Nguyen v The Queen

[1999] HCATrans 24

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M112 of 1997

B e t w e e n -

VAN NAM NGUYEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 12 FEBRUARY 1999, AT 10.33 AM

Copyright in the High Court of Australia

MR P.R. HAYES, QC:   If the Court pleases, I appear with my learned friend, MR O.P. HOLDENSON, QC, for the applicant.  (instructed by Melasecca Zayler)

MR J.D. McARDLE, QC:   May it please the Court, I appear with my learned friend, MR T. GYORFFY, for the respondent.  (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria))

GLEESON CJ:   Yes, Mr Hayes.

MR HAYES:   Your Honours, the judgment of the Court of Appeal, as principally delivered by Justice Kenny, contained a fundamental error that if not corrected would bring about a miscarriage of justice.  The fundamental error is this:  although her Honour stated correctly the test for the admissibility of fresh evidence and, in particular, at page 225 of the application book, line 8, that is, all of the other elements having been satisfied as far as her Honour was concerned, the question was whether there was this other evidence which raised a significant possibility that the jury might have returned a different verdict.

Her Honour then, over the page, at the top of page 226, said that this fresh:

evidence, if led, may have given a greater verisimilitude to the applicants’ defence.

Then her Honour goes on to say that, in the circumstances, in effect, the evidence was not such as to raise a significant possibility of the jury returning a different verdict.

The context of this was that although the case for the applicant, namely that there was consent of the alleged victims to the course of action taken, was put to the witnesses, there was no evidence to support the puttage.  The only evidence that, in fact, is now known to exist to support that puttage is the fresh evidence sought to be adduced.

GLEESON CJ:   But the summary of the nature of the fresh evidence at the bottom of 225, line 30, seems to suggest the reason for the conclusion that her Honour reached.

MR HAYES:   In the context, however, your Honour, where there was no evidence of the racketeering and prostitution on which the defence based its case.  There was no evidence.  The matters were put.  As it turned out, there was an ongoing investigation by the Australian Federal Police into this gentleman, Chau, who was subsequently charged with, and subsequently pleaded guilty to, a number of charges that could broadly be said to be racketeering, prostitution, illegal activities in relation to immigration, the very factors that the applicant was seeking to establish or at least cast a sufficient doubt about at the trial.

So, having concluded that this fresh evidence would give a greater verisimilitude to the defence, in our respectful submission, on principle, her Honour then ought to have found that the fresh evidence ought to be adduced. 

McHUGH J:   But, Mr Hayes, one problem, it seems to me about this case:  I am not even sure that the trial judge should even have allowed the jury to consider this so-called defence of these accused.  There was not a scintilla of evidence which supported it.

MR HAYES:   The point, of course, your Honour, is that the scintilla of evidence emerged after the event and was not notified, even though there was an advanced course of inquiry and, indeed, evidence had been gathered before the trial was concluded, my client was not given the opportunity to adduce that evidence.  So whatever might be said about the fact that bare assertion was put at trial, the fact is there was evidence of a similar fact kind of the very kind of racketeering and prostitution on which the defence was sought to be based.

McHUGH J:   I appreciate that, but how does the fresh evidence throw any light whatever on these women consenting to being kidnapped?

MR HAYES:   Because, your Honour, the fresh evidence showed a course of conduct by Chau in which he, in effect, had these women in what might these days be called a form of slavery:  holding their passport; holding their money; knowing the circumstances in which they were brought into Australia, illegally; their concerns about relatives and loved ones or themselves if they were returned to their native country, Thailand.  Indeed, your Honour Justice McHugh, those matters are set out at page 260 of my learned friend, Ms Lieder’s outline before this Court in paragraph 3.2, and there are 11 matters there that I have perhaps ineloquently summarised in shorter form.

The fresh evidence is capable of having persuaded the jury reasonably to find enough doubt to acquit because this man, Chau, was directly involved in the very kind of activities said to give him a hold on the two female complainants with a very similar course of conduct by bringing woman from Thailand, either bringing them into or helping them into prostitution and then holding the means of controlling them.

McHUGH J:   I appreciate that but, I mean, the defence case was just so incredible.  If these woman had consented, why was Toi without money, without a passport and clad only in her night attire.  They had gone back to the place, had they not?

