Qui Thi Lou v R Phuong Thanh Huynh v R Tai Van Huynh v R Nos. SCCRM 94/201, 94/202 and 94/203 Judgment No. 4684 Number of Pages 17 Criminal Law and Procedure Appeal against Conviction for Unlawful Imprisonment
COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(2), PRIOR(3) AND PERRY(1) JJ
CWDS
Criminal law and procedure - appeal against conviction for unlawful imprisonment - Three appellants alleged to have detained victim in dwelling house - held that although the trial Judge erred in law in failing separately to direct the jury as to the individual cases of the appellants, there was only one body of evidence relating to all three and the summing up dealt adequately with the real issues - no substantial miscarriage of justice - other grounds of appeal relating to directions as to burden of proof, doctrine of common purpose and the elements of the of fence and that the verdict was unsafe were not made out - appeal dismissed. Criminal Law Consolidation Act 1935s353(1). R v Towle and Ors (1953) 72 NSWR 338 and Holland v R (1993) 117 ALR 193, considered.
HRNG ADELAIDE, 23 June 1994 #DATE 22:7:1994
Counsel for appellant Qui: Mr W. Boucaut
Solicitors for appellant Qui: Andersons Barker Gosling
Counsel for appellant Phuong: Mrs M. Shaw
Solicitors for appellant Phuong: Andersons Barker Gosling
Counsel for appellant Tai: Mr C. Kourakis
Solicitors for appellant Tai: Andersons Barker Gosling
Counsel for respondent: Ms W. Abraham
Solicitors for respondent: DPP (SA)
ORDER
Appeal dismissed.
JUDGE1 PERRY J The three appellants appeal pursuant to leave from a conviction pronounced in the District Court following a trial before a Judge and jury on an information charging them jointly with having on 5 January 1993 at Pennington unlawfully imprisoned Ngoc Thibich Nguyen and detained her against her will. The information particularised the period of the alleged detention as "about three hours". The conviction followed a majority verdict.
2. The appellants were represented by one counsel at the trial. However, they filed separate notices of appeal and were separately represented before this Court. The grounds in each notice of appeal are identical. The appellants claim that the verdict "is unsafe, unsatisfactory and against the weight of the evidence". They advance a number of other grounds based upon alleged shortcomings in the Judge's summing up. I will refer to the grounds more specifically in due course.
3. During the course of these reasons I will refer to the appellants as Mrs Qui, Phuong and Tai respectively. Phuong and Tai are respectively a daughter and a son of Mrs Qui. I will refer to the alleged victim as Ngoc, and her husband, who was a witness for the prosecution, as Hoai.
4. Ngoc was aged 25 years at the relevant time, and had migrated to Australia from Vietnam in 1981. She had met Phuong in about 1987 when they both were living in Melbourne, and had maintained an acquaintanceship with her since then. She knew Mrs Qui and Tai and Mrs Qui's other children. Ngoc and Hoai ran a restaurant. Mrs Qui, who was aged 64 years at the time of the trial, and her husband Huynh Van Nghia ("Huynh") were living at all relevant times at a house property at 11 Condon Street, Pennington with three of their children, Tai, Phuong and another son Hen, together with Hen's wife Trinh and Hen and Trinh's young family. Tai and Phuong were not married. Tai owned the house. At the time of the trial Tai was aged 38 and Phuong 36. There is another daughter, an older sister of Phuong, known as Nga, whose husband, a cousin of Hoai, is known as Lam.
5. For some time before the day upon which the alleged offence was committed, it had become known to Ngoc and Hoai that Phuong was asserting publicly amongst their friends that Ngoc owed to her a considerable sum of money, some thousands of dollars.
6. On 4 January 1993, the evening before the day upon which the offence is alleged to have been committed Ngoc and Hoai attended a party. The party was a housewarming put on by a Vietnamese friend. At the party Hoai spoke to Lam about the assertions which were being made by Phuong, which he did not believe were true. He told Lam that he would come to the house at Pennington the next morning at about 8 am to speak to Phuong to try to clear the matter up.
7. There was another reason for Hoai to go to Tai's house. Hoai had previously been told by his brother, who lived in Melbourne, that while his brother was on a visit to Adelaide, another of Mrs Qui's sons, one Sang had borrowed from Hoai's brother $2,000. Sang was to come to Hoai's restaurant on 4 January to repay the money, but did not turn up. Although this was disputed at the trial, Hoai believed that Sang also lived at Tai's house.
