Nguyen v The Queen

[2013] HCATrans 57

[2013] HCATrans 057

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M94 of 2012

B e t w e e n -

DANG KHOA NGUYEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 MARCH 2013, AT 3.28 PM

Copyright in the High Court of Australia

MR O.P. HOLDENSON, QC:   May it please the Court, I appear in this matter with my learned friend, MR C.B. BOYCE, for the applicant.  (instructed by Victoria Legal Aid)

MR T. GYORFFY, SC:  May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the respondent.  (instructed by Solicitor for Public Prosecutions)

KEIFEL J:   Yes, Mr Holdenson.

MR HOLDENSON:   A convenient starting point on this application is the judgment of this Court in the case of the applicant’s co‑accused, the case of R v Nguyen 242 CLR 491 which is behind tab 1 in the joint folder of authorities. In that judgment, this Court held that there was a viable factual foundation for a verdict of guilty from the jury on the offence of manslaughter as an alternative to the count of murder on three bases: on the basis of extended common purpose; on the basis of concert and on the basis of aiding and abetting for the successful cross‑appellant Nguyen in that case. That is apparent from paragraphs 45 and 46 at page 503 of the report. In paragraph 45, your Honours will see in paragraph 45 it is said that:

The respondent submitted that the trial judge’s instructions precluded the jury from considering what were described as “viable and entirely apt alternative verdicts” on the charge of murder.  Counsel for the respondent offered three examples of findings of fact which were open, and if made, would have led to a verdict of manslaughter –

Two lines below that “extended common purpose”; six lines below that “As to concert” and three lines below that “As to aiding and abetting”.  It is in the next paragraph, in paragraph 46 that this Court held that:

Contrary to the prosecution’s submission in this Court, each of these conclusions was available to the jury.  Again, the conclusions were not the only findings the jury could make, but they were open.

KIEFEL J:   At paragraph 51 of that judgment, it is specifically stated that:-

Whether some different conclusion could or should be reached about substantial miscarriage of justice in the case of –

the applicant for special leave here –

is a question that was not addressed in argument and about which we express no opinion.

MR HOLDENSON:   That is correct.

KIEFEL J:   As I take it from your submissions, you say that there is nothing to distinguish in any material respect the position of the applicant here from the co‑accused, Quang.

MR HOLDENSON:   At the end of the day, the analysis is equally applicable to this applicant.  There are, however, two differences in fact, one of them in favour of this applicant ‑ ‑ ‑

KIEFEL J:   That he had no weapon?

MR HOLDENSON:   He did not have the sword, was not wandering around the room waving and slashing the sword and cutting people.  That is one difference in evidence, so that is a matter in favour of this applicant.  The other matter which was the subject of difference was that the evidence from the mouth of the victim on the other count, the count of attempted murder, who said that when he woke up he saw the applicant sitting on the stereo say to Bill Ho, the shooter, “Get him off” or “Fuck him off”, and then when Bill Ho pointed the gun toward that victim and asked the applicant if he meant that guy, he saw the applicant nod his head.

Now, that evidence was disputed.  None of the other five applicants of the flat who gave evidence in the trial, each and all of them gave evidence in the trial, not one of them gave evidence to that effect.  Bill Ho, the shooter, gave sworn evidence to the contrary.  He was strongly cross‑examined by the prosecutor.  The page references are identified in the respondent’s summary of argument in this Court.  Bill Ho gave consistent evidence to the effect that the applicant was not sitting on the stereo.  Indeed, the applicant was standing at the other end of the room near the doorway, and he also said, and repeated the fact, that the applicant said nothing at all before he, Bill Ho, shot that victim.  That then takes us to the applicant’s summary of argument with respect to these factual matters.

KIEFEL J:   Was the witness cross‑examined on that?

MR HOLDENSON:   Bill Ho, yes.

KIEFEL J:   No, the witness who awoke and said that he heard ‑ ‑ ‑

MR HOLDENSON:   Yes, he was cross‑examined and he maintained that evidence, albeit it there were some differences in his evidence between the committal proceeding and the trial.  He also was cross‑examined as to the circumstances in which he came to recollect that this had occurred.  He did not have this recollection until many days after he was shot.  He was, of course, rendered unconscious by the shot.  Subsequently, after dreams, he realised this is what had happened, it had come to him in a dream and then it all became clear to him and he recounted that.

