Nguyen v The Queen
[2013] HCATrans 127
[2013] HCATrans 127
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M30 of 2013
B e t w e e n -
DANG KHOA NGUYEN
Appellant
and
THE QUEEN
Respondent
FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 5 JUNE 2013, AT 10.02 AM
Copyright in the High Court of Australia
MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR C.B. BOYCE, for the appellant. (instructed by Victoria Legal Aid)
MR T. GYORFFY, SC: May it please the Court, I appear with my learned friend, MS D.I. PIEKUSIS, for the respondent. (instructed by Director of Public Prosecutions (Vic))
FRENCH CJ: Yes. Mr Gyorffy, as you have probably been advised, we would like to hear first on the question raised on the summons of the extension of time of the notice of contention and the question whether leave should be granted to argue that Gilbert was wrongly decided.
MR GYORFFY: Yes, your Honour. Your Honour, we rely on the affidavit of Ms Aridas, filed on 9 May 2013. Essentially, the reason why the notice was filed late was that there was an unfortunate choice of juniors, three of whom had to return the brief before we could work on the matter. It was an extensive and complex brief which required consideration of whether this issue of Gilbert truly arose in the factual context that was there, and it took us until Friday, 3 May to get on top of the materials and come to the conclusion that we should seek to file a notice of contention.
We attempted to do so on the fifth, so we are about 15 days out of time in relation to that, and we would submit, as set out in 1.2 of our outline of oral propositions that there has been no prejudice caused to the appellant who has had the opportunity to respond fully to the notice of contention in written submissions. We submit that the notice itself raises a matter of substantial public importance in the sense that the true principal issue here is one that would apply across Australia, and it is the answer to the question what may be taken into account in determining whether or not in a particular case there has been a substantial miscarriage of justice. The principle in Gilbert is contrary to the law in every other offence on the criminal calendar, and we would argue it is an anomaly ‑ ‑ ‑
KIEFEL J: Here the respondent, as the appellant points out at paragraph 17 of the outline, made no similar contention in the other matter of Nguyen reported at 242 CLR 491.
MR GYORFFY: That is so, your Honour, because we saw that as a very different factual situation at the time. We have set out in our submissions on the appeal why the factual situation here was vastly different to that.
KIEFEL J: That raises questions of equality of treatment and potential inconsistences, does it not?
MR GYORFFY: Not if we are right, your Honour, on the contention that they are different cases. They were two different cases being heard; they were determined on different facts. The facts of this case are such that it is vastly different to the previous case. The previous case, there was no connection between the appellant and the drug transaction. There was no connection with him giving directions to the person who is ultimately convicted of murder, the principal. This case has those factors, and what struck us about it was that, as your Honour knows from the leave application, we were fighting it principally on the factual issue, but when we analysed the factual issue we could not entirely exclude the possibility that your Honours would find that there is a basis for leaving the concert.
We had no such reservations in relation to the previous case where the man, on all the evidence that is set out in paragraph 29 of the judgment, had no connection to the debt, had no knowledge of the premises, knew no one in the premises. His case was one that was based purely and simply on his presence and what happened after his presence. This case is based on agreement. So, those are the reasons and it may be that I have made a mistake in terms of this, but they are the reasons we were cautious. We did not want to waste this Court’s time by a frivolous notice of contention and we, having done the work on it, considered it was appropriate to do so.
FRENCH CJ: It is the Gilbert point really, and the Gilbert point only, that is raised in the notice of contention?
MR GYORFFY: It is. Pemble really only comes in tangentially in that it is mentioned in one of the majority verdicts in Gilbert and we will, in our submission, respond to what has been put by the appellant on Pemble. Our position is that Pemble does not stand in the way of Gilbert being overturned because the principle in Pemble was stated as being, if there is a substantial miscarriage of justice then, in effect, you cannot estop the defendant from running the case on the basis solely that there has been a judgment – solely on the basis of the actions of counsel. That begs the question which Alford v Magee raises, whether or not in determining whether there has been that substantial miscarriage of justice, the manner in which the case was run can be taken into account.
FRENCH CJ: Do you accept that Gilbert has been repeatedly applied?
MR GYORFFY: Yes, I do. It has been applied many times in courts of intermediate – or intermediate appellate courts. We will be relying on the judgment of Justice of Appeal Nettle in Saad, which we have referred to in our submissions, and we will submit that while it has been applied, it has been questioned and it has been applied grudgingly, if I can put it that way, because it raises the concern that it is based on a premise which was fundamentally contradictory to the way that jury trials are run in this country, the point that Justice Hayne made in his dissent in Gilbert.
When we expand on the argument, we will say that as a matter of policy that that is vital because that policy does not just underpin looking at whether there is a substantial miscarriage of justice where a defence was not left or an alternative is not put. Just about every exercise of discretion, for example, an abuse of process, the allowing of evidence which could be misused, deciding to continue with the jury rather than discharge it, every one of those exercises of discretion is underpinned by belief in the judge that the matter that is before him or her can be dealt with by a direction which will be acted on by the jury. The principle in Gilbert is counter to that, and it is counter to that in respect of only one offence, murder, and in respect of only one alternative offence, manslaughter.
BELL J: Even if there is force to what you say in those respects, if one comes back to the matter that Justice Kiefel raised with you, you may have been putting it somewhat high to suggest that there was a very great difference in the factual basis of the cases against this appellant and the appellant in the previous matter. It really comes down to this, does it not? The person Chau Nguyen, who was shot, gave evidence that this appellant had, as it were, given directions to Mr Ho. No other person in that crowded room gave evidence of that, and were the jury to entertain a doubt in that respect it is rather hard to draw a great deal in the way of distinction between the two Nguyen brothers.
MR GYORFFY: No, your Honour, we would say there still is, and what it comes from is the evidence of the man, Mau, who owed the drug debt. Mau gave evidence that the first transaction that was delivered was delivered on the direction of the appellant here to the flat in Lygon Street.
BELL J: I am mindful of that but, nonetheless, when one looks at events as they unfolded in the premises, there was a basis upon which the case that was left against the appellant in the earlier case might be found to have been a party to an understanding respecting arriving at the premises to collect a debt. That was ‑ ‑ ‑
MR GYORFFY: We would submit you cannot take that out of it, your Honour, because what you have got is evidence that Khoa is a person who is approached initially to, in fact, be a supplier of drugs. He gives directions on the evidence that Ho is to be the person that delivers the drugs. All the contacts are made to Khoa, including the very transaction that is concerned. Khoa knows the significance of going to the flat in Lygon Street. That is where the drugs were delivered the first time. That is where they believed they would find Mau.
So those factors just cannot be left out of it, in terms of the significance, and they are very, very significant because as we submit in our outline, this was an all or nothing case. If we look at the proposition that your Honour puts to me, and we just peel back layer by layer the facts to arrive at a basis on which a defence could be mounted for Khoa, there is no basis, in our submission, that would amount to an agreement because you take that fact away, you are still left with his knowledge of matters, the directions that he has been giving up until then, his presence in the flat, not showing any response when the gun is produced and the gun is shown to the other people in the flat, and the ‑ ‑ ‑
BELL J: The lack of response at the time of the production of the gun was a circumstance equally available in the prosecution case against the brother.
MR GYORFFY: Yes.