8. So it was that on the morning of Tuesday 5 January 1993, at about 8 am, Ngoc and Hoai, together with their small baby, came to Tai's house with the two-fold purpose of thrashing out with Phuong why it was that she was making what they believed to be unfounded assertions of indebtedness to her by Ngoc, and to pursue the question of repayment by Sang of the loan of $2,000 made by Hoai's brother.
9. At this stage I take up the narrative as it appears in Ngoc's evidence.
10. When they came to the house, Mrs Qui opened the door and led them into the living room. Phuong was present. Phuong and Mrs Qui then invited Ngoc to the kitchen. She followed them into the kitchen, leaving her husband holding the baby in his arms in the sitting room. Phuong left briefly to go to the bathroom. Mrs Qui, speaking in Vietnamese, challenged Ngoc to say what had happened to her daughter's money which had been lent to Ngoc. When Ngoc denied knowledge of what she was talking about, Mrs Qui called out to her daughter Phuong, who returned to the kitchen. She explained to Phuong that Ngoc was denying knowledge of the loan of the money. Phuong asserted that the money had been lent. Mrs Qui said that it was over $20,000 but Phuong corrected her, saying it was $19,000.
11. Mrs Qui became angry and started talking loudly, at which stage Hoai came into the kitchen, accompanied by Tai and Hen. Hoai started to ask what was going on. Mrs Qui explained that Phuong had lent the money to Ngoc. Hoai challenged them to produce confirmation in writing. Phuong brought out a piece of paper which Hoai looked at. Hoai was not satisfied and asked whether there were any witnesses. Phuong said that Nga was a witness. Tai then phoned Nga to come to the house. She arrived a few minutes later with her husband Lam.
12. Nga joined in what by then had become collective assertions by Mrs Qui and her family directed at Ngoc and her husband that Ngoc owed the money to Phuong. At some stage Phuong left the group with her brother Hen, to fetch another alleged witness to the loan. That was a lady called Mi (also known as Ha). Mi returned with the other two.
13. The discussion became more heated. Mrs Qui placed a blank piece of paper and a pen in front of Ngoc and asked her to write her name, place of birth, address and an acknowledgment of the indebtedness of $19,000 to Phuong. It is at about that stage that Ngoc alleges that Mrs Qui took a kitchen knife out of a drawer in the kitchen and held it near her throat while Phuong held Ngoc's arm. Nga exhorted Ngoc to acknowledge the debt, with the promise that if she did so, Ngoc could then go and open up the restaurant.
14. Ngoc's evidence was that the knife was held at her throat for between half an hour and forty minutes. In the end she said that she owed the money, following which Nga immediately challenged her to sign an acknowledgment of the debt. When Ngoc declined to sign and said that they had promised to let her go if she said that she owed the money, Mrs Qui became "very angry" and punched her on the forehead with an open hand, following which she felt dizzy. At about this time, Tai started to roll up his sleeves and said, "If you're not going to sign any piece of paper" he would hit her "so as to spill blood". Mrs Qui then threatened to cut Ngoc's face "and make a lot of mark on your face and make your husband look at you ugly and probably he might going to divorce you". At the stage at which these threats were being made, according to Ngoc, those present were Mrs Qui, Tai, Phuong, Mi, Hen, Trinh, Lam, Nga and another person called Kim Croung.
15. By then the baby daughter was crying. Hoai asked whether he could leave to get her some bread from his car. After Mrs Qui had extracted some sort of promise from Hoai that he would assist Ngoc to repay the debt, he left the house.
16. At that stage Mrs Qui and Phuong asked Ngoc to come back into the living room where, according to Ngoc's evidence, they pushed her into an armchair, still holding the knife up to her and continuing to ask her to sign an acknowledgment of the debt. She alleges that while her husband was still outside and while she was in that position, Mrs Qui said, "If you are not going to sign or anything probably I get a string to tie you up and then I will ring the police and tell them that you break into our house to taking like money or jewellery".