Now, in the light of that evidence, it could not be said that the jury were necessarily going to make the finding that Bill Ho had been a party to the conversation with this applicant immediately before shooting the gun.  Now, if I take your Honours to page – I think it is 410 of the application book, your Honours will see on page 410 at paragraphs 3.23 and thereafter we deal with these factual differences.  In paragraph 324 we draw attention to the evidence of the victim on the attempted murder.  Could I take your Honours down to 3.25 we make reference to how it is that this applicant was not waving the sword around.

In paragraph 3.26 in the middle of the page we put the submission that even if it was not open to the jury to doubt that the applicant had said “Get him off” it was nevertheless open to the jury to conclude that those words were uttered other than with a murderous intent on the applicant’s part.  In any event, those words only applied to the count of attempted murder and as we point out by way of submission at the foot of the page in paragraph 3.27, the uttering of those words before Bill Ho shot that victim did not necessarily flow through to what subsequently occurred after the shooting of that victim which was, of course, the shooting of the next man who was, of course, the subject of – he died, he was the subject of the count of murder.

As we have set out in the middle of that paragraph that could well have been entirely on the evidence, not surprisingly unexpected in the mind of this applicant.  So we say that, notwithstanding the fact that this Court in the earlier case did not consider the case of this applicant, the analysis of law nevertheless, in our submission, flows through.  Indeed, the court below accepted that there was error in the directions given by the judge, it is just that the proviso loomed large, and not by reference to the “Get him” or “Get him off” – sorry, your Honour.

KIEFEL J:   The question of the proviso was not raised by the Crown in the Court of Appeal?

MR HOLDENSON:   Yes it was.

KIEFEL J:   Where does that appear?

MR HOLDENSON:   In the judgment below.  If I take your Honours to page 388 of the application book, your Honours will see flowing through the pages the analysis by reference to cases of Gilbert and Gillard, which were held to be distinguishable.  Those cases are, of course, cases where it is said by this Court that the proviso is inapplicable.  Gilbert, of course, being the case where the jury by reason of the directions was denied giving consideration to the alternative position, namely the alternative offence of manslaughter, and it being held that in those circumstances the verdicts must be set aside.  The same in the case of Gillard, Gillard being the more recent decision of the High Court to which reference is there made.

So what we say by way of submission is this to your Honours.  The applicant’s conviction for murder must be set aside, just as it was for the co‑accused Quang it was set aside, and just as the erroneous directions resulted in this Court also setting aside Quang’s conviction on the count of attempted murder, those very same erroneous directions have also infected the jury’s conviction of this applicant on the count of attempted murder, and so this applicant’s conviction on that count must also be set aside. 

That course, of course, is entirely consistent with the course adopted by this Court in Gillard where, of course, Gillard on the basis of complicity was convicted of not only two counts of murder but also the count of attempted murder, the shooter in that case a Mr Preston being convicted on the two counts of murder and the one count of manslaughter, and as was held in that court – I am just explaining in long terms the reasoning of this Court in the case of Quang Nguyen, how it is that the erroneous direction has flowed through to the conviction of the jury with respect to this applicant on the offence of attempted murder.

KIEFEL J:   What do you say to the respondent’s paragraph 3.16 to 3.19 concerning the proviso, your reply is rather short in relation to ‑ ‑ ‑

MR HOLDENSON:   I am just looking for 31 ‑ ‑ ‑

KIEFEL J:   Paragraph3.16 to 3.19.  You just say the proviso ought not to be applied.

MR HOLDENSON:   The proviso is, with respect, entirely inapplicable in this case.

KIEFEL J:   In this case because of Gilbert.

MR HOLDENSON:   Yes, Gilbert and Gillard.  In any event, when regard is had to the analysis of this Court in Quang Nguyen, it flows through to this case.  The proviso was not applied in a manner adverse to Quang Nguyen.  It, with respect, could not apply in a manner adverse to this applicant.

KIEFEL J:   Yes, I see.