BELL J: The brother was armed with a weapon variously described, but perhaps it is sufficient to refer to it as a samurai sword, which he was brandishing and with which he had inflicted a minor injury on one of the seven occupants of the room.
MR GYORFFY: That is significant, your Honour.
BELL J: One is looking at this point in terms of the approach that the prosecution takes to the two cases at the complicity of each of the Nguyen brothers for the acts of Mr Ho in the flat as they unfolded. The matter that I am raising with you is there might be thought to be rather less of a distinction to be drawn factually between the two, and that would bear significantly, would it not, on whether this was an appropriate vehicle to consider your challenge to Gilbert.
MR GYORFFY: If there is no significant difference between them, then it would be unfair. I agree with that. Our contention is that there is, though.
HAYNE J: The base proposition is that in paragraph 13 of the first Nguyen Case, is it not, that it was the prosecution’s case at trial that the three men had gone to the flat to collect the debt?
MR GYORFFY: Yes.
HAYNE J: No doubt, there being three participants, each did different things in the flat. Each may/may not have had different understandings that the basic case was there was one shooter. There were three men who went. One of the persons who was not a shooter was the subject of the first case. The other non‑shooter is the subject of this case.
MR GYORFFY: Yes, all of that is correct and it still is only part of the story. The other part of the story is how the cases were run by the defence in relation to these matters and the defence raised the fact that there was no agreement, and particularly in relation to Quang who had the samurai sword. He knew nothing about the flat. He knew nothing about the gun. He knew nothing about the drug debt. He went along, and what we submit is that that opens up a possibility that we submit is not open in relation to Khoa because Khoa is a party to the drug debt. Khoa knows the significance of the flat. He knows why they are going there and that represents a significant defence ‑ ‑ ‑
HAYNE J: What are we to make of the fact that the prosecution accepted a plea to manslaughter in respect of the subject of the first proceedings in this Court?
MR GYORFFY: Nothing, your Honour, nothing in terms of relevance to this case. The reason why that was done were policy reasons taken by the Director, having regard to the length of time that has elapsed, having regard to the health and mental condition of Mr Nguyen and various other issues. That was a decision in the exercise of the Director’s discretion and it was not taken on the basis that it was considered that there would be no chance because this Court said there still was a chance in a retrial but that was a prosecutorial discretion and it showed compassion towards a man who has got some very unfortunate circumstances. We went so far as to make a concession that he should not serve any further time than he had already served, given all of those circumstances. So unless there is anything else, those are the matters that I put.
FRENCH CJ: Thank you, Mr Gyorffy. The Court will adjourn briefly to consider what course it should take.
AT 10.18 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.22 AM:
FRENCH CJ: The Court is not persuaded to grant leave to argue that Gilbert should be reconsidered. It follows that the application for extension of time to file the notice of contention is refused. The Court will adjourn briefly to reconstitute.
AT 10.23 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.27 AM:
FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
FRENCH CJ: Yes, Mr Holdenson.
MR HOLDENSON: The appellant was convicted on two counts. In chronological order, the second count was the attempted murder of Chau and the second offence was that which was the subject of the first count on the presentment, the murder of Mr Luu. The Crown case was that the actual perpetrator or, should I say, the principal offender of those two offences was Bill Ho, who was the second‑named accused at trial. Indeed, that was common ground and, in fact, Bill Ho gave sworn evidence in his defence to the effect that he had fired each of the two shots, the subject of the two shootings the subject of the two counts. He was, of course, convicted on both those counts.
The Crown case against the two co‑accused, namely the first‑named accused at trial, the present appellant, and the third co‑accused at trial, Quang, was that each was guilty on both counts on the basis of complicity in respect of which there were three alternatives. There was first, acting in concert; secondly, common purpose or extended common purpose; and thirdly, aiding and abetting.
The learned trial judge directed the jury with respect to that alternative verdict which might be returned by the jury on the count of murder, that is, manslaughter by unlawful and dangerous act, albeit perhaps more precisely the learned trial judge directed the jury with respect to the bases upon which the jury might return a verdict of guilty for this appellant and Quang for the offence of manslaughter in the two circumstances where Bill Ho was convicted of murder and where the alternative, where Bill Ho was convicted of manslaughter, and again, on those three bases, acting in concert, common purpose and aiding and abetting.
As your Honours will recall from the materials, those directions were written and the relevant portions of those directions are set out in this Court’s joint judgment back in 2010 in the case of Quang and they are set out with some emphasis with respect to the impugned passages at paragraph 42 on page 502. Both the court below and this Court held that those directions with respect to the bases upon which this appellant might be convicted of the alternative offence of manslaughter, should Ho be acquitted of murder, were erroneous. That is explained in this Court’s joint judgment in the next two paragraphs, paragraphs 43 and 44 on the next page at page 503 of the report. Moreover, this Court in that case of the co‑accused Quang held that there was a viable evidentiary foundation for Quang being liable for the offence of manslaughter by way of complicity.
That is set out in paragraphs 45 and 46 in that joint judgment on pages 503 to 504. Within paragraph 45 is where Quang’s counsel formulated the bases upon which Quang might be held liable for that alternative offence of manslaughter should Ho be acquitted of murder or whether he be convicted of murder, the three alternatives are there. If I could just take your Honours, by reason of the discussion earlier today, to a passage within paragraph 45 with respect to the first of those alternatives, the basis of extended common purpose. It is in about the seventh line of paragraph 45 and reads:
As to extended common purpose, it was said that if the jury were satisfied that [Quang] knew of the presence of the gun before the shootings occurred, and was party to a plan that violence would be threatened to recover a drug debt, it was possible that the purpose was to do no more than cause serious harm to another short of really serious injury.
Those submissions, with respect to the three alternative bases, were accepted by this Court in the next paragraph, paragraph 46, with the consequence, with respect to the conviction for murder, this Court concluded in paragraph 50 on page 505 that there had been, and this is by reference to the two decisions of Gilbert and Gillard, within a paragraph that it was an error for her Honour therefore not to have left manslaughter as an available verdict for Quang and as a consequence there had been a substantial miscarriage of justice and hence a retrial.
The submission on behalf of the appellant, this appellant, is that that analysis, with respect to Quang is equally applicable to the case of this appellant. Although the evidence as to the conduct of the appellant in the flat differed a little from the evidence of the conduct of Quang in the flat, that difference, at the end of the day, is not material to the analysis and does not alter the analysis.
In other words, what this appellant says by way of submission is that the difference in the evidence does not alter the content of paragraphs 45 and 46. Just so that there is no doubt about it, I respect the submissions made by, I think, Mr Croucher, and would ask this Court to adopt those submissions, just as it adopted Mr Croucher’s submissions accepting them as correct – that is, in paragraph 46 – and ask the Court to reach that conclusion that it reached in the case of Quang, as set out in paragraph 50.
With respect to the differences in the evidence, your Honours will see in our outline of oral submissions, which were provided to the Court earlier today, we have set out in paragraph 8 that which would constitute the foundation of the difference in the evidence. In paragraph 8.1 we make reference to the fact that it was Quang who was the one moving around the flat waving, as it was said – we might say “brandishing” – the sword and he cut one or two occupants. It was said below that he was thereby enforcing the demands made by Ho with respect to the whereabouts or the location of Mau.