17. In the meantime, Hoai had, with the assistance of a neighbour, summoned the police. Ngoc heard a knock at the door and when it was opened saw her husband and a policeman, whereupon she quickly ran out of the door. Outside she had a brief conversation with the policeman, a Constable Philps. Hoai's evidence was broadly consistent with that given by Ngoc. He remembered Ngoc joining Mrs Qui and Phuong in the kitchen while he remained in the sitting room, and then hearing raised voices, including the voice of Mrs Qui demanding to know what Ngoc was proposing to do about the money allegedly owed to Phuong. According to Hoai, he heard Mrs Qui ask Tai to lock the door, which Tai did, following which Hoai went into the kitchen, followed by Hen and Tai.
18. In his evidence Hoai spoke of being shown a piece of paper on which some figures were written; of Phuong asserting the loan; of Nga being summonsed to the house and joining in; of Phuong leaving to bring Mi back, of Mi then taking part in the discussion as well; and of Mrs Qui producing the knife. To use Hoai's expression in evidence, she put it "on my wife's neck".
19. He spoke of threats by Mrs Qui while she was holding the knife up to Ngoc, to the effect that if she did not agree to pay back the moneys "she would cut my wife's face to make my wife become ugly so that I would leave her".
20. Hoai explained in evidence that he then became scared and that "I thought that those people would never let me to take my wife out", but that they agreed to him getting some bread to feed his child. Before he left he remembers Tai threatening that if Ngoc would not sign "there would be blood spilt".
21. The other two witnesses for the Crown were Constable Philps, together with Constable Eckert, who had accompanied Philps to the house in the morning in question.
22. Philps gave evidence that he arrived at the premises at 10.55 am to find Hoai outside the house holding his baby daughter. Hoai appeared "very excited, his voice was a high pitch, not normal, speaking very quickly, and he appeared very agitated". After Constable Philps knocked on the door it was opened and he saw near the door four people whom he thought were Vietnamese, and a woman who turned out to be Ngoc behind them. As soon as the door was opened, Ngoc moved quickly through what he described as the "crowd of people" towards him and out into the yard. He said that: "She pushed through, she rushed through as if she was rushing to get out."
23. He said that she also appeared to be "agitated and upset and spoke very quickly".
24. Philps took down what he described as a short incident report. After giving to him a brief account of what had happened, Ngoc signed a form which was a standard form used by the police when an alleged victim requests that no police action be taken in relation to the matter.
25. He said that he saw on her forehead between Ngoc's eyes a small red mark about the size of the end of a finger.
26. After dealing with Ngoc, Philps entered the house. He said that he "briefly walked into the house" because he "didn't fully understand what was told to me by Mr Nguyen and I went in to look to make sure there was no-one else there who wanted to get out". Because of Ngoc's request that there be no further police action, he did not take the investigation any further or interview any other people.
27. Philps heard nothing further about the matter until 1 May 1993 when Ngoc and Hoai saw him at the police station when he took statements which he wrote up. It was open on the evidence to conclude that the change of heart on the part of Ngoc and her husband as to police action was precipitated by the institution of civil proceedings by Phuong against Ngoc with respect to the alleged debt.
28. Later in May 1993, Philps interviewed Mrs Qui. A transcript of the video recording of the interview was tendered at the trial. In the course of the interview, Mrs Qui admitted the presence of Ngoc and her husband at the house on the morning in question, but denied that there were any assaults or threats, or that there was any detention of Ngoc. She answered many of the questions by referring Philps to her solicitor. There was no evidence of any approach by the police to the solicitor, or of any statements given to the police by the other two accused.
29. The evidence given by Constable Eckert confirmed what Constable Philps had said as to their attendance at the premises in question on 5 January 1993 and as to the emergence from the house of Ngoc after Philps had knocked on the door.
30. The three accused all gave evidence in their own defence. As well, Mi, Lam, Nga, Huynh, Hen and Trinh gave evidence.
31. The accused admitted in their evidence that Ngoc and Hoai had come to the house early on the morning in question and left after the police arrived.
32. It was common ground that there was an extended discussion in the kitchen concerning the money alleged to be owing, and that during the course of that discussion Mrs Qui raised her voice.
33. Much of the evidence called by the accused dealt with the existence and extent of the alleged debt owing to Phuong. The latter gave evidence of dates upon which she had advanced various sums between March 1991 and March 1992 totalling $19,000.