MR HAYES:   Because, your Honour, the two female complainants were so in fear or under the control of Chau that they wanted it to look like an abduction so that they would not be in trouble from him of the kind that controlled them, namely, held their passports, held their money, held their means of liberty, held everything about them that they would hold dear.  So, the gravamen of the evidence that later emerged about racketeering, prostitution, illegal immigration, standover tactics – and one of the charges he was up on was a threat to murder, as well as fraud on the Commonwealth, prostitution and so on – that there was this course of dealing at about the time, in a very, very similar circumstance to what the defendant was seeking to assert.

McHUGH J:   I know they were seeking to assert, but the two women themselves expressly denied on oath that they were unhappy members of this operation or that they left of their own accord.

MR HAYES:   Absolutely, your Honour, in circumstances where, on the applicant’s case, they did so out of the same fear for Chau that had motivated them in the first place.  This is why this is so central to the issue of consent, that the exploitation and oppressive conduct by Chau is what has controlled the consent of these women, including the attitude to giving evidence at the trial.  Improbable as it might seem at first blush, when you look at what Chau was actually up to, at the same time and in very, very many circumstances, he was a man capable of doing the very thing that the applicant was asserting.  Now, the point is - her Honour calls it “greater verisimilitude”, a word which I find hard to say and a word which could have different meanings, but it is in the context that there was no evidence at all.  So, your Honour says, “Perhaps the trial judge ought to have taken a different course”, but there now is evidence available, that is the point; the only direct evidence that there has been of this fundamental and only line of defence which would have not only been relevant to attacking the credit of Chau, but to establish the central fact or, at least, a doubt as to the central fact as to whether there was the requisite consent.

Now, when you look at the extracts of the transcript of Chau’s evidence in the application book, your Honours will see he positively denies being involved in prostitution, positively denies being involved in the racketeering or the immigration scams or any of those matters.  He clearly would have been fundamentally demolished on that evidence, fundamentally, if these matters had been known. 

Now, the prosecutor, in our respectful submission, had a duty to bring this information to the attention of my client – those acting for him.  The prosecutor’s duty of disclosure has recently been considered by the Victorian Court of Appeal in Garofalo which is an additional case that we gave to the Court recently.  Of course, that was a case where a particularly important Crown witness had a very long history of prior convictions and where the court found, perhaps unexceptionally, that there was a duty in those circumstances to disclose.  But the court does go on in that to consider Lawless and other cases in which there has been consideration to whether that duty of disclosure extends not just to the knowledge of convictions but to knowledge of a course of inquiry.

GLEESON CJ:   Where is this point dealt with in the judgment of Justice Kenny?

MR HAYES:   It is not, your Honour, because Garofalo came in after the judgment of the Court of Appeal.

GLEESON CJ:   You mean, this is a point that was not argued in the court?

MR HAYES:   It was not argued before the Court of Appeal.  It was not.  But the decision on which this argument is based came in after the judgment of the Court of Appeal in this matter.

GLEESON CJ:   The principles on which the decision was based were known.

MR HAYES:   The principles on which the decision was based have been around for a long time but it was a startling and particular application of the principle and not one, your Honour, on which one can see that there would have been any change of course taken. 

GLEESON CJ:   If an argument had been taken before the Court of Appeal that there was a breach of the prosecutor’s duty, that might have necessitated the consideration of evidence, might it not?

MR HAYES:   Your Honour, there is a debate in the authorities as to how far that inquiry would be made when the fact is that it was established what the line of inquiry was and how far the investigation had got.  It was established that it was not disclosed.  It was established that this further information came in through the activities of the Australian Federal Police.  It was not asserted that this was something known directly by those involved in the prosecution of this matter, as it was not the case in Garofalo.  So, the linchpins on which this argument could be brought were matters that were before the court, in our respectful submission, and the question of preventing a miscarriage of justice is, obviously, a paramount matter.

Can I very briefly remind the Court of the chronology of this.  There were statements taken pursuant to the Federal Police inquiry that pre-dated the conviction.  The conviction of the applicant was on 31 October 1996. 

