Nguyen v The Queen
[2002] WASCA 215
•25 JULY 2002
NGUYEN -v- THE QUEEN [2002] WASCA 215
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 215 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:167/2001 | 25 JULY 2002 | |
| Coram: | MURRAY J TEMPLEMAN J McKECHNIE J | 25/07/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction quashed Retrial ordered | ||
| B | |||
| PDF Version |
| Parties: | SANG TRUONG NGUYEN THE QUEEN |
Catchwords: | Criminal law and procedure Trial for doing grievous bodily harm with intent Admissibility of surveillance video showing accused in fight with another member of victim's group Turns on own facts |
Legislation: | Nil |
Case References: | O'Leary v The King (1947) 73 CLR 566 Harriman v The Queen (1989) 167 CLR 590 Macri v The Queen, unreported; CCA SCt of WA; Library No 940015 Martin v The Queen, unreported; CCA SCt of WA; Library No 940417 McCormack v The Queen [2000] WASCA 139 Mippy v The Queen, unreported; CCA SCt of WA; Library No 5019 R v Chikonga, unreported; CCA SCt of WA; Library No 950089 R v Cooper (1987) 30 A Crim R 19 R v Edwards (1993) 67 A Crim R 186 R v Preston (1992) 58 A Crim R 328 Thompson v The Queen (1993) 8 WAR 387 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : NGUYEN -v- THE QUEEN [2002] WASCA 215 CORAM : MURRAY J
- TEMPLEMAN J
McKECHNIE J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Trial for doing grievous bodily harm with intent - Admissibility of surveillance video showing accused in fight with another member of victim's group - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Conviction quashed
Retrial ordered
Category: B
Representation:
Counsel:
Applicant : Mr M R Gunning
Respondent : Mr J Mactaggart
Solicitors:
Applicant : Gunning Young
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
O'Leary v The King (1947) 73 CLR 566
Case(s) also cited:
Harriman v The Queen (1989) 167 CLR 590
Macri v The Queen, unreported; CCA SCt of WA; Library No 940015
Martin v The Queen, unreported; CCA SCt of WA; Library No 940417
McCormack v The Queen [2000] WASCA 139
Mippy v The Queen, unreported; CCA SCt of WA; Library No 5019
R v Chikonga, unreported; CCA SCt of WA; Library No 950089
R v Cooper (1987) 30 A Crim R 19
R v Edwards (1993) 67 A Crim R 186
R v Preston (1992) 58 A Crim R 328
Thompson v The Queen (1993) 8 WAR 387
(Page 3)
1 MURRAY J: The matter before the Court is an appeal as of right against the appellant's conviction in the District Court at Perth on 15 November 2001 of an offence that on 5 March 2000, with intent to do grievous bodily harm to one Maua Paul Aiesi, he unlawfully did grievous bodily harm to that person.
2 The sole ground of appeal is effectively that his Honour the trial Judge, L A Jackson DCJ, erred in admitting into evidence a surveillance video showing events after the alleged offence had been committed.
3 The circumstances may be sufficiently and shortly described for present purposes in the following way. The offence occurred in the early hours of the morning of 5 March 2000, which was a Sunday. The appellant had been at a nightclub in Roe Street, Perth. He was with friends. They left there, I think to obtain something to eat, but before doing so changed their minds and returned along the footpath on the northern side of Roe Street, towards the nightclub. As they did so they came into contact with another group of people walking in the opposite direction. In that group of people were the person Maua Aiesi and his brother David.
4 The appellant and David Aiesi came into accidental physical contact, no doubt influenced to some degree by their social activities earlier during the evening. Apparently they mutually reacted angrily and traded insults and offers to fight. They were not known to each other previously, these two, but, as has been seen, there was an incident which affected those two persons and caused a quite considerable reaction.
5 During the course of it the appellant and others ran across Roe Street to where, parked on the opposite side of the road, was the car in which they had previously travelled to the Northbridge area. The appellant may well have armed himself with an iron bar of some type. That indeed may have been taken from him when he left the car and again crossed Roe Street, evidently following up the brothers Aiesi and their group, who by that time had come to the intersection of Roe Street and Milligan Street and were walking north in Milligan Street.
6 It would seem that there was evidence that the appellant as he came to the intersection passed by an area where work had been done on the footpath or on the roadway at the intersection. In that area there were star pickets, one gathers used as a barrier of some kind. The appellant, according to the evidence, armed himself with a star picket, as indeed had at least David Aiesi and possibly others in his group.
(Page 4)
7 The appellant and David Aiesi again came into contact. It would appear the evidence would support a conclusion that they deliberately did so and they commenced a fight. That fight was not the subject of any charge before the court. Others became involved in a general fracas in the course of which there was evidence to establish that Maua Aiesi was himself struck with a star picket and sustained injuries which the jury might well conclude amounted to grievous bodily harm. The nature of the attack was no doubt such that whoever performed that attack upon Maua Aiesi might well be found by the jury to have been carrying out the attack with the intent to do some grievous bodily harm.
8 The Crown case was that the attacker was the appellant but the case was put to the jury that if they were not persuaded of that beyond reasonable doubt, they ought to conclude that the appellant was one of a group who formed an intention to assault Maua Aiesi in circumstances such that a probable consequence of carrying out that assault was that an assailant would form an intention to do grievous bodily harm and in fact sufficiently injure Maua Aiesi so as to constitute grievous bodily harm. The alternative case relied upon s 8 of the Criminal Code.
9 The appellant denied that he was the person who had struck Maua Aiesi with the star picket. His case was that he had been involved in the fight with David Aiesi and had thereafter take no further part in the incident, but had left.