34. Phuong and her mother admitted that after Ngoc and Hoai arrived they drew Ngoc into the kitchen, leaving Hoai in the sitting room. It appears that Tai was in bed asleep when Ngoc and Hoai arrived but that he got up soon afterwards. It was common ground as between the defence evidence and prosecution case that Tai and Hoai joined the group in the kitchen, where a discussion went on with all of them being present.
35. The accused denied that there was any violence or threats, or that Ngoc was detained. Phuong's evidence was that after Tai joined the group in the kitchen he said: "If you don't repay money to my sister I would report to the police".
36. She agreed that it was Tai who rang up Nga and Lam. Although Tai had denied knowing why it was that Ngoc and Hoai were in the house that morning, he admitted that while he was in the sitting room with Hoai he heard his mother speaking very loudly in the kitchen saying: "You owe money from my daughter. Why don't you pay her?"
37. He agreed that he then went to the kitchen with Hoai and that he there joined in the conversation with the others. He agreed that he had said to Ngoc: "You owe my sister money. You have to pay her back otherwise I will use the telephone to ring up the police and ask them to come to sort it out."
38. He denied rolling up his sleeves and saying anything about spilling blood, and denied locking the door of the house or being a party to the detention of Ngoc in the house. Mrs Qui admitted speaking in a loud voice to Ngoc and demanding to know why she did not pay back the debt to her daughter. She denied threatening Ngoc with a knife or threatening to cut her face, and denied saying anything which might be interpreted to mean that neither Ngoc nor Hoai could leave the house. She denied striking Ngoc on her forehead.
39. Mi denied seeing anyone hold a knife to Ngoc's neck or throat, did not see anyone strike Ngoc on her forehead, and did not hear anyone say to Ngoc that she could not leave the house.
40. In the course of cross examination she did say, however, that Mrs Qui at one stage took hold of a knife which she banged on the kitchen table.
41. Mrs Shaw, who appeared for the appellant Phuong, delivered a substantial argument on all grounds of appeal. Mr Kourakis for the appellant Tai and Mr Boucaut for the appellant Mrs Qui adopted the relevant parts of Mrs Shaw's submissions, while adding brief submissions of their own.
42. The principal grounds argued complain that the learned trial Judge in various ways failed to distinguish between the separate cases of each of the appellants. I will deal with those grounds first. They are:
2. That the Learned Judge failed to direct the jury to
consider the case against each accused separately and
failed to advise the jury as to the evidence which was
relevant to the case against each accused.
4. That the Learned Judge erred in failing to
adequately direct the jury as to the doctrine of common
purpose and its application to the facts in the present
case in respect of each accused.
5. That the learned Judge failed to adequately direct
the jury as to the elements of the offence of false
imprisonment and failed to identify adequately for the
jury the issues in respect of the separate accused.
43. In the course of his opening, Mr Whittle for the Crown made it plain to the jury that the Crown case was presented on the basis of what he described as a "joint enterprise", referring to a "plan or understanding to commit a criminal offence". He returned to the same theme in his closing address. Although during the course of opening he mentioned that the jury were to consider the case against each accused separately, it is plain that the Crown case was presented on the footing that there was an understanding between the accused to detain Ngoc in the house, if necessary by threats and assaults, for the purpose of persuading her to acknowledge the alleged debt due to Phuong.
44. The defence case was presented throughout, both in evidence and in defence counsel's closing address on the footing that there was no detaining of Ngoc against her will, that nothing untoward had occurred in the house, and that no assaults occurred.
45. Although counsel for the appellants went through the evidence of each of them in the course of his closing address, he did not suggest to the jury that it was a case where they should distinguish between the guilt or innocence of each of the appellants, but rather that they should all be acquitted.
46. In his summing up, the learned trial Judge reminded the jury that:
"... the Crown has relied upon what you have been told
is a joint enterprise, a common purpose. That is, that
these three persons had a common purpose in mind when
this offence was committed ..."
47. He went on to say:
"... if you come to the conclusion that they were
acting in concert in a joint enterprise, that is, with a
common purpose, that is, they agreed to do what they did
do, the three of them, and of course you can have an
agreement without any writing, ladies and gentlemen,
that would be a tacit agreement. As the prosecutor
said, a wink is as good as a nod .... You have to look
at the circumstances and see whether those people were
acting in concert, and if you take that view, ladies and
gentlemen, then the law is that if two or more persons
agree to carry out some unlawful enterprise then, for so
long as there common purpose lasts, each is responsible
not only for his own actions but also for the actions of
the others in the pursuit of their common objective."
