R v Chien Wen Lu
[2002] NSWCCA 114
•4 April 2002
NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: R v Chien Wen Lu [2002] NSWCCA 114
FILE NUMBER(S):
60619/2000
HEARING DATE(S): 1 June 2001
JUDGMENT DATE: 04/04/2002
PARTIES:
Regina v Chien Wen Lu
JUDGMENT OF: Dowd J Smart AJ Einfeld AJ
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 99/11/0472
LOWER COURT JUDICIAL OFFICER: Latham DCJ
COUNSEL:
(A) W P Brewer
(R) M C Grogan
SOLICITORS:
(A) Gregory J Goold
(R) S E O'Connor
CATCHWORDS:
Verdict reasonable and supported by evidence
LEGISLATION CITED:
Criminal Appeal Act 1912
DECISION:
Extend the time within which Chien Wen Lu (aka Calvin Lu) may appeal. Appeal against conviction dismissed.
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60619/00
DOWD J
SMART AJ
EINFELD AJ
Thursday, 4 April 2002
REGINAV CHIEN WEN LU (aka CALVIN LU)
JUDGMENT
DOWD J: I have read the judgment in draft form of Smart AJ. I agree with the orders proposed and His Honour’s reasons.
As to the ground of appeal, that Her Honour, the Trial Judge erred in not giving a verdict by direction, I am of the view, that as Smart AJ has pointed out that the elements of the offence had been made out through the evidence of the complainant. The supporting evidence of Melanie Fang, although it was only able to partially corroborate the complainant’s evidence, that corroboration was significant.
The appellant, in submitting that the verdict was unreasonable and not supported by the evidence placed considerable reliance on the complainant’s inability to explain the difficulty of reconciling his recollection of events with the lift operation records. This was the subject of extensive cross-examination of the complainant and was heightened as an issue by Her Honour’s reference to that issue in the Prasad direction that she gave.
Her Honour made it perfectly clear that the Crown case required the jury to accept the complainant as to the elements of the offence before they could convict.
The issue of the lift records and the complainant’s recollection was clearly a matter for the jury, who could not have been in any doubt as to what was required of them. I consider that this ground was not made out.
SMART AJ: Chien Wen Lu seeks an extension of time within which to appeal against his conviction of robbery in company, on 21 July 2000 after a 16 day trial, and to appeal. On 2 August 2000 he was sentenced to imprisonment for one year to commence on 2 August 2000 suspended upon his entering into a good behaviour bond.
The application for an extension of time and the Notice of Appeal were filed in the registry on 14 September 2000. Section 10 of the Criminal Appeal Act 1912 requires a notice of appeal to be filed within 28 days. Mr Lu has given these reasons for the delay:
(a)he sought fresh representation by a solicitor
(b)he is a national of Taiwan and had to return to Taiwan to discuss the matter with his parents, particularly with his father with whom he works
(c)further time was expended in ensuring the necessary arrangements were in place to ensure the appeal would be properly funded
As the delay was of short duration, the reasons for the delay provide a reasonable explanation and the grounds of appeal raise issues of substance, the extension of time should be granted. It was not opposed.
Mr Lu, the appellant, stood trial with his co-accused Thanh Thai Nguyen (known as Sam) and Shu Ming Chang (known as Andy). They were charged with robbery in company and demand money with menaces. They were convicted on both counts.
The appellant challenges his conviction on the basis that it was unreasonable having regard to the evidence, that the jury’s verdict was unsafe and unsatisfactory and that the judge erred in failing to direct a verdict of acquittal at the conclusion of the Crown case. These grounds of appeal necessitate a careful examination of the evidence.
The Crown alleges that on 4 March 1998 the complainant, a male student aged 22 from Taiwan, returned to the Miramar Apartments, Pitt Street, Sydney about 1 to 2 pm. It is a large multi-storey block of apartments with car parking in the basement levels. It also contains some offices served by one lift (Lift 1). There is a large lobby at ground level and a block of six lifts (Lifts 2 to 7) which service the apartments and the car parking floors. The victim lived in unit 72 on level 15 with some friends. He was issued with a security (or swipe) card which allowed him to go to his unit and any of the car park levels. No card was required to travel by lift from any of the floors down to the lobby on the ground floor.
