoot in the direction toward, thus at, Thanh Tran.
Consideration of Appeal
It would be as well to deal with the second ground of appeal first because it can be disposed of quite quickly.
What his Honour said at [18], which is set out above at [35], is entirely orthodox. His Honour considered the circumstantial evidence to determine whether it supported the hypothesis that the shooter was the appellant. In reaching a conclusion adverse to the appellant, he had to determine whether there was any other rational inference consistent with innocence. If he was of the opinion that there was any other such rational inference then he could not rely upon the circumstantial evidence for the conclusion that the shooter was the appellant.
He found that there was no other rational inference available, and so used the circumstantial evidence, as he was permitted to do, for the purpose of concluding that the shooter was the appellant.
A second matter that may also be disposed of quite quickly is the argument that Mr Tran’s evidence was indivisible, and that if the trial judge was not prepared to accept all of it he could accept none of it.
That is not a proposition known to law. Indeed, it is contrary to well-established principles that a trier of fact has to consider all of the evidence collectively and separately to determine the evidence which impacts upon the issues which are to be determined.
In doing so, the trier of fact may reject some evidence of a witness but accept other evidence from that same witness. There is no such proposition of indivisibility as was put by counsel for the appellant.
That leads to the question of whether or not the verdict is unsafe or unsatisfactory.
This was not an identification case. Mr Tran and the appellant had been known to each other for eight or nine years. Mr Tran would have had no difficulty in identifying the shooter, if the shooter was the appellant. This was a case about whether Mr Tran was telling the truth in saying that the shooter was the appellant.
If a verdict of guilty was to be entered on both counts the onus was on the prosecution to establish beyond reasonable doubt that the appellant shot at Mr Tran on two separate occasions.
Once the trial judge was satisfied that Mr Tran was telling the truth in relation to those two incidents, it followed that the trial judge must have been satisfied beyond reasonable doubt that the appellant was the shooter. There is nothing to indicate that the trial judge erred in accepting Mr Tran’s evidence in relation to the identity of the shooter. As we have said, he was entitled to accept parts of Mr Tran’s evidence and reject other parts of it. Moreover, this was not an identification case, because the appellant was well known to Mr Tran.
There was independent evidence that there were two projectiles fired. There was a hole in the tent and the window to the laundry was broken.
The remaining issue to be decided was whether the shooting was “at” Mr Tran. As we have already said, the diagram that was drawn by Mr Tran supported a finding that he was shot “at” in the tent. The projectile would have had to have passed very close to him to have exited where the hole was found in the tent.
It is not clear whether Mr Tran’s injury to his forehead was caused directly by the second projectile or indirectly by the second projectile breaking the glass, and the glass causing the injury. That cannot and does not need to be resolved because whichever was the cause of Mr Tran’s injury the shooting was “at” Mr Tran.
The verdict is neither unsafe nor unsatisfactory.
That leaves for consideration the further ground of appeal for which the appellant was given leave.
Section 68C of the Supreme Court Act 1933 (ACT) (“the Supreme Court Act”) provides:
68CVerdict of judge in criminal proceedings
(1)A judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury as to the guilt of the accused person and any such finding has, for all purposes, the same effect as a verdict of a jury.
(2)The judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied.
(3)In criminal proceedings tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict.
The appellant contends that his Honour’s reasons for decision did not comply with the requirements of s 68C of the Supreme Court Act.
Particular one of this ground allowed the appellant to argue that the incorporation into the trial judge’s reasons the directions given in R v Mulcahy by simply stating “I have read the moderately detailed directions set out by Nield AJ in R v Mulcahy … [and] I endorse and adopt them” did not satisfy the trial judge’s obligations to include in his reasons all relevant directions. No complaint was made of that matter in the appellant’s written submissions, but in oral argument the appellant contended that the trial judge fell into error in that regard and in failing to properly identify his reasoning process.
In Fleming v The Queen (1998) 197 CLR 250 (“Fleming v The Queen”), the High Court considered ss 32 and 33 of the Criminal Procedure Act 1986 (NSW) (“the Criminal Procedure Act”). Section 32 of the Criminal Procedure Act provided for trial by judge alone in criminal proceedings in accordance with an election made under s 32(1) of that Act. Section 33 of the Criminal Procedure Act empowered a judge who tried a criminal proceeding without a jury to make any finding that could have been made by a jury on the question of the guilt of the accused person, and any finding for that purpose had the same effect as the verdict of a jury.
Section 33 relevantly provided:
…
(2)A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3)If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter.
In dealing with s 33(2) and s 33(3) the High Court said at [28]-[33]:
28.Fifthly, whilst s 33(2), when specifying that which a “judgment” must include, does not use the expression “reasons for judgment”, it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.