48. After giving an example of a bank robbery committed by persons acting in concert, he went on to say:
"... you will decide whether they acted in concert;
whether they had a common purpose, whether they had
tacitly agreed that these two people, I mean Mrs Ngoc
and her husband Tong, were to be kept in the house and
threatened in order to get them to acknowledge that she,
Ngoc, owed money to Tong (Phuong)."
49. He went on in the same vein:
"... that the three of them were there waiting to put
their plan into action when Ngoc and her husband Tong
arrived, and the plan being to get them to repay the
loan which they alleged she had obtained from Phuong.
You will ask yourself does it look as if this was a sort
of random thing by each one doing his own thing or her
thing, or does it look more like some sort of organised
get together? .... The Crown alleges that these people
were acting in a common purpose, and that means that
they were all equally guilty, if you so find that to be
the case."
50. Later in his address he said:
"You should consider the case for each accused, the
role, and that has all been put to you. There has been
no holding back. They were all present in the room,
they were all taking part in whatever was happening.
There is no denial of that. It was a family affair and
everyone considered himself entitled to be present and
to have a say. And I suppose that cuts both ways,
ladies and gentlemen. If what they were doing was
lawful at all times and if what they were doing was not
lawful, it seems to me that everybody was taking part in
whatever was going on."
51. During the course of the summing up, apart from the passages to which I have referred, the learned trial Judge put to the jury that they were either to convict or acquit all three. At no stage did he put the possibility to the jury that they might convict one or more but not all of the accused.
52. It must be accepted that it is the duty of a trial Judge in a case where there is more than one accused, to separate out for the jury the evidence with respect to each accused and to explain to the jury that they have a right to return a separate verdict with respect to each accused, a verdict which may differ as between them. As it was put by the Court of Criminal Appeal of the Supreme Court of New South Wales in R v Towle and Ors (1955) 72 NSWR 338 (Street CJ, Roper CJ in Eq and Herron J) at 340:
"Where more than one are being tried together, except in
unusual cases, it is the clear duty of the trial judge
to separate for the jury's consideration the evidence
properly relevant and material in the case of each, and
to present the case made against each of the accused
separately. The jury should be specifically told of the
evidence which they may consider against each individual
accused, together with appropriate directions as to the
legal principles involved. In this connection it is
insufficient to rest such a direction upon the formula
that each case must be considered separately, without
further explanation. To this extent we are of opinion
that the summing-up was defective by reason of the
omission to give the jury such directions as would
enable them to consider only the evidence admissible
against each of the accused as if they had been tried
separately."
53. That case involved a charge of rape against four youths. They each advanced the common defence that the prosecutrix had consented. The principle point argued on appeal was that there was a failure by the trial Judge to warn the jury that the separate statements given by each of the accused to the police were not evidence against any accused other than the author.
54. Although of the view that the summing up was defective, the Court held that there was no miscarriage of justice, and it declined to interfere with the conviction.
55. In reaching that view, the Court was clearly influenced by the fact that the four statements in question were consistent with one anothers, and that the defence of none of the accused detracted from the defence of any of the others. After remarking on the fact that the case was different from cases where a co-accused may seek to blame the other accused, the Court observed:
"In the present case, however, the indisputable fact was
that all four prisoners were in company throughout the
events of the night of 6th and early morning of 7th
March. They were companions and were clearly associated
as a quartet in the events that happened. All were
defended by the same counsel, and their cases were heard
together without objection. The statement in writing of
each was adopted by him at the trial. Each statement
assists the defence of the others to a marked extent,
particularly on the question of consent as to which all
four statements are consistent one with the other.
Indeed, there is a pattern relating to consent to be
seen in each. No one blames another."
56. I would adopt a similar process of reasoning in this case. While it must be accepted that there was an error on the part of the learned trial Judge in failing clearly to explain that the members of the jury should consider the guilt or innocence of each accused separately and how they might go about that, his failure to do so did not result in a miscarriage of justice.
57. As in Towle, the three accused in this case were represented by one counsel. The defence was common to all three. All three denied that any threats or assaults were made, or that Ngoc was detained against her will.