The complainant said that upon entering the lobby he went to the area of the six lifts which serviced the apartments and pressed the call button. On the doors of a lift opening he entered the lift and used his swipe card. Just as he was about to press the button and the lift doors were about to close he saw one hand stop the lift. The appellant came in and said, “Finally you are here”. He grabbed the complainant, held him in a headlock and dragged him out of the lift into the lobby where he saw the two co-accused (Nguyen and Chang) and two girls. He thought that he had been in lift 7 and that the appellant took him into lift 5. The two co-accused and the two girls also entered the lift.
The complainant said that lift 5 went up to the 38th floor and on the way up the three men bashed him, hitting him in his stomach, his back, his legs and on the back of his head with their hands and their legs. The complainant thought that the girls got out at Level 38. As the lift descended from Level 38 to the parking level B2, the three men continued to hit the complainant. He said that on Level B2 the appellant pulled him out of the lift by means of the headlock. The three men hit him in the car park just under the walkway not very far from the lifts. Andy grabbed the complainant’s school bag and took his wallet out of his back pocket and went through them. Andy took both the complainant’s driver’s licences (Taiwan and New South Wales), about $250 in cash and his swipe card. Andy returned the school bag and the wallet to the complainant who was next taken from Level B2 to the 15th floor with Andy using the complainant’s swipe card.
The three accused and the complainant went to the latter’s unit. The appellant knocked on the door of that unit. The complainant’s girl friend Chee Yun Fang (aka Melody Fang) opened the door. The co-accused entered the unit with the complainant. He told her to go into the room (a bedroom) and lock the door. As was customary, he and the co-accused took their shoes off and entered the living room. The complainant said that he was seated on the floor and the co-accused on the sofa and that the co-accused spoke to him.
Andy said, ”You are going to join our group otherwise you compensate us.” Andy asked the complainant to pay $5400 for knowing their faces and $3000-something for entertainment. Andy said the total was $8700. When the complainant said that he did not have as much money as that Andy replied that as they were good friends he would give the complainant a discount. Andy said, “Sign me a paper for $4000.” Sam asked “Do you have a pen or paper?” The complainant did not want to sign and did not do or say anything. The appellant said, “You are going to come quickly and sign it, get the pen and paper.” About this time Andy said, “I got your Taiwanese driver’s licence. Do you want me to go to Taiwan and talk to your mum?” Sam said, “We can send the brothers back here from Hong Kong to his parents in Taiwan.” Sam and Andy spoke in loud voices.
The complainant got pen and paper. Sam and Andy instructed the complainant to write whatever they said on the paper. He did so in the Chinese language. The complainant said that he became very scared and thought that the only thing he could do was sign the paper. The document was not tendered against the appellant.
About that point of time a man called Chang Yat Shing and known as Eaton came to the unit. There had been previous confrontations between Eaton and the complainant earlier in 1998. Referring to their last confrontation,Eaton said, “You caused me injury (and I had to go) to the hospital and the blood comes out so you have to give me the money for medicine.” The complainant replied, “It’s you [who] hit me, I didn’t hit you.” Sam, Andy and Eaton went to another part of the unit and whispered among themselves. Eaton told the complainant he had to sign a paper for him. At first the complainant declined. Eaton said, ”You stand there, and let me bash you until you go to hospital then you don’t need to sign me the paper document.” The complainant said that he still did nothing and that Andy, the appellant and Eaton conferred near where the shoes had been left and came back into the living room. The complainant said that he was so scared he wrote what they said on a paper in Chinese and signed it. The document was not tendered against the appellant.
The complainant said that at no time did he borrow $4000 from Andy, nor did he owe him or anyone associated with him any money. The complainant said that when the four men left they took the signed papers, the driving licences and the cash. He said that they were in his unit for forty minutes to an hour. Throughout the period Melody Fang remained in the bedroom.
The complainant stated that on the following day he reported to the City Central Police Station that he had lost his wallet containing some fly-by cards, driver's licences and cash. When asked why he reported that the wallet was lost, he said:
“Once I don’t know what to do, the only thing I can think of is to report the licence lost first because I don’t know what they going to do with my licence.”
About three weeks after that he had some telephone calls mainly from Andy. The complainant estimated that Andy telephoned him more than ten times demanding money. The amounts demanded escalated. Not long before the complainant went to the police Andy demanded $120,000. The complainant said that at the end of May 1998 he went to the police again and saw Det Snr Cons L Arthurs. After this he spoke to Andy and Eaton a number of times on the telephone. As this material and the various telephone conversations were not admitted against the appellant I shall not refer to them further.