McHUGH J:   It was a two-day trial, was it?

MR HAYES:   Fourteen days, your Honour.  There were then newspaper reports which put my instructing solicitor on to the arrest of Chau and that was in March 1997.  The matter was argued before the Court of Appeal in June 1997, although the face of the judgment suggests it was September, but nothing turns on that, and the judgment was 28 November 1997, and then Chau pleaded guilty to a number of these charges on 13 August 1998, so the position being that there was an advanced course of inquiry by the Australian Federal Police that had uncovered substantial evidence, a lot of which came from authority such as the tax office, the immigration authority, not just evidence from prostitutes or persons whose credit would need to be examined.  The fact of the matter was there was a large body of evidence available and it is this body of evidence that those instructing me only found out about through the newspaper report after the trial and then promptly brought the matter to the attention of the Victorian Court of Appeal seeking to have the fresh evidence adduced.

GLEESON CJ:   I am looking at paragraph 2.7 of your written submissions on page 259 of the application book and also at the special leave questions referred to in paragraphs 1.1 and 1.2.  Now, I understand that you want to put an argument of the kind that was put in the Court of Appeal about fresh evidence but I do not see any argument there about breach of the duty of disclosure by the prosecuting authority.

MR HAYES:   That is correct.  There was a supplementary submission put in, your Honour, subsequent to the printing of this application book, a one‑page statement which I will seek to have found.  I do not know that it is dated but it says Applicant’s Supplementary Summary of Argument and, if I show your Honours, it is a one-page document and it referred the Court to Garofalo.  I am told it ought to be in the application book, although I do not see it in what I have.  But if I might, your Honour, just show your Honours what I mean.  We can get copies of it.

GLEESON CJ:   I cannot put my hand on it in the application book at the moment.

MR HAYES:   When the supplementary page was brought in the Registry it was physically inserted into the application book, as my instructor understands, your Honour.

GLEESON CJ:   I follow, yes, thank you.  I have it now.

MR HAYES:   It must be pointed out, as your Honour has already pointed out, this is not mentioned in the original summary of argument and it was not a matter that was put to the Court of Appeal.  I am accepting that.  But there are two points and they are connected.  The first is that in circumstances where the only direct evidence going to a material issue, in this case the central issue of consent, but for whatever reasons was not known to and available to the applicant at the time of the trial, in circumstances where all there was previously was bare assertion, in our respectful submission, is a fundamental matter that could have persuaded a jury acting reasonably to entertain a reasonable doubt on the central issue.

Further, there was in the circumstances a duty on the Crown to present this material.  The cases on the test for the admissibility of further evidence could do with an authoritative statements because the various cases that we have referred to in our outline express it variously.  Garofalo:  Justice Ormiston talked about “the evidence may have been enough to raise a reasonable doubt”; in Gallagher:  “a significant possibility that the jury, acting reasonably”; in Craig:  “removes the certainty of guilt; in Ratten:  “a reasonable prospect that a new jury might reasonably come to a different conclusion”, and in circumstances where – this is a unique situation on the authorities where previously there was puttage only and no evidence.  Now there is evidence as to a matter, not just material, but the fundamental matter of defence and directly attacking the credit of a fundamental witness to the trial, Mr Chau, whose conduct was the subject of the direct case of the - - -

GLEESON CJ:   You say there was a substantial issue as to the credit of Mr Chau.

MR HAYES:   Yes.

GLEESON CJ:   What did he say his occupation was?

MR HAYES:   I am told by my instructor – I was not involved in the trial ‑ and there might be something in the application book that I have not seen, your Honour, but unemployed.  There are direct denials by Chau that he was involved in prostitution; that this was a racket; that there was anything to do with immigration; that he held their passports for any particular reason; that he dealt with their money in a particular way, a number of the matters on which this, what you might call, “similar fact” evidence were

directly denied by Chau and he would have been slaughtered in the hands of any cross-examiner on those allegations.  That is enough, surely, we would submit, to have cast a reasonable doubt in the minds of a jury, acting reasonably.  That is all we have to show for this purpose.