58. It is true, as Mrs Shaw points out, that the evidence discloses that all three accused were not present together in the house during the whole of the time that Ngoc and her husband were there. In particular, it seems clear enough that Tai was awakened from his sleep first to join Hoai in the sitting room and later all of the others in the kitchen. True it is also that at some stage Phuong went off to fetch Mi.
59. But the prosecution case was that all three accused were present in the kitchen, together with Hoai when the knife was put up against Ngoc's throat, and that Tai joined in the proceedings in that he rang Nga to ask her to come, and that he later made threats to Ngoc. Of course, if all three of the accused participated in the making of threats or in assaulting Ngoc, it was open for the jury to be satisfied that they were acting with a common purpose, even if they were not together all of the time.
60. But in any event, the defence was not put on the basis that one or other of the accused should be acquitted on the footing that if any threats or detention or both occurred, he or she was not present and could not safely be implicated. It was common to the case of all the accused that they were together in the kitchen when a heated discussion took place as to the alleged debt. The defence was that the discussion was not accompanied by threats. There was only one body of evidence relating to what occurred in the kitchen, and on Ngoc's evidence, subsequently in the sitting room. Given the nature of Mrs Qui's statement to the police, this was not a case where the jury were called upon to consider separate bodies of evidence as against each of the accused. This line of argument is weaker in this case than in Towle (supra) and should be rejected. There was no miscarriage of justice in that the directions given were, in the context of the trial, adequate to disclose the basic responsibility of identifying and communicating to the jury what the real issue was; Holland v R (1993) 117 ALR 193 per Mason CJ, Brennan, Deane and Toohey JJ at 201.
61. Mrs Shaw also argued that the summing up failed adequately to identify the specific conduct of any or all of the accused which was said to amount to the unlawful detention. She said that there was no proper direction explaining whether or not the confinement was said to result from the locking of the door or the knife being held at the throat for a period of time, from Ngoc being held on the arm or shoulder by Phuong, or from all or any of those acts.
62. It is true that there might have been some vacillation in the manner in which the case for the Crown was presented. But it seems to me that absent any particulars being sought confining the Crown to one or another particular allegation, it was open for the trial Judge to invite the jury to consider whether, on the evidence, there had been an unlawful detention, leaving it to the jury to determine whether this resulted from the locking of the door, if they were not prepared to accept the evidence as to that, from the knife being held at the throat of Ngoc at a time when she was being held by the arm by Phuong. The jury were told by the learned trial Judge during the course of his summing up that it was not critical for them to find necessarily that the detention was as alleged in the information "for about three hours". Likewise, I do not think that it was critical that they should necessarily have been instructed that in order to find the accused guilty they must find that the restraint operated specifically by reason of one or other cause. If the jury was satisfied that the threats and assaults had occurred, there would unquestionably have been an unlawful imprisonment, even if the evidence failed to establish beyond reasonable doubt that the door was locked. The direction that the jury should convict if they were prepared to accept, beyond reasonable doubt, the account of what occurred given by Ngoc and her husband was clearly adequate and sufficient in the circumstances of the case. The central issue at the trial was whether or not Ngoc's account of the matter, given the denials of the appellants, could be accepted beyond reasonable doubt. Resolution of that issue was clearly decisive of the guilt or innocence of the appellants.
63. As to the complaint that there was a failure to give adequate directions regarding the elements of the offence of false imprisonment, coupled with a failure to identify the issues as to those elements in respect of each accused separately, in my opinion, this ground of appeal has not been made out.
64. As to the elements of the offences, the learned trial Judge made the following observations during the course of his summing up:
"Now, ladies and gentlemen, the elements of the offence
are, and you must be satisfied of each of these beyond
reasonable doubt, one, that they detained Ngoc against
her will, and that they did so unlawfully, that is,
without lawful excuse. So what the Crown must prove
beyond reasonable doubt is, one, that these three people
detained the woman Ngoc, that is, they kept her against
her will, and without lawful excuse. Those things must
be proved beyond reasonable doubt. Now, ladies and
gentlemen, the Crown has to prove, in effect, a
negative. The accused don't have to prove anything.