MR HOLDENSON:   Those submissions, when one gets down to 3.17, 3.18 and 3.19 are the sorts of submissions that one reads when the Court is faced with a ground of appeal that the verdict of the jury is unreasonable and/or cannot be supported by reference to the evidence led.  That is not the point that this applicant is running. That was the point that Quang Nguyen ran in response to the appeal brought by the Crown.  Of course, Quang Nguyen failed with regard to that, hence the cross‑appeal and his success on the cross‑appeal.

KIEFEL J:   You need an extension of time, do you not, on this question?

MR HOLDENSON:   Yes, we do need an extension of time and, as we have set out in the reply at pages 432 to 433 of the application book, one of the matters which, of course, looms large with respect to the exercise of the discretion to dispense with compliance from the rules is, of course, merit, translated into the language of this case as to whether or not there has been a substantial miscarriage of justice and, in our submission, that matter has already been determined in a manner favourable to this applicant when regard is had to what was determined in the matter of Quang Nguyen.  In those circumstances, it is submitted that it is appropriate that there be an extension of time or, to use the language of the relevant rule which is Rule 41.02, a dispensation from compliance with the rule.  Short point, we fit within Quang Nguyen. 

KIEFEL J:   Yes, thank you, Mr Holdenson.  Mr Gyorffy?

MR GYORFFY:   Short answer, they do not.  Quite simply, your Honours, if I take your Honours to page 388, 389 of the application book.  My learned friend avoided answering the question that your Honour Justice Kiefel put, was the proviso relied upon in this case in the court below.  The answer is it did not have to be.  It did not have to be because the Court of Appeal found that Gilbert did not apply.  Gilbert did not apply because manslaughter was left on one basis, that is the basis that there was aiding and abetting by virtue of presence at the scene of the crime.  Therefore, it was not the situation in Gilbert that is the stark difference between murder or nothing.

KIEFEL J:   But that was dealt with in turn by this Court, was it not, in relation to Quang’s appeal?

MR GYORFFY:   But Quang is a different case, your Honour, is our point.

GAGELER J:   But getting back to the question, so the correct answer, you say, is that the proviso was not relied upon by the Crown in the Court of Appeal?

MR GYORFFY:   And the Court of Appeal did not apply the proviso.  It said that Gilbert’s Case did not apply to the circumstances of this case.  This is Khoa’s ground of appeal in paragraph 145.  From then on that is what they are talking about, this appeal.  The second point which is critical and crucial in this, if I take your Honours over the page to 391, in order for the question of manslaughter to be left on the other two base  s, it was necessary that there be a factual foundation for that in the case of Khoa.  Now, what this Court found in the case of Quang was that there was a factual foundation for it.  But the Court of Appeal below at 157 said:

If the jury was not satisfied beyond reasonable doubt that Khoa or Quang knew that Ho took a gun with him to the flat, there would be no evidence permitting their conviction for manslaughter on the basis they had acted in concert with him or were caught by the doctrine of extended common purpose.

Now, a large part of the time at the trial was spent with the judge trying to get from counsel some assistance about if we put this line of defence, what are the facts that I have to tell the jury about.  The point in the court below was in relation to Khoa there were not any.  Nobody could point to the facts on which it would base that defence.  So the Pemble situation does not arise.  It is a necessity that there be a factual basis, it can go to the jury, the Court of Appeal found that there was not, and in our submission they were correct in doing so.

GAGELER J:   If you start though with the High Court decision, how is the case of Khoa different from the case of Quang, as analysed by the High Court?

MR HOLDENSON:   Well, the High Court did not go to the Khoa Case.  The case was put by the Crown on the basis that there was a drug debt owing and that the aspects of concert or extended common purpose came from the fact that the three men went to the flat in order to enforce the debt and it was part of the agreement to enforce the debt that they would use force and kill if necessary.  That is the way the case was put.  The fundamental difference between Khoa and Quang was that Khoa on the evidence was a party to the drug transaction with the person that they were coming to the flat to look for.  Quang was not.  There was no evidence at all that Quang was a party to that. 