What is more, albeit I know our friend draws attention to the evidence given by Chau concerning how it was that this appellant was sitting on the stereo and used the words either “Get him off” or “Fuck him off” when Bill Ho nodded “this one”, and then in reply, as I have set out in the outline there, it was said by Chau that the appellant nodded his head. I have drawn attention to the evidence within the appeal book in that regard in paragraph 8.2. That evidence was disputed. His evidence was challenged and not surprisingly so. Of course, Chau only woke up to be confronted with this and it took him some time before he remembered it all and his evidence was that he remembered it in a dream.
What is more, not one of the other five occupants gave similar evidence – not one of the five. In fact, Bill Ho gave sworn evidence to the contrary. He said, and I have set it out in paragraph 8.4, where I have also identified the pages in the appeal book, that the appellant was not sitting on the stereo. He was instead at the other end of the room near the doorway, and he also said that the appellant said nothing prior to Bill Ho shooting Chau.
That evidence was consistent with the evidence of Kathleen, one of the witnesses there. Kathleen Quach gave similar evidence as to where it was that this appellant had been standing – namely, near the doorway, albeit, I should assist the Court and indicate that one of the other witnesses did reject that which was put to him concerning the whereabouts of the appellant, but that witness gave no evidence concerning “Get him off”, “Fuck him off”, nodding of the head and so on.
In any event, the Crown, in our submission, as we have set out in paragraph 8.5 could never exclude the possibility that the words were uttered without the requisite intention to render the appellant guilty of the offence of murder by way of complicity. But there is one other aspect to it. That conduct, in any event, took place before the shooting of Chau which was in turn before Ho shot the deceased man, Luu. So as we have said in paragraph 8.6, those words, if uttered prior to Ho shooting Chau, did not preclude a finding of guilt of manslaughter with respect to the subsequent, almost immediate, shooting of Luu.
Another way of expressing that, perhaps not as eloquently, is that the words if they were uttered did not necessarily flow through to what occurred after the shooting of Chau, namely the shooting and the killing of Luu. In that regard, of course, as we have set out in a slightly different context in paragraph 11, the shooting of Luu occurred a very short time indeed after the shooting of Chau. I have identified within the middle of paragraph 11, which is in a different context, that there was evidence that the shots were only seconds apart. I have identified the pages there. That was the evidence of Tien Pham.
Another witness at page 224 of appeal book volume 1, Viet Tran, said it was “very quick”. There was evidence given by Kathleen Quach at page 293 of volume 1 of the appeal book that the period which elapsed between the two shots was 10 or 15 seconds and in a passage which is not identified there, there was the evidence of the neighbour, that is the person who lived in the next flat, indeed, in the very next flat, David Chan. He gave evidence in volume 1 of the appeal book at page 362 at lines 10 to 11 that the period of time which elapsed between the two shots was 10 or 15 seconds. Of course, as I have identified within that paragraph 11, after the first shot of Chau, there was no warning given before the second shot and that is at page 304 and that was also the evidence given by Bill Ho.
Now, just because Bill Ho whose counsel went to the jury asking that his client, Bill Ho, be convicted of manslaughter – that was his defence, he was guilty of manslaughter – the rejection of that contention by his counsel, by the jury as they must have done because they convicted Bill Ho of murder, does not necessarily negate or set at naught the other evidence given by Bill Ho. That is, the evidence which I have set out in summary form in paragraph 8.4 of those oral submissions, and again referrable to the last line of paragraph 11 which is again sourced to the sworn evidence given by Bill Ho.
With respect to knowledge or awareness of drug debts, there are several references to the knowledge of Quang in this Court’s joint judgment back in 2010. There is first the passage in paragraph 13 which is referable to the prosecution case, paragraph 13 on page 495. There is also a passage at paragraph 25 which is at the head of page 498. Paragraph 25 is, of course, in this Court’s consideration of whether or not the Crown were to succeed in this Court setting aside Quang’s acquittal for murder. Paragraph 25, and I quote just from the start of it:
On the whole of the evidence, it was open to the jury to be satisfied, beyond reasonable doubt, that all three men –
including Quang, that appellant in 2010 –
had come to the flat searching for Mau Duong for payment of a debt. In particular, the jury could be satisfied that Dang Quang Nguyen knew that they went to the flat searching for Mau Duong for payment of a debt, and that, either before or after arriving at the flat, Dang Quang Nguyen armed himself with a sword with which he sought to enforce the demands for information that all three were making.
It goes on. Then again in paragraph 45 in the passage to which I drew the Court’s attention a little earlier within the contentions made by Mr Croucher in the case of Quang as to there being a viable evidentiary foundation for manslaughter which had within it an awareness by his client, Quang, of the existence of the drug debt and the attendance at the flat in order to recover the drug debt and to make threats in that regard.
So what we say is that in those circumstances, just as in the case of Quang, there was an evidentiary foundation for guilt of manslaughter by unlawful and dangerous act by reference to the three limbs of complicity. Now, it is just not something that was dreamt up by me all those years ago when I appeared for this appellant in the court below because this was the way the trial was conducted. Prior to the final addresses to the jury, there was some discussion between the learned trial judge and counsel as to whether the offence of manslaughter was open on the evidence.
The prosecutor accepted that the offence was open where, for both Quang and this appellant, Ho was guilty of murder. Can I take your Honours to the passages? If I could take your Honours first in volume 2 of the appeal book at page 656 – the numbers are at the very head of the page in block and bold letters. At 656, volume 2, if I could be excused for reading most of the page, her Honour says at the head of the page:
HER HONOUR: What I would propose to say to the jury in each case is that unless they were satisfied that Mr Ho was guilty, that he had the relevant intent, that they could not find the other men guilty. Interesting propositions arise as to whether you are going to put manslaughter –
just pausing there, this was after the evidence had been given, after the cases had been closed before the final addresses –
in terms of the other two or – I’m sorry, we have not even got to manslaughter – I assumed it was on your list. It is on –
Mr Rochford was for Quang, Mr Stuart was for Ho. Mr Stuart said –
MR STUART: It is indeed.
HER HONOUR: I would have thought that manslaughter was quite clearly open on the evidence and that you would want it put.
MR STUART: Yes.
HER HONOUR: I assumed you would want it put, and back to you, Mr Pirrie –
the prosecutor –
MR PIRRIE: I would not oppose that –
that is presumably referable to the second named accused, Bill Ho. Her Honour says at line 18 –
HER HONOUR: You would not oppose that because one of the major issues is the intent with which this was done. If that is the case, do we then get into the area of manslaughter being a possible verdict in terms of – I think we have to – of Mr Quang Nguyen and Mr Khoa Nguyen if they don’t have the necessary intent, if the jury is not satisfied they have the necessary intent? Or are you going to ‑ ‑ ‑
MR PIRRIE: I was not planning to leave the possibility of manslaughter, to argue the possibility of manslaughter to the jury. I was going to go on the basis it was murder.
HER HONOUR: If it is not murder it is not guilty?
Now, there is discussion that goes for a couple of pages. I will not read it all out, of course. Could I take your Honours to 662 – that is appeal book 662? Could I take your Honours to line 20, and this was in discussion, as your Honours can see down the page, with the learned prosecutor, Mr Pirrie. At line 20:
HER HONOUR: And for the aiders and abettors, but then in circumstances where Bill Ho’s found guilty of murder, but the jury is not persuaded Quang or Khoa intended that he shoot Heiu Luu with the intention that he with the necessary intent, either of them.