Prior to the death of his father in about May 1996 the complainant shared a townhouse with a student friend Ming Kang Chang and his brother, Andy. During that time Andy asked the complainant to join a group which could offer him protection and help. The complainant declined. After returning from his father’s funeral the complainant continued to live with the Chang brothers. Ming Kang Chang introduced him to Sam Nguyen. Andy told the complainant that Sam was the leader of the gang known as Sun Yee Yon. A couple of months after his return from Taiwan the complainant moved out of the townhouse. He asserted that he did not owe any money for rent and expenses. He said that he moved out because he was scared of Andy Chang again asking him to join the gang. He did not stay in touch with the Chang brothers. He moved to Sussex Street during 1997 and then into the Miramar Apartments. He met Melody Fang in 1998. She lived in another unit in Miramar Apartments. He met Eaton, a friend of Andy, in January 1998. Eaton assaulted him twice in the streets around Chinatown. The attacks were unprovoked.
In cross-examination it was pointed out to the complainant that the lift computer records did not support his allegation that he was taken from the lobby to the 38th floor, then to floor B2 and then to the 15th floor and that he was forced to travel in lift 5. The complainant insisted that lift numbered 5 must have been activated using some other card (or some other method) to travel to floor 38 as his card was still in his pocket. Because of the way he was being held by the appellant he was unable to see who swiped the card. The complainant could not explain fully the sequence of swipes (or entries) on the records produced to him but asserted that he was telling the truth. The records were not those of the complainant nor adopted by him. He said that sometimes the swipe or pressing of a button in the lift did not register. Andy had taken the complainant's swipe card in the basement and he did not know what they did from that point.
From the photographs it appears that lifts 2 and 3 service Levels 22-38 and all car park levels, lift 4 is the goods lift and services all levels, lift 5 services Levels 8-38 and all car park levels and lifts 6 and 7 service Levels 8-21 and all car park levels. Lift 6 adjoins lifts 5 and 7. Lifts 2, 3, and 4 are directly opposite.
The computer records of 4 March 1998 show that at 13.57.45 hours the complainant’s swipe card was used in lift 6, at 14.01.34 it was used in lift 7, at 14.01.59 in lift 6, at 14.02.06 in lift 6 and at 14.02.25 in lift 6. Thus the card was used six times within five minutes. This and the change of lifts suggests that something unusual was happening. If the complainant was transferred by the group into lift 7 and not lift 6 and he was taken to Level 21 at the top of the medium level rise the divergence between the complainant’s recollection and the records would not be so great. The complainant thought that he was only in the lobby for a minute or less before being pushed into another lift.
The jury may well have taken the view that it would be easy to make a mistake as to lift levels when you are being set upon by a group, assaulted and robbed. They could also have taken the view that the records suggested that something unusual was happening.
The complainant agreed in cross-examination that he had lied when he told the police that he had lost his wallet. He said that he lied so as to ensure that the co-accused could not use the licence for something else. He did not tell the truth to the police because he was so scared. He was afraid that the gang were going to kill him. He thought they might bribe the police because they had previously told him that that was what they could do.
Melody Fang said that she was alone in the complainant’s unit on 4 March 1998 when she heard someone knocking on the door and opened it. She saw him and three men. They entered. The complainant asked her to go into his room very quickly and looked very scared. She went into his room and locked the door. She said that she heard a man say, “Do you want to sign or do you want to be bashed up.” She also heard a man say, “Eaton’s also here.” She said that at one stage someone tried to open the door to the room in which she was. She remained in the room for about 30-40 minutes and came out when the complainant asked her to come out. He looked “a big upset and all scared”. The three men had left.
Melody Fang was aged 16 in March 1998. She had come from Taiwan and spoke only some English. She gave her evidence through an interpreter. She agreed in cross-examination that she saw no injuries to the complainant and no ripped clothing. She said that she did not telephone the police as she did not know the phone number. She said that she thought about telephoning the police. She agreed that she never heard anyone in a loud voice shouting at the complainant. While she was in the bedroom she made a telephone call to each of two girl friends. She said that she was looking for help; she did not know exactly what help. She was worried something would happen to the complainant. She did not think of asking her two girlfriends how to contact the police. Ms Fang described herself as being “lost” in the situation in which she found herself. Her evidence suggests that she was overwhelmed. That is not surprising given her age and that from her perspective she was in a foreign country.