That is a substantial difference, and when that is added to what happened in the lounge room, that is that the person who actually shoots the gun turns to this man and seeks instruction in the context of what is going on, that again is a significant difference.  So Quang was a third person who came along.  There was no evidence to link him to the drug transactions, and that is fundamental.  The point that the Court of Appeal was making in those paragraphs I took your Honours to was that once you have got the understanding of the drug debt, it becomes impossible to formulate a factual situation for Khoa that makes any sense in relation to dangerous and unlawful act manslaughter by concert or extended common purpose.

GAGELER J:   Are you saying the Court of Appeal drew a distinction between Khoa and Quang?

MR GYORFFY:   In the paragraph I took your Honours to, 391. 

GAGELER J:   Which paragraph?

MR GYORFFY:   Paragraph 157:

If the jury was not satisfied beyond reasonable doubt that Khoa or Quang knew that Ho took a gun with him to the flat, there would be no evidence permitting their conviction for manslaughter on the basis they had acted in concert with him or were caught by the doctrine of extended common purpose. 

Now, the common purpose that has been put forward is enforcement of the drug debt, and the taking of the gun was the question which there was no evidence at all would support the proposition that Quang knew – that is the man with the sword knew – there was also no knowledge in this case when Quang got that Samurai sword, whether he got it in the flat or he brought it with him, that was an open‑ended thing.  So the point is within the context of what is put forward as being the agreement that is to go to this flat to enforce a drug debt, if you do not know that Ho has got the gun, then there is no basis on which you can put those matters forward.

KIEFEL J:   You say that there is a special factual scenario present in relation to this applicant for special leave ‑ ‑ ‑

MR GYORFFY:   Yes, and the last four sentences ‑ ‑ ‑

KIEFEL J:   In the judgment of this Court in Nguyen at page 503, paragraph 45, the Court deals with the submissions there that there are a number of conclusions as to “extended common purpose” and “concert”, taking into account the facts that there was a recovery of a drug debt involved and that Ho was armed and conclude that each of those conclusions was available to the jury. How can ‑ ‑ ‑

MR GYORFFY:   In the case of Quang.

KIEFEL J:   No, but the circumstances that their Honours refer to are the objective circumstances relating to the attendance for the purpose of the recovery of the drug debt and that there may have been no more than an assault or threatening in a dangerous fashion involved.  They were the matters that were open to the jury.  Why are they not equally open to the jury in relation to this co‑accused?

MR GYORFFY:   For the reasons set out in the second‑half of paragraph 157:

For the men to be guilty of manslaughter by acting in concert, it would be necessary to construct a hypothetical scenario in which Khoa or Quang knew of the drug debt, and reached an understanding with Ho that an unlawful and dangerous act, other than the use of the gun to threaten the occupants, would be used to collect it.  There was no evidence supporting that hypothesis.

KIEFEL J:   Do you say that that is consistent with the approach of this Court at paragraph 45?

MR GYORFFY:   It is because of the differences that I have pointed to.  That Quang is a party to that agreement – sorry, Khoa is whereas Quang was not.  That is why there were reservations in the judgment about it.  That Court was concerned with the actions of Quang.  Particularly the focus was on the use of a Samurai sword and how people were affected by it, how the Samurai got there and those issues.  So this Court then was focussing on that, and it is accepted that there are – and the Court pointed to the factors which could be taken into account to come up with an argument to put to the jury that ‑ ‑ ‑

KIEFEL J:   But the question in this case is whether or not it should have been open to the jury to consider manslaughter, not what the likely outcome may be, although you argue that the proviso should be applied.  But that is really the question, is it not?

MR GYORFFY:   In my submission, no.  The question is, is there an evidentiary foundation in relation to Quang which allows it to be put.  If there is not, in other words, if the Court of Appeal has got it wrong in 157, then yes, it should have been put.  But we submit that they have not got it wrong.

GAGELER J:   They got it wrong in relation to one of the accused.

MR GYORFFY:   Yes, they got it wrong in relation to Quang because there was no evidence to link Quang to the drug transactions.  So Quang was completely outside of that whereas ‑ ‑ ‑

GAGELER J:   Is that the basis on which the High Court proceeded?

MR GYORFFY:   Well, it is the logical basis on which the alternative hypotheses are formulated.  So the difference is that in relation to Quang, if he has got no knowledge of the existence of the drug debt, then it is open to say that he does not know to the same extent what the purpose is for going there. 