The Crown must prove the detaining by use of force or
threats, and it needn't be any assault, ladies and
gentlemen. If they set up a set of circumstances which
results in the woman believing that if she tries to
escape, she'll come to some harm, then ladies and
gentlemen, that's a detainment. But the Crown must go
further and prove that the detaining was unlawful. If a
policeman says to you, 'Look, I suspect you've committed
an offence. You are under arrest', now if you try to
get away then he will grab you and take you to the
nearest lock-up, ladies and gentlemen. He's detaining
you, but, of course, he's not unlawfully imprisoning
you, because he has a suspicion, and as a police officer
he not only has a right, he has a duty to detain. Well,
ladies and gentlemen, there's been no suggestion here
that any of these three were entitled to detain anybody,
let alone Ngoc. Nobody has suggested it. They haven't
suggested it, nor has their counsel, or anybody else.
So I don't think you will have much difficulty with the
fact that if she was detained, if Ngoc was detained, it
was an unlawful detaining, and therefore a false
imprisonment. And, of course, the accused, all three of
them, say, 'Well, we didn't unlawfully detain, we didn't
imprison, we simply sat down to have a talk about a debt
that was owing by Ngoc to Phuong'. And that is really
the essence of the case for the defence, ladies and
gentlemen."
65. Later, after warning the jury that they were not there to try the merits of the claim made by Phuong that she was owed $19,000 by Ngoc, he went on to say:
"The real issue is, did these three accused detain Ngoc,
and did they do so without her consent? And did they do
it unlawfully, that is, without any lawful excuse or
belief that they were entitled to do it? And there has
been no suggestions that they haven't. The issue here,
ladies and gentlemen, is was she detained? If you find
that she was detained against her will, then, ladies and
gentlemen, you won't have much trouble in coming to the
conclusion that she was unlawfully detained, and you
will have no difficulty, I should think, in saying that
the detention was something that was, of itself,
unlawful. And nobody has suggested that these people,
themselves included, had any authority to detain, and
they said, 'No, in fact we wouldn't do such a thing.
Our whole idea was to have a friendly discussion about
how this money was to be repaid. And it was an
unsuccessful discussion, and the police came along, and
why on earth they were sent for, we don't know'. That's
the position, ladies and gentlemen. So I repeat, and I
urge you not to be confused and spend your time trying
to work out whether this money was owed by Ngoc to
Phuong, or whether Sang's $2,000 was a valid claim or
not, ladies and gentlemen. The question is, was Ngoc
detained by these three people, and was it against her
will, and was it done without any lawful excuse, any
lawful reason?"
66. Mrs Shaw argued that that direction failed to identify satisfactorily the "mental element" which she said was:
"... important in determining the issue of joint
enterprise and in considering the separate cases
presented by the three accused."
67. However, it seems to me that there was an abundance of evidence from which the jury might properly infer that the three accused were associated by a common purpose of threatening Ngoc, and endeavouring to obtain from her a written acknowledgment of the alleged indebtedness to Phuong and to detain her until she did so. It seems to me that that was the essence of the Crown case, and that the explanation of the elements of the offence was adequate to identify the issues relevant to proof of the charge in that context. No real issue was raised as to the mental element. If the jury accepted beyond reasonable doubt the account given by Ngoc and her husband, it would necessarily follow that there had been a detaining of Ngoc against her will; that it was intentional; and that all three appellants willingly participated.
68. In my opinion, the grounds of appeal referred to so far, fail.
3. That the learned trial Judge misdirected the jury as
to the burden of proof The learned trial Judge reminded
the jury on several occasions during his summing up that
the onus was on the Crown to prove all of the elements
of the offence beyond reasonable doubt.
69. For example, he said at an early stage of the summing up:
"In every criminal trial it is not for the accused to
prove his innocence but for the prosecution to prove his
guilt. Every accused person is entitled to be
considered innocent unless and until the evidence
establishes his guilt to your satisfaction. The
prosecution must prove their guilt beyond reasonable
doubt. It is not sufficient for the Crown to establish
a mere suspicion of guilt, or to say that the accused
are probably guilty, but that the accused are guilty,
and guilty beyond reasonable doubt. You do not bring in
a verdict of guilty unless you are satisfied and
convinced beyond reasonable doubt that the accused are
guilty of the charge or charges laid against them. I
will tell you the elements of the charge later, and each
of these elements must be proven beyond reasonable
doubt. If you are not convinced that all of the
elements of the charge have been proven beyond
reasonable doubt then the accused are entitled to an
acquittal on that charge. Ladies and gentlemen, if you,
as reasonable men and women, think that the evidence
that you have heard during this trial is open to some
other reasonable conclusion than the accuseds' guilt,
then they are entitled to a verdict of not guilty."