MR PIRRIE: It is an unlawful and dangerous act?
HER HONOUR: That’s right, there is room for a verdict of manslaughter against them if they intended the unlawful and dangerous act be done, it seems to me on the authorities.
MR PIRRIE: As aiders and abettors.
HER HONOUR: I am wondering if you are going to take that step‑by‑step through analysis?
I will not read out all the next page, but at 663, her Honour at lines 9 and 10 says –
I have got to tell the jury what their options are, and if the prosecution doesn’t propose to go as far as that . . .
MR PIRRIE: When Your Honour says “as far as that”, is Your Honour asking me what am I saying –
Down to line 22, the prosecutor says –
MR PIRRIE: My position would be that Your Honour should leave whatever is open, and I think in my submission those options Your Honour just detailed are open.
HER HONOUR: Yes, and in fact it would be advantageous and it should be left because it gives another option instead of guilty of murder, it gives the option of guilty of manslaughter, even if Mr Ho were guilty of murder. That’s the point.
So within that discussion, the prosecutor accepts that on the evidence, if the jury convict Ho of murder, as they did, nevertheless manslaughter was open for Quang and Khoa. Her Honour accepted that too. That is apparent from the discussion.
Now, as to the position of the appellant’s trial counsel, Mr Toohey, could I take your Honours to volume 3 of the appeal book and just before I take your Honours to the relevant pages, in volume 3 it is clear, in my submission, that Mr Toohey is very mindful of the obligations of a trial judge as was determined now, 40‑odd years ago, in Pemble and the numerous decisions of intermediate appellate courts in between. If there is an evidentiary founding for a manslaughter in a murder case it has to be left.
Could I take your Honours in volume 3 first of all to 887, that is 887 of the appeal book, at the top of the page, line 22? Mr Toohey, who of course appeared for the present appellant, at line 22:
Your Honour might recall that when this matter was raised I think Thursday, or possibly Wednesday we having discussion, I indicated, I thought I indicated, and it is apparent that I have not gone into the aspect of manslaughter at all –
Now, this was of course after his final address to the jury, so he is speaking about past tense -
I have not gone into the aspect of manslaughter at all, that it would be for your Honour on the evidence that you have heard in this trial to decide whether manslaughter or the possibility of a verdict of manslaughter, whether it is possible for the jury to return a verdict of manslaughter in relation to Khoa Nguyen. I indicated to you I thought that that’s a matter for Your Honour that you could have to put to the jury regardless of whether I had an argument about it or I didn’t.
HER HONOUR: Of course. I am simply, I couldn’t remember precisely where we got to. I am just pointing it out to you in case you are not aware what I would be saying, the case is put against your client on the basis of complicity. There are three bases – and it is very complicated the way ‑ ‑ ‑
That same page at line 26 her Honour says:
So they are the bases, or aiding and abetting. Manslaughter can arise, it seems to me, if Mr Ho is found guilty of murder and Mr Khoa Nguyen either agreed that an unlawful and dangerous act, in effect I am paraphrasing, an unlawful and dangerous act be committed and was party to an agreement like that, in which case he could, even though Mr Ho was convicted of murder, he could be found guilty of manslaughter.
MR TOOHEY: Yes.
HER HONOUR: Or alternatively, if the extended common purpose –
Without reading it all, outlines 12 and 13:
So in those cases there could be manslaughter. There could also be manslaughter if Mr Ho were found guilty of manslaughter as opposed to murder –
Mr Toohey says, at lines 20 to 25:
can I say this, Your Honour, what I say is that if Your Honour - either if or when Your Honour comes to the consideration that it is open on the evidence for manslaughter consideration to be put so far as my client is concerned, that is a matter for Your Honour and it is not a matter that I would argue against.
He repeats it, if he needed to repeat it, on the next page at 890. I should put it in context, next page, 890, line 6 her Honour says:
Yes, but I would entertain any submissions you wanted to make because sometimes the defence takes the view [t]hey don’t want manslaughter left and would argue against strenuously against it for fear of a compromise.
MR TOOHEY: Yes, I understand that.
HER HONOUR: And I am going to warn the jury about compromising . . .
MR TOOHEY: I at this stage have no argument about it, and can I say this, before your Honour charges the jury if I have any argument about [it] I will let you know as soon as I can, but I don’t anticipate that I will.
Well, I can tell your Honours what happened; he never had any argument about it. He never returned to it. So, the judges said on a number of occasions that there was an evidentiary foundation for manslaughter for this appellant, even if the jury convicted Ho of murder. The prosecutor said it. The judge said it. Defence counsel accepted it and this Court accepted it and, indeed, found it and it was the basis of their decision in, I think, paragraphs 45 and 46 where the Court accepted Mr Croucher’s submissions. What we say, therefore, for this appellant is this, because first there was a viable evidentiary foundation for the offence of manslaughter where Ho was guilty of murder on the basis of complicity.
Secondly, the learned trial judge did err in her directions to the jury with respect to complicity of manslaughter. The court below even accepted that. Then just as this Court ordered in the case of Quang the convictions, plural, sustained by the appellant, same two convictions as were sustained by Quang, must be set aside and a new trial ordered. Indeed, in our submission, that follows from both Gilbert and Gillard. The jury has been deprived of considering the intermediate position.
That is a wrong decision on a question of law or, more precisely, what we should say to use the language of both Gilbert and Gillard and Quang, there has been a wrong decision by the trial judge on a question of law, namely, within her erroneous directions with respect to manslaughter, and there has been a substantial miscarriage of justice because it cannot be shown to be inevitable that had the jury been properly instructed and given manslaughter as an alternative verdict to consider, the jury would have convicted of the offence of murder. That is why ‑ ‑ ‑
KEANE J: What about the attempted murder?
MR HOLDENSON: This Court ‑ perhaps I can just take your Honour to paragraph 11, I will return to paragraph 11 in the oral submissions. I have taken your Honours to that already. We have said in paragraph 11 of the oral submissions that the appellant’s conviction for the attempted murder of Chau must be set aside. That is what occurred in the case of Quang and that is set out in paragraphs 48 and 49. I know it is a very long paragraph, but 48 and 49. Could I take your Honours ‑ rather than reading through those paragraphs because, of course, this Court in Quang’s Case ordered that the conviction for the attempted murder be set aside and a retrial on that count as well ‑ could I, in a little detail, take your Honours to this Court’s reasoning in Gillard where the same thing occurred. Gillard reported (2003) 219 CLR 1, could I take your Honours to something of the facts by reference to the passage after the headnote at the foot of page 2? Your Honours will see after the headnote Gillard and Preston:
were indicted in the Supreme Court of South Australia on two counts of murder and one count of attempted murder.
Then, in the last three or four lines of the page:
Preston went into the workshop armed with a loaded gun, shot and killed Knowles and another man ‑
so that is the two convictions for murder, or the two offences of murder, I should say ‑
and shot and injured a third man.
That would be the count of attempted murder. Over the page, to page 3 at about point 6 on the page at the end of that extremely lengthy paragraph:
The jury convicted Gillard –
who was, of course, the appellant in Gillard ‑
of two counts of murder and one count of attempted murder. They convicted Preston of two counts of murder and one count of attempted murder.