Your Honours, I see I am just about through the intersection with the orange light.  But my learned friend has foreshadowed they want to put in other material showing that the evidence given in the witness statements of the witnesses who gave evidence in respect of Chau, backs somewhat from their statements in cross‑examination.  There would be an issue if that was to be determined as to what, in fact, the transcript shows, but we would submit that this Court does not have the original jurisdiction necessary to be able to receive that further evidence.

Mickelberg, which is one of the cases that we have cited, would be direct authority of that proposition, particularly in the judgment of Justice Brennan, as he then was, at page 274 of the report:

This Court has uniformly refused to receive fresh evidence in the exercise of its appellate jurisdiction in criminal cases. 

And his Honour cites what appears to be the subject of a number of statements referred to in that case.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Hayes.  Yes, Mr McArdle.

MR McARDLE:   Your Honours, might we commence by saying that this case is not about a failure to disclose or otherwise, so far as the prosecution is concerned.  Those issues were never raised before the Court of Appeal.  They were never investigated by the Court of Appeal.  The reference to the relatively recent authority of Garofalo is, we say, an afterthought indicated by the fact that it comes in a document dated 28 January this year which has been added to the application book.

The investigation that led to Chau or, I think, his correct name is Le, being prosecuted was a federal investigation done by Australian Federal Police.  It involved an investigation of taxation offences, offences in relation to unemployment benefits, as well, apparently, as some State offences involving offences under the Prostitution Control legislation and the Crimes Act.  So, at no stage did the Court of Appeal concern itself or was invited to concern itself with questions of disclosure.  If criticism, or if it is said that there is a miscarriage of justice as a result of that, it is a matter that would have to be properly investigated, it is submitted, in a different tribunal.

Now, so far as the conduct of the case was concerned, the case was, nowadays, not unusual in so far as neither accused gave evidence.  That is not unusual.  But at the end of the day, it is submitted, it was remarkable because there was, in fact, no evidence to support their defence, except for the evidence of one witness who was called, a motor car engineer who appears to have really played no part in these proceedings except to give some evidence to suggest that the evidence of one of the ladies kidnapped might not be accurate when she said she could get her hand outside the boot of the car where she was detained.

At the end of the day, this applicant did not give evidence.  His record of interview would have it, it appears, that he was with a girlfriend at the relevant time at an entirely different address.  So, the defence that was run was an attack on the credit of Chau and on the girls involved so as to suggest that in fact they were telling lies and that Chau had some grip over them that meant that they had to engage in some sort of subterfuge to be rescued.

Now, the evidence is really quite inconsistent with that, involving one of the girls coming back in her nightdress; no money – and there was money at the premises – and the other woman being found over in Sunshine, the other side of Melbourne completely.

GLEESON CJ:   It does not sound like much of a rescue operation.

MR McARDLE:   She was rescued by the police over in Sunshine; one of them found over there.  This applicant and I think his co-accused – certainly another man – came back to the house and one might surmise that to their surprise the police were waiting because the police investigations had carried on through most of the day, this incident having occurred at about 4 in the morning and the woman and the others turned up, I think, later that night.  The victim, apparently, I am reminded, ran into the arms of the policeman.

Now, her Honour, at page 225, records the fact, about halfway down that page:

At the trial there was evidence enough to show that Chau made his living from a prostitution racket and that the racket involved (1) the transportation of women from Thailand to Australia; (2) the perpetration of frauds on the Australian immigration authorities…..(4) Chau’s demanding and receiving the earnings of the women’s proposition; and (5) the operation of the racket in a relatively large network of brothels throughout Melbourne. 

That is the end of that particular area that I wanted to quote.  Her Honour makes the observations at the conclusion of the case the trial judge directed that certain papers be sent, in relation to this case, to various authorities.

So, at the appeal it was contended that in fact this material, that which was described as the fresh evidence, was related to collateral matters.  They were credit matters.  We continue that contention.  The judgment of the Court of Appeal conceded that, in large, as presently presented, a lot of its was hearsay but was not prepared to hold that it was purely credit matters.  In essence, it is really further material along the lines of that which appears to have been common ground in relation to Chau’s unseemly background.  That being the situation, the fresh evidence did not add very much to that which had been thoroughly explored and, in any event, did not erode the uncontested evidence of Chau and of the two women who had been kidnapped. 