KIEFEL J:   But it was also open to the jury to say that Quang – and this is the way the Court appears to have approached it at paragraph 45 of this Court’s judgment – that he did know and “was party to a plan” to recover a drug debt by violence.  That was the Crown’s case.

MR GYORFFY:   That could be inferred from the circumstances, yes, but what I am saying is that there is a fundamental difference that there there was still a logical alternative that could be put on the facts which was independent of that knowledge.

KIEFEL J:   As matters for the jury.

MR GYORFFY:   Yes, but in this instance in relation to Khoa, because of his relationship to the drug debt itself and the relationship that occurred where he was telling Ho what to do, it is a different case altogether and in those circumstances there was no logical way it could be put, and that was the problem.  When the judge asked for help to say “How do I put it” it could not be given to her.

KIEFEL J:   If this Court was minded to grant special leave, what do you say about the question of delay and the application for an extension of time?

MR GYORFFY:   Well, there was no satisfactory reason given in relation to the application for delay.  The judgment in the High Court was I think two years old before this application was put.  Nothing said as to why ‑ ‑ ‑

KIEFEL J:   There was a difficulty in relation to obtaining legal representation. 

MR GYORFFY:   Well, your Honour, two years is a long time and there was legal representation putting these arguments in the court below.  Then, beyond that, the defence itself is now eight years old and it becomes very difficult to see how there can be a meaningful re‑trial in circumstances of a delay of this dimension.  We would submit ‑ ‑ ‑

KIEFEL J:   It is not unknown, of course, to have re‑trials of this sort of period.  There is nothing particularly factually complex about this, is there?

MR GYORFFY:   Well, it seems to have been sufficiently complex to come to the High Court on two occasions, your Honour.

KIEFEL J:   It does not always mean the facts are complicated.

MR GYORFFY:   The difficulty is with the nature of the witnesses.  You are dealing with a drug culture and I have no idea whether there are available witnesses or not, and what the status is of them after all these years.  But we would also submit that even if there is an argument, it is not sufficiently strong an argument to, after that delay, grant leave.

KIEFEL J:   On the question of delay I think, Mr Holdenson.

MR HOLDENSON:   Your Honour, there is a ready answer.  If what they are saying is witnesses might be unavailable, the answer is to be found in section 65(3) of the Evidence Act which came into operation in this jurisdiction on 1 January 2010, the Uniform Evidence Act with which your Honours are familiar from the Federal Court.  Subsection (3) provides:

The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied:

(a)cross‑examined the person who made the representation about it; or

(b)had a reasonable opportunity to cross‑examine the person who made the representation about it.

KIEFEL J:   Does that apply in criminal proceedings?

MR HOLDENSON:   Yes, section 65 “criminal proceedings if maker not available”.  Now, there are cases on this now in this jurisdiction.  Section 65(3) works in such a way that the Crown now – they always could but now it is infinitely more easy, just read in the transcript of the evidence that has already been given, and for all I know it will be on a DVD or a videotape, in any event, because as your Honours will recall from cases that have been up to this Court, for example, Dupas, all these things are video recorded or DVD recorded in the trial division to play the tape.

KIEFEL J:   That might not be a complete answer but yes ‑ ‑ ‑

MR HOLDENSON:   It is an answer if the point taken against us is that there might be an unavailable witness.  As to drug culture, the case was not run by the Crown on the basis that the people in the room were involved in drug trafficking or in the trafficking of drugs into the community, or, for that matter, even the use of drugs by themselves save and except someone had smoked marijuana earlier that night.  If your Honours need any assistance with respect to the prosecution case, I can take your Honours to some short passages.

KIEFEL J:   No, we do not require that, thank you. 

MR HOLDENSON:   As your Honours please.

KIEFEL J:   There will be an extension of time in this matter and a grant of special leave.  Would the parties contact the Registrar about the time for submissions before they leave today and, of course, the Court regards compliance with the timetable as important.

MR HOLDENSON:   We will not let your Honour down.

KIEFEL J:   The Court adjourns to 10.15 am on Wednesday, 3 April in Canberra.

AT 3.58 PM THE MATTER WAS CONCLUDED