Just dealing with the facts, and only the facts for the moment, could I then take your Honours to – there is a little more detail but in short form – the judgment of his Honour Justice Hayne at paragraphs 99 and 100 at page 33 of the report; to put some context around it, in paragraphs 99 and 100. So those are the facts. That was a case where, of course, the judge, on the request of defence counsel, did not put the alternative offence of manslaughter, which was of course relevant to the two counts and two convictions for the offence of murder. Could I take your Honours to the joint judgment of the learned Chief Justice, Chief Justice Gleeson, and Justice Callinan at paragraph 26, where the Court ‑ ‑ ‑
FRENCH CJ: Page?
MR HOLDENSON: Page 14, at paragraph 26, where Chief Justice Gleeson and Justice Callinan concluded that:
there was a viable case of manslaughter to be left to the jury, and the refusal to leave that case was a wrong decision on a question of law.
If I could take your Honours through the next paragraph, where the next paragraph answers the question raised of me by your Honour Justice Keane with respect to the other offence, in that case the third offence, the third count, attempted murder, which of course in this case is the other offence, albeit chronologically the first offence but the second count:
This raises the question of the proviso. Gilbert decides that it is not an answer –
jumping through that sentence –
It is unnecessary to repeat the reasons for that. The jury were wrongly deprived of an opportunity to consider an intermediate position. The respondent sought to distinguish Gilbert on the following ground. One of the counts on which the jury convicted the appellant was one of attempted murder. In relation to that count, there was no intermediate possibility of manslaughter. That is so, but the distinction does not answer the problem to which Gilbert was addressed. If, in relation to the two counts of murder, the jury were (by hypothesis) not properly instructed in the law of culpable homicide, then that could have affected the outcome of the whole trial.
That is leading into the count of attempted murder. They go on:
Although the error related directly only to the first and second counts, once it is accepted that the nature of the error is such as to affect the verdicts on those two counts it is impossible to dismiss the possibility that it also affected the verdict on the third count.
Now, if I could just as a matter of completeness identify the other passages in the other judgments before I return to the facts of this case. It is fair to say that paragraph 134 on page 42, the last paragraph in the judgment of his Honour Justice Hayne and the last paragraph in the judgment of the Court, Justice Hayne also determined that it was appropriate to set aside the conviction for attempted murder because his Honour in the last couple of lines “quashing his convictions”, plural. That is 134.
Moving forward to Justice Gummow, and I do this for a reason. Justice Gummow at paragraphs 31 on page 15 over to 35 on page 16, by reference to a passage from Gilbert, adopted the reasoning of Justice Hayne in paragraph 35 – that is Justice Gummow – and Justice Kirby, the other member of the Court in Gillard, at paragraphs 96 to 98, determined that it was appropriate to set aside each and all of the convictions and in paragraph 98 his Honour Justice Kirby agreed in the orders proposed in the joint judgment by Chief Justice Gleeson and Justice Callinan.
FRENCH CJ: When you are saying that one cannot exclude the possibility that a verdict in relation to the count of attempted murder might not have been affected by the failure to direct in relation to the option of manslaughter on the murder count, what is the hypothetical pathway of reasoning which would have led the jury to, for example, acquit on the ground of attempted murder?
MR HOLDENSON: One of the pathways of reasoning might be that in circumstances where the jury might well have first commenced its consideration of the count of murder and determined to convict of murder, by reference to the directions they were given, where there was a flaw by reason of the failure to put the intermediate position, the consequential implicit finding with respect to intention might then flow through to – might, I do not have to put it any higher than might and I do not have to talk about all 12 jurors, it only has to be one of the jurors – might then flow through to the finding they make with respect to intention for what they then proceed to consider, namely the count of attempted murder, notwithstanding the fact that the attempted murder chronologically took place prior to the offence of murder.
In other words, on the hypothesis that the verdict of guilty of murder was to be quashed because the jury’s reasoning toward guilt has been affected by the wrongful deprivation of the offence of manslaughter with the consequence that the jury’s finding of an intention to kill for the purposes of the count of murder has been vitiated, then it necessarily follows that the jury’s finding, or the finding of at least one of the jurors, of an intention to kill then the appellant for the purposes of the other count has likewise been vitiated, particularly in the light of the evidence which we have summarised in paragraph 11, which is they “were only seconds apart” ‑ I will just work through paragraph 11:
There was evidence that the shots were only seconds apart –
That is the evidence of Tien Pham, 262, 265 to 266 and 271 of the appeal book. Viet Tran said it was very quick. There was the evidence of the neighbour, David Chan, 10 or 15 seconds, at page 362, Kathleen Quach, 10 or 15 seconds, at 293. There was no warning, it was unexpected, nothing else occurred, it just happened, and you had the evidence also which was, if you like, corroborative of the evidence I have just described, coming from the mouth of Bill Ho as to the circumstances in which he shot ‑ as in, I am talking about the objective circumstances as distinct from his subjective circumstances – and so it cannot be said that the flaw, with respect to the directions which flow through directly to the offence of murder, it cannot be said that they have not also – or there is a possibility that they flowed through to the attempted murder, hence the reasoning of this Court in Quang, both convictions were set aside.
BELL J: The focus in Quang, I think, was on the reasons to reject the prosecution’s submission that because, on the evidence, the attempted murder preceded the murder one could infer from the jury’s satisfaction that there had to be the requisite intent to support the conviction for attempted murder that there was not a viable case on manslaughter in relation to the second count. That, I think, was the focus of the argument and is the focus really of the analysis.
MR HOLDENSON: Yes, but at the end of the – I am not sure.
BELL J: Mr Holdenson, at the end of the day, you have this going for you, do you not? The order of the court was to set aside each.
MR HOLDENSON: That is right and there is something of an explanation in the light of what your Honour has just put to me by reference to the word “focus”, an explanation in paragraphs 48 and 49 but I have certainly amplified it, I trust, by way of submission, by reference to Gillard because that was the case of Gillard, with respect to the third count, the count of attempted murder there. It was put, in my submission, and I adopted, I trust, the phraseology from paragraph 27 in the joint judgment - that is on page 14 - of Gillard:
once it is accepted that the nature of the error is such as to affect the verdicts on those two counts it is impossible to dismiss the possibility that it also affected the verdict on the third count.
As I recall in one of the judgments - in the judgment of Justice Kirby on page 17 I see a footnote (47) where your Honours will see cited Stanton. That is, of course, the decision of this Court which is authority for the proposition that a trial judge is not empowered to direct the jury as to the order in which they consider the counts before them for their consideration. The trial judge can, of course, and will, of course, direct the jury as to the sequence in which the jury must return its verdicts after deliberation but cannot direct the jury as to the order in which they consider the verdicts. It may well be that this jury worked by reference to the murder first.
Once you have reached the conclusion that there was an intention to kill with respect to Luu, it is only a short step, perhaps, in the light of the sequence of time to determine that there was the requisite intention, an intention to kill, with respect to that which occurred seconds earlier, that which was the subject of the count of attempted murder. So, in those circumstances, it is our submission, therefore, that this Court, as this Court ordered in the case of Quang, this Court order that both convictions be set aside and there be a new trial on each count.
FRENCH CJ: Thank you, Mr Holdenson. Yes, Mr Gyorffy.