Now, the judgment of her Honour, with which the other members concurred, approached, it is submitted, the task of a court in these circumstances with the authorities correctly in mind, with the proper principles.  No issue has been made in relation to that.  The only issue that has been put is that a mistake was made because it was said that this would not create a significant possibility that the jury would have returned a different verdict.

The exercise conducted by the Court of Appeal would have involved an examination of all the evidence of the case.  The authorities require that, it is submitted, and in any event they would have had to embark upon that because the other ground of appeal was not - - -

GLEESON CJ:   The verdict was unsafe or unsatisfactory.

MR McARDLE:   Exactly, which, in turn, requires a close examination of all the evidence.  It is submitted that there is no reason to believe that this, which is described as “fresh evidence” which we contend, essentially, being credit matters that have been raked over, in any event, would have established a significant possibility that the jury in these circumstances would have returned a different verdict.

Her Honour identifies, at page 226, the Crown case as being a very strong one.  It was.  For all intents and purposes there was no answer to it and very little by way of concession so far as the two victims were concerned.  As well, there was other material to which, I think, reference is made in our outline concerning the circumstances which would provide some support, for example, the distress of the two women when located; the contact made between the applicant or his co-accused and Chau beforehand

wanting some share of the action, some share of the business, and those things.

Now, it was said in the course of our learned friend’s argument that there was no evidence or no concession by Chau that he was involved in prostitution.  That appears not to be the situation.  An examination, for example, at page 27 at the application book, at line 7, referring to Toi:

You were still taking her off to parlours, weren’t you?---Yes.

You were still receiving money from her, weren’t you?---Yes.

She would give you money for – you say that she gave you money to mind, right?---Yes.

And she also paid you $80 a week?

Et cetera.  He later, at the bottom of the next page, at 28, declines to answer a question put directly to him about the girls working illegally, that is to say, in a non-licensed brothel at his house.  In any event he denies, for example, keeping power over them by holding on to a passport.  Putting that to one side, it is clear from her Honour’s analysis of the evidence that there was substantial material before the court in relation to his background.

GLEESON CJ:   Yes, we have that point.

MR McARDLE:   In relation to the evidence of - the proposed fresh evidence, with the exception of a woman called Kingi, they occupied separate premises.  The two women involved as victims in the kidnapping were not those who made statements in the Federal Police investigation.  Those in the Federal Police investigation appear to be in separate premises and there appears to be, to an extent, there is an overlapping of time.  On the other hand, there are occasions on which there is no overlapping of time at all.  That material, we contend, would be at best very weak and, in any event, not one that would raise a significant possibility that the jury would have returned a different verdict, and the Court of Appeal was, we submit, correct in its assessment of the evidence.  If the Court pleases.

GLEESON CJ:   Thank you.  Yes, Mr Hayes.

MR HAYES:   At page 28 of the application book that my learned friend referred to, at line 2 Chau was asked:

You have been harbouring illegal immigrants, haven’t you, Mr Chau?---Rubbish.

He makes a series of denials and when he is asked, at line 28, if he has been living off the earnings of prostitutes, he declined to answer the question. 

There are a great many other passages in the extracts of the judgment in which Chau denied matters that he has ultimately pleaded guilty to doing in respect of other women, to do with passports, money and the indicia of what is called these days “sexual slavery”.  The finding at page 225 that this man was involved in prostitution is something that the trial judge has referred to but on which there was no evidence, just a lot of smoke, based on the puttage of the counsel for the defendants.  What there now was, was evidence of living off the earning of prostitution, racketeering, immigration scams, standover tactics; far, far different to the kind of matters that were limply able to be put by way of assertion only and therefore, we would respectfully submit, this is a matter that could well have led to a different result by a jury acting reasonably.  If the Court pleases.

GLEESON CJ:   This case turned, in the Court of Appeal, on the application of well-established principles of law to the facts of the particular case.  The Court is of the view that the case gives rise to no issue of the kind that would warrant the grant of special leave and that it has not been shown that the interests of justice require that special leave be granted.  The application is dismissed.

AT 11.08 AM THE MATTER WAS CONCLUDED