Debbie Michelle Taylor was the building manager of the Miramar Building from August 1997. She is the person who issues the swipe cards. She requires any person seeking such a card to establish that he or she lives in the building and photo-identification. Upon issue of the swipe card the recipient can travel to all ten car parking levels and the level on which he or she lives, but to no other levels. There is an exception in favour of a limited number of people, for example, staff cleaners, certain selected real estate agents and security officers who have access cards for every level. She was unaware of any incident occurring on 4 March 1998, nor was she told of one by her assistant, Brett who was dismissed the following day. She spent all day at the reception desk in the lobby. If she was absent for a few minutes Brett was at the desk. Ms Taylor said that any trip from one of the residential or parking levels to the lobby was not recorded. There was a monitor on her desk showing what was happening in the lift area. Ms Taylor said that the records do not show what floor you are on when you swipe the card. Nor is there any record of where the lift takes you. It must, of course, be within the limits to which the lift can travel. On any given day 20 to 30 people were detected using cards not issued to them. A market exists for the sale of stolen cards, which are then used to gain unauthorised access to the car park and swimming pool. She detected about two people per day falling into this category. Unrecorded access also occurred as a result of people being "buzzed up" directly by one of the apartment occupants via the building intercom.
At the close of the Crown case counsel for the appellant sought a verdict by direction on the basis that there was no case against him. There was a problem with that application. The cases of Andy and Sam had not closed. They may give evidence incriminating him. In the case of co-accused it is not the practice to entertain applications for a verdict by direction until the evidence of the co-accused and their witnesses has been adduced.
In any event at the close of the Crown case there was a case to go to the jury against the appellant. The complainant had given evidence that the appellant had entered a lift, headlocked him, dragged him out of the lift and bundled him into another lift and held him while the co-accused assaulted and robbed him. The appellant also went with the other two co-accused to the complainant's unit and knocked on the door. On the complainant's evidence they had compelled him to take them there. The inference was open that the three accused were acting in concert. There was the supporting evidence of Melody Fang, that the complainant looked scared when he arrived with them at the unit and scared after they left.
The complainant adhered to his version even after the computer records were put to him. Ms Taylor's evidence pointed up that those records were not conclusive. They were important. It was for the jury to assess whether the complainant's evidence as to being assaulted and robbed was correct and the weight and significance of the computer records. The evidence of the complainant negatived any claim of right on the part of Andy Chang. The application for a verdict by direction was correctly rejected.
Counsel for the appellant also sought a Prasad direction. Counsel for Sam accepted that there was “clearly a prima facie case” in respect of the robbery count. He sought a Prasad direction as to the count of demand money with menaces or as to both counts against Sam. Counsel for Andy also sought a Prasad direction. The Crown Prosecutor did not oppose such a direction.
The judge (T458-9) gave a Prasad direction in which she directed the jury that the Crown had to prove the ingredients of the charges against each accused beyond reasonable doubt and that the accused had to prove nothing. She pointed out that the Crown case depended upon the complainant. She briefly outlined the Crown case and mentioned that the complainant’s version was not supported by the computerised records. She pointed out that the explanation given was:
“… that the accused Mr Chang was merely trying to recover a debt owed to him by the complainant which arose when they shared premises together. The accused Mr Nguyen and Mr Lu were with Mr Chang when he visited the complainant at the Miramar Apartments and they went to his unit to discuss the repayment of the debt. The complainant gave them his driver’s licence as security for the debt. In effect that’s what’s been put through the cross-examination of the complainant.”
The judge pointed out to the jury that the Crown could not succeed unless they accepted the complainant as a witness of truth. She said:
“Now you may if you wish return verdicts of not guilty at any time after the close of the Crown case and before you hear anything further."
She elaborated on that point. The jury retired and a short time later returned and said they wanted to hear more.
All three accused gave evidence. While the whole of the appellant’s evidence is relevant, only parts of the evidence of Andy and Sam need to be mentioned.
The appellant said that he was born on 25 October 1971 in Taiwan where he lived until he came to Australia in September 1996 to learn English. He had previously served in the Taiwanese Army and completed a five year course in mechanical engineering. He worked in his father’s company which manufactures and supplies machinery which makes medical products. While at Waratah Language School in Manly he met Eaton and became friendly with him. The appellant said that he subsequently enrolled in a business management course at Holmes College in Sydney. He and Eaton and a third person shared an apartment in “The Peak” in Quay Street, Sydney. The appellant and Eaton moved to another apartment in the city. The appellant was supported by his father.
The appellant said that on 4 March 1998 he and Eaton went to Market City, Chinatown about lunchtime. They did some window shopping. He received a telephone call on his mobile telephone from Andy asking him and Eaton to join him for lunch. The appellant agreed. Eaton said he had something else to attend to and left. Andy and Sam picked him up in a vehicle and drove to a car park a short distance away which he could not remember. They were going to the Mandarin Club for lunch. After alighting from the car they walked towards the Mandarin Club.