MR GYORFFY: Your Honours, my learned friend has made a long submission and what we put in our outline or respondent’s outline of oral proposition in paragraph 2.3 still remains the case. There has not been any factual basis identified by my learned friend for the proposition that there is a way in which this jury could have considered that there was an agreement for anything less than an agreement to kill.
He says the jury might not have accepted the evidence in relation to the witness saying “I will fuck him off”. Okay, let us take that as a given. What is left? You are still left with all the other evidence that he is a party to the drug debt, that he knows that the drugs were previously delivered to that address. He knows that the money is owing. He turns up there with his partner in this drug debt.
BELL J: All of that makes for a powerful case of complicity with respect to the recovery of the drug debt, perhaps even by the use of violence, but what is determinative is whether there was not a viable option on any of the three bases on which complicity was put that the intention, whether to encourage – or we can run through each of them – reached no higher than some violence falling short of grievous bodily harm or killing. Now, for exactly the reasons that are set out in the judgment in Quang Nguyen’s Case at 503, paragraph 45 ‑ ‑ ‑
MR GYORFFY: I submit that is not the case, your Honour, because there is a very important aspect with Quang Nguyen. He had the sword. He did not chop anyone’s head off. He did not chop anyone’s hand off. He gently inserted some cuts. The jury is entitled to look at that and say that he had the opportunity to be violent, to kill, but he did not, and he apologised to one of the people in the flat saying “I am sorry, I did not know you were not a friend”.
BELL J: Of the three men who went, arguably to recover the drug debt, this appellant was the only one who was not armed. When one comes to consider was there an available hypothesis that this appellant did not intend that violence in the nature of grievous bodily harm or killing be administered, surely it must have been open.
MR GYORFFY: No, your Honour, because I say this – I am not being stubborn - what I am submitting is, he gave no account. Ho gave an account to the jury, but he went there to scare them. Quang gave an account to the jury that he was very drunk, he did not know what was going on. This man is there and gives no account, and the fact that he gives ‑ ‑ ‑
KIEFEL J: Did not some of the witnesses suggest that he was drunk as well?
MR GYORFFY: They did, but he gave no account, and he was seen by at least one witness to have given orders. He has been looked at from the point of view of the drug transactions as being the person in charge. He is the boss. The telephone call was made to him, and he arranges for someone else to come and do the delivery of the drugs. He arranges for someone else to do the collection of the payment, and what is critical is that the attack that was made, and the evidence of Ho in trying to attack, was on the basis that you were just dealing with someone over the telephone. How did you know that you were dealing with Quang? How did he know? He knew because of the accent that Quang had. If your Honours go to page 562 of the appeal book ‑ ‑ ‑
KIEFEL J: Which volume, Mr Gyorffy?
MR GYORFFY: That is volume 1, your Honour, lines 16 to 23:
Mr Ho, you’ve got a pretty broad Australian accent, would you agree with that?---Sorry?
You’ve got a pretty broad Australian accent, would you agree with that?---Yes.
Your accent I suggest to you is quite different to that of Khoa Nguyen’s, would you agree with that?---Yes.
So that if somebody was talking to – your voice is quite distinctive as compared to Khoa Nguyen’s?---Yes, I guess we are, sounds different.
You have a man who has had a two or three‑year relationship with Khoa Nguyen, who rings up and was not moved in his evidence, at all, that he spoke to this man. He also gave the evidence that on the ‑ ‑ ‑
KIEFEL J: That does not establish it as evidence accepted by the jury.
MR GYORFFY: When it comes to the question of whether conviction was inevitable, it is a question of analysis of the whole of the evidence that is there to see if there is any viable alternative. The point I am making here is that by virtue of him being a party to this drug dealing, by virtue of him being in charge of the drug dealing, there is no factual basis on which anything other than an agreement based on him being involved in the killing is available. To simply say that if you take one fact out that is not available, you still have to consider all that is left.
The problem that is left is that there is not one skerrick of evidence to say he just wanted to hurt someone. There is not one skerrick of evidence to say that he did not know about the gun. The gun came out. The gun was out for a considerable period of time. He is standing there. He is not saying to Ho, “Goodness me, what have you got that thing for?” He is not saying to him, “Put that away”. Then time elapses. The witness Quach indicates that he is revolving the barrel of the gun. That is going on in front of the witnesses. The witnesses then start to panic. It is then that the shots are fired. This man is there.
My learned friend places a great deal of emphasis on the fact that he might have been at the door, leaving the lounge room. True it is that Kathleen Quach said that, true it is that Bill Ho, his partner in crime, said that, but three other witnesses were not moved from the fact that he was over in front of the stereo. Kathleen Quach, by her own evidence, by that stage was hysterical. So take out that piece of evidence that there is a direction to shoot; there is still the evidence there to support the fact that it was an intention to carry out an agreement to kill. There is no basis ‑ ‑ ‑
KEANE J: Why would it be an inevitable inference that because he wanted to recover his drug debt that he had the intent to kill? Ordinarily, one does not kill one’s debtors.
MR GYORFFY: In the drug industry they do, your Honour. It is more than that; it is the addition of the gun, because he is aware of the production of the gun as well in the context of going there to collect the debt. He has done nothing to disassociate himself from that.
BELL J: Mr Crown, a few moments ago you said that people started panicking, on one view of the evidence.
MR GYORFFY: Kathleen Quach, yes.
BELL J: So I suppose one possibility would be that Bill Ho in response to that panic fired the gun, it not having formed part of the agreement. Mr Khoa Nguyen might have known that they were going to turn up armed in order to effect their purpose of recovering their debt but it does not follow as an inevitable inference that he intended to kill or do grievous bodily harm.
MR GYORFFY: Well, your Honour, the difficulty with that analysis, in my submission, is that if he panicked then he has not got the intent to kill or necessarily cause grievous bodily harm and the jury would have convicted him of manslaughter and they did not. We start this debate and the proposition that the principal has been convicted of murder, and that means that in terms of the shooting, the shooting that occurred is seen as being an intentional killing in the context of the way the case was run.
BELL J: Indeed. It is a surprise to hear from a prosecutor a suggestion that firing a gun at another human being in a situation where there is a degree of panic excludes that there is the necessary intention thereby to kill or to do grievous bodily harm. We are not talking of premeditation. Consistent with Mr Ho’s conviction for murder, I am just suggesting to you there is an alternative that is open.
MR GYORFFY: Yes, I am welcoming it because I have an answer to it. The answer is, your Honour, you are in a confined room. You are very close to seven other people and your two co‑accused. You have a 357 magnum or a 38 Smith and Wesson pistol and you are firing it at a body at a more or less point‑blank range. There is no other conclusion. Once the gun comes out, once the jury accepts that that was shot intentionally, then where is there any scope for there to be an agreement with Ho to do anything other than that? That is the difficulty and it has not been responded to in the submissions.
That is the difficulty that confronts any accused who exercises his right to silence and does not make a record of interview. He is left with no account given and then it becomes much easier for the jury to say, well, there is nothing on the other side of the table, there is this gun produced, he does not protest about it, he is a party to the drug debt, et cetera. The only alternative that was available, in my submission, was the alternative which was left which was aiding and abetting. That would have to be a finding on the basis that there was absolutely no agreement to collect the drug debt.