70. Later he said:
"As I say, you must be satisfied beyond reasonable doubt
of all of those elements that I have told you about and
if you have got a reasonable doubt as to any of them,
then you must acquit the accused."
71. Towards the end of the summing up the learned trial Judge concluded:
"But you must be satisfied beyond reasonable doubt in
the sense that, as I said earlier, there is no other
reasonable possibility that they did not falsely
imprison the victim Ngoc. That is to say, if you think
that the evidence you have heard - the whole of the
evidence that you have heard here, on the whole of the
evidence, if you think that what you have been told by
the accused and their witnesses is reasonably possibly
true - not that it is possibly true, not that it is
true, is it reasonably possible that it is true - and if
you think it is reasonably possible that what you have
heard from the defence and the whole of the evidence
that what they have told you is true, that is that
nothing untoward happened, then, ladies and gentlemen,
you would have to acquit them."
72. As to that last passage, while there could be no fault found with a direction that the jury must acquit if they think that there is a reasonable possibility that what the accused have said was true, the expression "that is, that nothing untoward happened", was, perhaps, unfortunate. It might be suggested that something untoward could have happened, but that the accused were nonetheless not guilty if all the elements necessary for conviction were not present.
73. However, in using that expression, I think that the learned trial Judge was simply saying that if it was reasonably possible that what the accused said had happened did happen, then they should acquit. The expression "that nothing untoward happened" was intended to be no more than an indication of what it was that the accused said occurred happened. Earlier in his summing up the learned trial Judge had said:
"One side says nothing untoward happened, nothing,
everything was peaceful and quiet except for the banging
of the knife on the table by Luu Qui. On the other
hand, you have heard what Ngoc and Tong have said ..."
74. It must be accepted that the learned trial Judge's summing up tended to polarise the issues between acceptance of the Crown case beyond reasonable doubt, or admitting of a possibility that what the accused said happened was true. But in the circumstances of this case, the direction did not lead to error. The jury was told again and again, in various ways, that they were not to convict unless satisfied beyond reasonable doubt of the truth of the evidence of Ngoc and Hoai. That the members of the jury were so satisfied can be the only proper conclusion to be drawn from their verdict.
75. In my opinion, there was no misdirection as to the onus of proof.
76. I turn to the remaining ground of appeal.
1. That the verdict of the jury is unsafe,
unsatisfactory and against the weight of the evidence
77. There was a good deal of common ground in the evidence presented on both sides. The accused all admitted that they were present when what was obviously a heated discussion as to the alleged indebtedness of Ngoc to Phuong was under discussion. That Qui had a knife in her hand at one stage while they were all in the kitchen was conceded by one of the witnesses for the defence. It could not be disputed that the police were eventually called by Hoai, and his evidence that Ngoc then left the house in a hurry and in an agitated state was not challenged. While it is true that the appellants contended that the presence of the red mark on Ngoc's forehead was innocently explained by reference to something which had occurred the night before at the party which she had attended, it was open for the jury to find the presence of that mark to be consistent with the assault by Qui, deposed to by Ngoc. The action of Hoai in summoning the police was consistent with the Crown case that Ngoc was unlawfully detained.
78. Mrs Shaw made some submissions as to various inconsistencies in the evidence, but it does not seem to me that they amounted to anything more than typical jury questions.
79. This ground is not made out. In my opinion, all grounds of appeal fail, save for that relating to the failure by the learned trial Judge to put the cases of the appellants separately to the jury.
80. For the reasons which I have given as to that aspect of the matter, the proviso in s.353(1) of the Criminal Law Consolidation Act should be applied, there being no resultant miscarriage of justice.
81. I would dismiss the appeals.
JUDGE2 KING CJ I agree that this appeal should be dismissed for the reasons given by Justice Perry.
JUDGE3 PRIOR J I agree with the reasons published by Justice Perry. The appeal should be dismissed.
Qui Thi Lou v R Phuong Thanh Huynh v R Tai Van Huynh v R Nos. SCCRM 94/201, 94/202 and 94/203 Judgment No. 4684 Number of Pages 17 Criminal Law and Procedure Appeal against Conviction for Unlawful Imprisonment [1994] SASC 4684
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