As they were about to walk past the Miramar building Andy suddenly saw someone and called out. They stopped and looked. Andy walked inside followed by the appellant and Sam. The appellant said that Andy and the complainant were talking. The appellant said he did not listen. Andy asked if they could come upstairs with them just for a few minutes and stated that they would then go to lunch together. The appellant said that he, Sam, Andy and the complainant entered the lift and travelled to the 15th floor. The complainant led the way to his unit and knocked on the door. A female opened the door and the four men entered the unit. The complainant told (or asked) them to sit down. The appellant and Sam sat on a sofa. Andy and the complainant were talking about a metre or two away. The appellant did not listen to their conversation. Instead, he talked to Sam and smoked. The appellant suggested to Sam that they should leave because it was time for lunch. Eaton came to the unit and talked to the complainant. Andy said “Let us go to lunch.” Eaton asked them to wait for a few minutes and said he would come with them. Andy, Sam, Eaton and the appellant left the unit. The appellant denied the complainant’s version of events. He denied being a member of a Triad gang either in Australia or Taiwan or being asked to join such a gang.
In cross-examination the appellant said that Eaton advised him that the appellant was involved in the assault upon Eaton in September 1997. The appellant had not heard of an occasion when Eaton assaulted the complainant in Chinatown. The appellant said that he did not hear what went on inside the complainant’s apartment. He did not hear what was said between Andy and the complainant as he was not paying attention. The appellant was not sure whether he heard Sam say anything to the complainant. The appellant said that he saw some documents being written out in the apartment but he did not remember any conversation surrounding the making of the documents. The appellant said he was very distracted by something he had on his mind. Although he had been with Eaton until shortly before he arrived at the Miramar building he was not sure how Eaton got up into the complainant’s apartment. The appellant said that it was just an ordinary conversation between Eaton and the appellant. The appellant did not see Andy with any cash or driving licences. He did not see Andy take anything with him when he left.
Andy Chang was born on 23 February 1978. In January 1996 he came to Sydney from Taiwan where his father conducted a manufacturing business. He first went to Holmes College to improve his English and later attended the Sydney Campus of the Central Queensland University from which he graduated in March 2000. Andy said that one or two days before the complainant moved out of the townhouse, his brother, the complainant and he met and went through the moneys owed by the complainant who agreed that he owed $5295. He said that he would pay it back as soon as possible.
After the complainant moved out Andy saw him at University and raised the question of repayment. The complainant said that he was having some financial difficulty and he would have to pay it back later. Andy told the complainant to be quick and said that after the complainant moved out of the townhouse he raised the question of repayment with him at least ten times in 1996. Andy said that he saw the complainant about two or three times in 1997 and raised the question of payment.
In September 1997 Eaton was attacked and taken to Sydney Hospital. Andy was not present. When the attack occurred he contacted Andy who collected him from hospital and took him to his home. Eaton believed the complainant was responsible for his injuries. Eaton wanted some compensation for his medical expenses from the complainant.
Andy said that he had not seen the complainant in 1998 prior to 4 March 1998. He said that around 2pm on that day he was walking along Pitt Street towards the Mandarin Club for lunch with the appellant and Sam. He was looking for the complainant and saw him walk into the Miramar building. Andy said that he was less than 10 metres away. He followed the complainant into the building. His co-accused also followed. Andy went to the lift area. The complainant was already in the lift. Andy said that he called out “Ivan (the complainant) its me, Andy.” The complainant replied, “Oh I see” and came out of the lift. After some initial friendly conversation Andy said “Ivan, so what about the money you promised to pay me back … can you pay me back now?” The complainant replied “Oh yeah I remember the debt so do you want to go out to a café or we can have a drink and talk slowly.” Andy said that he replied in the negative. He was going to lunch with his friends, so could they just do it quickly.
Andy said that the complainant used his swipe card a number of times but the lift did not work. Eventually they entered a lift, possibly another lift. The complainant used his swipe card a number of times. Ultimately the computer recognised the complainant’s swipe card and the lift travelled to the 15th floor. Andy said that the complainant led them to his unit and knocked on the door which was opened by a lady who went back to the bedrooms. They took off their shoes and the complainant asked them to sit down on the sofa in the living room. Andy said that he sat down next to the complainant and they started their conversation about the money the latter owed. There was an argument about the amount outstanding. Eventually they agreed on $4000. Andy said that the complainant promised to pay that sum to him within two weeks.