The way that that could arise would be if the jury accepted Ho’s evidence or had a reasonable doubt that Khoa was a person who was being dealt with on the telephone and that Khoa was nothing more than a person who was a conduit to pass the message on and in those circumstances there is no agreement. In those circumstances the only factual basis on which there could be liability was the presence in the flat and what could be inferred from the presence in the flat.
Once you add the other bits on, which were inevitable to be found on the evidence, in my submission, you cannot have any agreement than the one that was pleaded by the Crown. Indeed, if one looks at the response in the opening address of defence counsel, which is in appeal book 1, it commences at 72, appeal book 72, between lines 27 and 29 he makes the statement the mere fact that Khoa was there did not mean he committed the crime. At lines 30 and over the page to 73, point 2, he did not know:
Ho had a gun until such time as it was produced.
Page 73, point 2, to 73, point 5:
He did not know of the existence of any dagger until such time as it was produced in the flat.
Page 73, point 5 to 6, did not know occupants of the flat. Well, that proves to be wrong. Page 73, point 9 to 11:
had no reason to harm them or . . . cause anyone else to inflict harm on them.
Page 73, 12 to 14, not aware of any plan before entering the flat; 73, 14 to 16, no plan of arrangement was put in place inside the flat. Page 73, 17 to 18, did not cause anyone to produce the gun or dagger. Page 73, 19 to 20:
at no stage, gave any order to anyone to do anything with a gun.
FRENCH CJ: Now, is your position in these submissions consistent with the position taken by the prosecutor in the exchanges with the trial judge to which we were referred earlier at page 663, I think, in particular, of the appeal book?
MR GYORFFY: No, they are not, your Honour, I accept that. But that was just the start of the discourse between counsel and the judge, and this was the position. Initially everybody started the case on the basis that that was right, that there should be all three options left, but when it came to the crunch - and her Honour did in fact foreshadow to the jury that that was going to be left, but merely foreshadowed it, but when it came to the crunch and her Honour had to direct the jury on how it was done she could not find a factual basis to do it and she came to the conclusion that it would be too complicated to try and explain that to the jury.
But she did leave the alternative, which was aiding and abetting by presence, and that was, in my submission, a proper approach for the trial judge to take, particularly in accordance with Alford v Magee where it is one of the principles that you do not confuse the jury, you try and help them, and if a judge feels that this will be too confusing then it is proper not to give a direction.
Now, our discussion here today has indicated how difficult it is to formulate a factual basis that a judge could point to in this circumstance to the jury and say, “If you find facts A, B, C and D then it is open to you to come to the conclusion, if you wish, that he might have had a lesser intent” and that was put. That is the problem. As a matter of forensic reality it is not there, and that means that conviction was inevitable.
I have referred to all the passages of that discussion that I rely on in paragraph 6.24 of the respondent’s annotated submissions. What we submit is that when you go through those submissions, you have got a continuing debate. The initial position, yes, was, as your Honour the Chief Justice put it to me, everybody thought it might be open. As the debate went on and there are attempts made to try to analyse it to see how it could be put to the jury, the conclusion was reached that really the arguments in relation to agreement being less than what was run in the case were not a viable way of putting it but that there was a viable manslaughter and that was if the jury rejected his knowledge of the drug debts and being the boss in this transaction.
I then turn to my learned friend’s reliance on Pemble. I would simply say this. I have said it previously. Pemble does not stand for the proposition that you cannot take into account the way that a case was run in order to determine whether there has been a substantial miscarriage of justice. If it did that, then it would be contrary to Alford v Magee because Alford v Magee says exactly that all the factors set out there can be taken into account in determining whether or not there has been a substantial miscarriage of justice. All it said was where there is a substantial miscarriage of justice by virtue of a defence not being left, the prosecution cannot come back and say, but hold on, the defence did not want it left.
It does not speak to the question of how you determine in a given case whether or not a substantial miscarriage of justice occurred. If it is held to mean that it can never be taken into account how the case was run by the defence, then as I said, we submit that that would be contrary to Alford v Magee and there would be an inconsistency between the two decisions which your Honours need to resolve. We submit that the recent case in the Court of Appeal in Victoria of James, which was referred to in the authorities that are listed by us and, in particular, the judgment there of his Honour the President.
FRENCH CJ: This is an unreported judgment [2013] VSCA 55?
MR GYORFFY: That is it, your Honour. There is an analysis of Alford v Magee and Pemble and, we submit, that the manner in which his Honour the President analysed it is correct and should be applied. A contrary view was reached by his Honour Justice Priest at paragraph 172, I think. I think it is about 172, 173 and 175. His Honour Justice Priest took the view that if there is a viable defence, you cannot take into account how the case was run and he has taken that literal view of Pemble.
That shows the contest that there is and it is our submission that Pemble should be read consistently with Alford v Magee and it should be seen as not saying anything at all about how one assesses whether a substantial miscarriage of justice has occurred. What it does is it states the obvious. There has been a substantial miscarriage of justice. You cannot shut the appellant out because of the way his counsel ran the case. It is tautologous.
BELL J: I am not sure where this is taking us. In this circumstance, counsel for the appellant made clear that he intended to address the jury on the basis that – I withdraw that. He addressed the jury on a basis that did not advert to manslaughter on these bases, but made clear to the judge that it was his understanding that she may well feel the appropriate course was to direct in that way. That is a very understandable forensic choice for defence counsel to make.
MR GYORFFY: It is, your Honour, and it is constantly made. It does not take away the obligation to help the judge find the facts, though.
BELL J: But, Mr Gyorffy, this discussion of the relationship between Pemble and Alford v Magee in a context in which this Court in the matter of Quang Nguyen approached the question by reference to Gilbert and Gillard and made the orders that it made, I am just not sure quite where you are taking us with a discussion about ‑ ‑ ‑
MR GYORFFY: What I am submitting is that your Honours, when determining whether or not there has been a substantial miscarriage of justice, take into account the realities of the trial, the issues that were put, the manner in which the defence was run, the issues that were contested by the defence, which I have taken your Honours to in terms of the argument ‑ ‑ ‑
BELL J: But the defence was run on the basis that her Honour might well feel the appropriate course was to leave manslaughter, albeit counsel did not address upon it, and as you acknowledge, Mr Gyorffy, it is a very understandable forensic position to take.
MR GYORFFY: It is, but the key words of what your Honour said there were “it was run on the basis that her Honour might leave”, not that she must. No submission was made by counsel she must leave it. It was left entirely to her Honour to determine whether she would leave it, and having gone through that extensive debate that I have taken your Honours to in paragraph 6.24, her Honour came to the conclusion, exercising her obligation as a judge, that she could not leave it. That is the reality of the trial.
What we submit is in order to overcome that judgment it is not enough to say there were possibilities. My learned friends actually have to show, as your Honour the Chief Justice asked them, how do you get there? How do you get there? All that we have here today is a pure argument by analogy between the two cases of Quang and Khoa. That is all we have had. We have not had the facts put on the table. These are the facts on which the judge should have directed the jury in this case, given that her position was “I cannot see them. It is going to be too complicated for me to go down that path”.
BELL J: They are in paragraph 45 on page 503 of the report of Nguyen in 242 CLR.