29.Sixthly, the judgment may record what the judge regarded as a principle of law which then was applied, but the principle may have been erroneously formulated. There may have been a literal compliance with s 33(2), but by this means there is disclosed an error of law which, without there being a breach of s 33(2), attracts at least the second limb of s 6(1) of the Criminal Appeal Act.
30.Seventhly, if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle is not applied, rather than applied but not recorded.
31.Finally, there may be a breach of s 33(3) with respect to the requirement to take a warning into account. The present appeal is put as such a case. Section 33(3) is framed in a fashion which differs from that of s 33(2) and which emphasises the particular importance attached by the legislature to the requirements of the law with respect to warnings. Section 33(2) requires the inclusion of principles of law applied and of factual findings relied upon, whilst s 33(3) obliges the judge to take the particular warning into account.
32.The obligation imposed by s 33(3) “to take the warning into account” is not only to be discharged but also to be seen to be discharged. The means by which the obligation may be discharged is that indicated in s 33(2), namely the inclusion in the reasons for judgment of the particular requirement for a warning among the principles of law applied by the judge. The various requirements that warnings be given have been expressed as rules of law or practice. The failure to give such a warning does not always lead to the setting aside of a conviction. But that does not mean that it is not a principle of law within the terms of s 33(2). The judge is obliged by s 33(3) to take the warning into account and in doing so the judge applies a principle of law.
33.The result is to require the recording and heeding of a warning, if one is called for in the particular case, and the giving of effect to it in a real sense by stating reasons why, notwithstanding the warning or as a consequence of it, a particular verdict is reached. A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) that the warning be taken into account.
The appellant contended that his Honour’s reasons did not accord with the principles stated in Fleming v The Queen for the following reasons:
(a)His Honour failed to direct himself sufficiently in relation to the significance of the unreliability of the central witness;
(b)His Honour’s written reasons did not expose the reasoning process behind the findings that were made; and
(c)His Honour provided no reasons as to why his findings as to credibility as to who the shooter was could be transferred without further findings as to establish beyond reasonable doubt that the appellant shot “at” Mr Tran.
As we have said, the appellant did not contend in his written submissions on the appeal that his Honour erred by incorporating the directions given in R v Mulcahy and R v DM into his judgment without expressly stating those principles, although on the hearing of the appeal the appellant argued that the trial judge was in error to proceed in the way that he did.
We do not think it is appropriate for a trial judge to include the directions which he or she is to follow by reference to a series of directions given in another trial. Of course, in every trial there are directions which are common to other trials. Directions in relation to the burden of proof, the standard of proof, the presumption of innocence, and the necessary objectivity of the judge, will always have to be acted upon by a judge sitting alone in a criminal trial. Directions as to the use that a judge can make of a witness’ evidence will usually be required. When the accused gives evidence, a direction that the accused’s evidence is to be given the same weight as any other witness’ evidence should usually be given. A direction that the accused does not, by giving evidence, assume any burden of proving any fact or defence will ordinarily be called for. But there are other directions which will be peculiar to the trial which the trial judge is conducting.
To avoid any error it is preferable for the trial judge to indicate in his or her reasons the particular directions which the trial judge has given himself or herself.
In this case, the directions which the trial judge incorporated by reference to R v Mulcahy were the fundamental directions which are given in every trial, and the trial judge did not have to give any further direction peculiar to the trial which he was conducting. In those circumstances, we do not think that the incorporation of those directions by reference to R v Mulcahy was an appealable error, but we do think it would have been preferable if the trial judge had spelled out those directions in his own reasons. Of course, if there had been no reference to the directions which were incorporated, the reasons for judgment would not have complied with s 68C and would, by the omission, disclose appealable error: Fleming v The Queen; AK v Western Australia (2008) 232 CLR 438.
There is nothing in any of the other complaints in relation to the trial judge’s reasons. The trial judge had to consider the evidence that cast doubt on Mr Tran’s veracity, which he did. He identified the particular evidence, discussed it, and reasoned why he was able, notwithstanding those pieces of evidence, to accept Mr Tran as a witness who could be believed in relation to the issue of the shooter’s identity.
In the end, the trial judge had to decide whether or not he accepted Mr Tran as a witness who could be believed on that issue. He did, and said he did. This was the duty cast upon the trial judge. Unless he applied a wrong principle of law or misused the advantage he had of seeing and hearing the witnesses or did not consider all the evidence, there is little basis to challenge that finding. There is not much more that could be said. Once the trial judge had concluded that the matters of controversy in Mr Tran’s evidence were not such as to cause doubt as to Mr Tran’s truthfulness as to the identity of the shooter, the trial judge had to simply decide whether he thought Mr Tran was a witness of truth, which he did.
Conclusion
The appeal should be dismissed.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 22 May 2012
Counsel for the Appellant: Mr K Archer
Solicitor for the Appellant: Legal Aid ACT
Counsel for the Respondent: Mr J White
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 1 May 2012
Date of judgment: 22 May 2012
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