10 After that incident it would appear that the appellant and others went back to the nightclub. David Aiesi, apparently observing the harm which had been caused to his brother, armed himself with a brick from the area where the works to which I have referred were being carried out and went back up the footpath of Roe Street towards the nightclub. He was stopped by security officers at that place and he either dropped the brick or was disarmed.
11 He returned to the intersection of Roe Street and Milligan Street and the place where, it would appear, his brother was still. On this occasion he armed himself with a star picket and for a second time went back to the nightclub. As he approached the nightclub it would appear that he was waylaid and set upon. What occurred then was depicted on the video surveillance film referred to in the ground of appeal. The film apparently shows clearly that on one or more occasions David Aiesi was struck by the appellant with a bottle he was carrying. The fight continued. David Aiesi struck the appellant and knocked him unconscious.
(Page 5)
12 The admission of the video surveillance film in evidence was objected to. His Honour gave a ruling during the course of trial. His Honour squarely bases his views about admissibility upon the decision of the High Court in O'Leary v The King (1947) 73 CLR 566. In that case the question was the appellant's guilt of a killing where a murder had occurred at a timber camp in the country. The appellant had been observed engaged in unprovoked attacks upon others who were present during a drunken party or gathering. One of those present during the course of that event was the deceased. The deceased had been killed by a blow to the head, but there was no direct evidence of the identity of the murderer. The evidence of what had occurred previously and of the appellant's behaviour at that time was admitted as being capable of establishing a setting in which the jury might properly consider whether there was evidence sufficient to establish that the appellant was the offender, the person who had attacked the deceased and brought about his death and that he had done so with the intention to kill him or do him serious harm.
13 The admissibility of the evidence was secured by its relevance to establish that the appellant in that case was the assailant, was the offender who killed the deceased, and the intention with which he did so. This seems to me to be a quite different case. His Honour said of this case, quoting from his Honour's reasons [2001] WADC 257 at [9], that:
"The attack shown on the surveillance video is not part of the same transaction as was the attack causing the injuries. However, it occurred within a very short space of time. It showed the nature of the relationship between the two groups of young men. It showed the accused was prepared to use a most violent and dangerous form of physical attack."
14 However, in my opinion the evidence provided by the surveillance video was inadmissible. It was probative of no question arising in respect of the operation of s 8 of the Criminal Code. Nor was it in my opinion probative of the question whether the appellant was the person who attacked Maua Aiesi in such a way as to cause him grievous bodily harm with the intent to do so.
15 The surveillance video showed a violent attack upon David Aiesi with whom the appellant had previously been in violent contact. In my opinion it showed nothing about the likelihood, or to assist the jury to conclude beyond reasonable doubt that the appellant was the person who
(Page 6)
- attacked Maua Aiesi so as to cause him grievous bodily harm, or that he did so with the intention to produce that result.
16 To my mind this case turns upon the question of admissibility and I do not find it necessary, on the basis that the evidence was admissible, to consider whether its probative value in relation to any issue at trial was substantially exceeded by its undoubtedly significant prejudicial effect. The conclusion to which I have come accords with the responsible way in which counsel for the respondent in this case has couched his submissions. In my opinion the appropriate orders are that this appeal should be allowed, the conviction quashed and a retrial ordered.
17 TEMPLEMAN J: I agree.
18 McKECHNIE J: The Crown this morning has conceded that the appeal must be allowed on the basis that the video evidence was inadmissible. The trial Judge ruled on that question and decided the case solely by reference to O'Leary v The King, he having concluded it was unnecessary to decide whether the evidence was res gestae or circumstantial.
19 In O'Leary v The King the majority held that the evidence was admissible because it disclosed a connected series of events which should be considered as one transaction. The trial Judge held at par 9 of his reasons:
"The attack shown on the surveillance video is not part of the same transaction as was the attack causing the injuries. However, it occurred within a very short space of time. It showed the nature of the relationship between the two groups of men. It showed the accused was prepared to use a most violent and dangerous form of physical attack."
20 It should be remembered that in O'Leary v The King the evidence was said to have been admitted on the basis of similar fact and the High Court rejected that basis for admission, although found it was admissible in another way. At 574 Latham CJ said:
"But in this case the crime is simply one of savage violence. It does not present the peculiar features pointing to a particular class of persons which were present in the cases of Thompson and Sims. It would be a dangerous extension of the rule as to evidence of similar acts to hold that the fact that a crime is savage and brutal is sufficient to justify the admission of
(Page 7)
- evidence that on other occasions an accused person has been guilty of savage and brutal acts. Thus I do not agree with the reasoning of the judgment of the Full Court."
21 In this case the trial Judge said in respect of the evidence at par 12:
"Even though there is a short gap in time between those events and the events captured on the surveillance video, in my view those events should be viewed in the same light. David Aiesi is pursuing his brother's assailants and he is set upon by them in a similarly violent manner as described as the general attack resulting in the grievous bodily harm. To fail to adduce evidence of the later attack would be artificial. It is part of the context in which all of the events occurred. It is part of the relationship between the two groups. It shows an attack of a similar character on the head of David Aiesi."
22 It seems to me, with respect, that the trial Judge is ambiguous in his comments. He finds that it is not part of the same transaction but seems to allow the admission of the evidence as part of the fact that it shows a violent attack and is of a same or similar character, matters which, as I say, were expressly rejected in O'Leary v The King.
23 The Crown has not sought today to advance an alternative view as to the admissibility of the evidence in relation to res gestae or circumstantial evidence. Having regard to the circumstances I consider the Crown's concession is proper and appropriate. I would also allow the appeal. I agree with the orders proposed by the presiding Judge.
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