MR GYORFFY: They are there, your Honour, on the basis that they might find certain facts not found. They are not put into the context of what facts then remain. That is the point. If you take a fact out, does that fact in itself conclusively change the position? We say it does not. It has to be analysed in terms of take that fact out that your Honour is asking me about, the fact that being told to shoot the man, in effect. Take it out.
You are still left with all the other material - the involvement in the drug debt, the gun being produced, nothing being said, nothing being done, the gun being fired and the jury finding that that was a deliberate firing in order to kill. That is the starting point in terms of what the jury found. Then it has to be differentiated in the case of this accused, and it is not. That is our submission.
In relation to the attempted murder, we have set out in our submissions that there was a challenge to attempted murder in the court below. It was not pursued. It was not pursued, and then at the end of the case the court said – I have shown your Honours where it is in the judgments – there were no arguments addressed to this, and then the court delivered its judgment and the judgment was in relation to grounds 1 to 6 and did not include ground 7 which was the matter.
There has been no ground, either down below or sought to be put here, that somehow there should be a quashing of the question of the conviction of the attempted murder. It is not challenged. What is put is look, it has happened in a couple of other cases and we cannot exclude the possibility that the attempted murder conviction has in fact been contaminated by the murder conviction.
Well, with respect, it does not matter which order the jury looks at these matters. They are given a separate considerations direction. They have to look at each case on the basis of the evidence which applies to it, it alone, and they are told you do not go and conclude just because count 1 is made out that count 2 is made out. So the jury on these facts found that there was an intention to kill in relation to that particular victim.
What about the directions in relation to a murder count would be relevant and have any impact on that discrete inquiry that has to be made by the jury? Nothing has been pointed to other than there is a possibility that it might have infected, but how? The alternative that the jury would come up with if it found that there was an intention to kill was an intention to cause serious injury, or injury. How is that related to a dangerous and unlawful act manslaughter?
How would a submission made in relation to dangerous and unlawful act manslaughter in any way influence the question this jury had to consider, well, was it an intention to kill or was it something less? For something less, I do not even know whether the alternative of intention to cause serious injury was left. If it is something less than intention to kill there should have been an acquittal, end of story.
Nothing has been pointed to by my learned friend that would indicate that there would be some form of contamination, given the directions that were given. Again, it is an argument by analogy, not on the facts of this case. Unless there is anything else, they are the matters, your Honours.
FRENCH CJ: Thank you, Mr Gyorffy. Yes, Mr Holdenson.
MR HOLDENSON: Our friend has made an attempt to draw a distinction between the case of Quang and the case of the appellant by reference to the drug debt and who was a party to the drug debt. The point, in our submission, is - the fundamental point is and what the case turns on is who was aware of the drug debt and that is a matter which was dealt with by this Court expressly in a number of passages, but could I take the Court to two further passages in the joint judgment back in 242 CLR where reference is made to it.
Could I take your Honours to page 501 of the report at the very end of the paragraph at the head of the page which happens to be paragraph 36? Could I take your Honours to the last seven or eight lines of the paragraph which read:
For present purposes, it is sufficient to observe that the evidence that was led at trial permitted the jury to be satisfied of the matters identified earlier in these reasons, namely: that all three men had come to the flat searching for Mau Duong for payment of a debt, and that, before or after arriving at the flat, Dang Quang Nguyen armed himself with a sword with which he sought to enforce the demands for information that the men were making.
Once it is shown that the jury could conclude that Dang Quang Nguyen was party to an arrangement to collect a debt using violent means if necessary, the question becomes: what level of violence did Dang Quang Nguyen agree would be used –
and so on. Then it was Quang’s counsel who in paragraph 45 formulated the viable evidentiary foundation and by reference to the awareness of the drug debt and the making of threats to enforce it and thereby provided the evidentiary foundation for the offence of manslaughter, notwithstanding the fact that Ho was guilty of murder and this Court, in the next paragraph, accepted those submissions.
I work by reference to and adopt as my submissions the submissions there made in paragraph 45 as constituting the evidentiary foundation for a version of the facts which satisfies the description of Justice Hayne in Gillard, “a viable evidentiary foundation”. It is in our outline of submissions at paragraph 6.24.
Another basis for the attempt by our friend to draw a distinction between the case of Quang and the case of this appellant was by reference to the record of interview of Quang. Could I just tell your Honours two things about the record of interview of Quang? It was in that record of interview that he says he was not even there in the flat at all. Could I make that proposition good by taking your Honours to appeal book volume 4 at page 1438? At page 1438, your Honours will see part of the reasons for sentence of the learned sentencing judge, as she then was. It is in paragraph 27 that the learned sentencing judge summarises the content of the record of interview conducted by the investigating police officer with Quang:
When interviewed, he claimed to have been asleep at home the night before, after drinking too much at a party in the Richmond block of flats.
The content of the record of interview formed no part whatsoever of this Court’s analysis of the facts and the viable evidentiary foundation in the case of Quang in (2010) 242 CLR.
The next point made by our friend concerned Pemble and Alford v Magee. The short answer to that is this Court’s decision in Gillard. In Gillard defence counsel asked the learned trial judge not to leave the alternative offence of manslaughter. He did not leave it. We know what happened on appeal, both to the South Australian Court of Criminal Appeal and here. The court held that was an error, it should have been left. It was open.
Then there is the last matter, which concerns the conviction and the attack upon the conviction for the offence of attempted murder. May there be no doubt about this. I appeared below and I work by reference to notes and I ran the point below. I am in a position to provide the notes to which I spoke, because I half anticipated this in the light of paragraph 6.4 of our friend’s outline.
The challenge was made below by me to the conviction for the attempted murder, and it was made by reference to what would be a
consequence of my client, the present appellant, succeeding in having the conviction set aside for murder, in respect of which I clearly failed, and as a consequence the court did not need to consider my consequential argument. But the consequential argument, and I can provide copies of this because I work by reference to notes, and I can hand it up now if need be ‑ ‑ ‑
FRENCH CJ: Just bear with us a moment.
MR HOLDENSON: Yes, your Honour.
FRENCH CJ: I do not think we will be assisted by your notes, Mr Holdenson.
MR HOLDENSON: The point I make is precisely the same submissions that I have made – we have made within our written documentation in this Court, both on the special leave application and on this appeal and which I have put orally in part by reference to answering the question raised of me by your Honour Justice Keane in which I made reference to paragraph 11 of the oral submissions, it was always the case for this appellant that there was an attack upon the conviction sustained by this appellant for the offence of attempted murder.
BELL J: Can I just take up with you the sufficiency of your notice of appeal?
MR HOLDENSON: Yes, your Honour.
BELL J: At application book 1590.
MR HOLDENSON: That is correct, your Honour.
BELL J: The ground challenges the sufficiency of the directions respecting the alternative count of manslaughter in relation to the count of murder in the indictment, and the orders that you seek are that the appeal be allowed and the orders of the court below dismissing the appeal be set aside and a retrial ordered.
MR HOLDENSON: Yes. Well, just so that it is clear, a retrial be ordered on both counts.
FRENCH CJ: I think we understand your position.
MR HOLDENSON: I do not have to hand the notice of appeal in the case of Quang but nothing turns on that.
FRENCH CJ: Yes, all right. Yes, thank you. The Court will reserve its decision. The Court adjourns until 9.30 tomorrow morning.
AT 11.45 AM THE MATTER WAS CONCLUDED
2
0