Andy stated that he said, “Ivan that’s not enough. I can’t trust you once more by your words. What can you guarantee for me?” The complainant replied, “Okay how about … I write down IOU to you along with agreement to you.” Andy said that the complainant then took pen and paper and wrote out what Andy described as a loan agreement. Andy said that the complainant selected the words and the interest rate of 44 per cent. Andy said that he needed other security as well and asked for the complainant’s passport. The complainant said that he had sent his passport to be renewed. Andy insisted that it be something important. The complainant reluctantly offered two driving licences which Andy accepted.
Andy said that while the loan agreement was being written someone telephoned Eaton or Eaton telephoned someone on a mobile phone. As the agreement was being finished Eaton contacted the unit via the building intercom which the complainant answered. He admitted Eaton to the building and subsequently to the unit. Andy said that Sam and the appellant had moved to their shoes near the door area. He went to the toilet. Eaton and the complainant spoke. Andy said that he did not hear the first part of what they said but he did see the complainant write out a second document. He was not sure who chose the words for the second document as he was putting his shoes on.
Andy said that he took the document signed by the complainant and the two licences. He said that immediately the complainant completed the document and, in front of him, he (Andy) wrote his name in two places on the document. He was not responsible for other writing on the document. Andy denied taking money out of the complainant’s wallet and denied stealing the driving licences.
Andy said that the complainant did not repay him the moneys which he owed. Andy said that on 15 March 1998 he applied for a mobile phone in the complainant’s name and using the complainant’s licence. Andy explained that he did so because he did not have a licence and he wanted a mobile telephone. He did not believe the complainant would pay the moneys due to him and he was very angry with the complainant. Andy said that he obtained a mobile telephone and paid all the bills. On 27 May 1998 he obtained another mobile telephone in the complainant’s name and using his licence. Andy said that the complainant was telephoning his friend Wei who did not want to be involved. Andy wanted to be able to give Wei a new number, He (Andy) did not have a licence, the complainant had not paid him back and he (Andy) was even angrier with the complainant. He obtained a further mobile telephone and paid all the bills.
Andy said that he left the document signed by the complainant at Eaton’s place. Andy said that he believed that the complainant could not pay him back, that he (Andy) lost interest in getting back the money and ceased to care about the document. That is gilding the lily. Andy denied that he put pressure on the complainant to join a gang. Andy said he did not belong to any gang. He denied asking the complainant for money or compensation for not joining or as an entertainment fee.
Andy gave evidence of a series of telephone conversations in March, April and May between him and the applicant as to payment of the amount allegedly due. At one stage Andy said he would contact the complainant’s mother straightaway. Andy said that the complainant raised the possibility of his Uncle Diao acting as a middleman. Andy gave a lot of evidence relating to the charge of demanding money which I shall not summarise.
On about 28 May 1998 Andy telephoned the complainant many times seeking the money which he claimed the latter owed him. Andy pressed to meet the complainant in his unit and said that he wanted to collect $2500 from him and return the loan document and the licences. The complainant was not prepared to meet Andy in his unit but said he would met him outside.
Andy said that he left the loan document and the licences on a table in Eaton’s unit that day. He had not seen them since and did not know what happened to them. He had nothing to do with sending copies of them to the complainant’s mother.
In cross-examination by counsel for the appellant Andy said that when they went to the complainant’s apartment the appellant took no part in the discussions he had with the complainant. The appellant sat on a sofa smoking a cigarette and looking out a window.
In cross-examination by the Crown Andy said that when Eaton came to the complainant’s apartment Eaton was aggressive towards him and angry. In 1997 and 1998 Andy was close to Eaton. The early part of the Crown cross-examination was to the effect that the sum of $5295 was not discussed on 4 March 1998. The cross-examination challenged that the complainant was indebted to Andy and his family. Andy’s evidence as to how it was made up was not convincing. Andy rejected the suggestion that the complainant was avoiding him because of the pressure being put on him to join the gang. Andy could not remember when he first met Sam Nguyen whom he said was 40 years of age. Andy said that he and his brother went rock fishing with Sam and became friendly.
Andy said that in 1997 he “cut out most contact” with the complainant. Andy said that the complainant was avoiding him not because of his requests to join the gang but so he would not have to pay him back.
Andy said that prior to 4 March 1998 Eaton had told him that the complainant had assaulted Eaton at the Triple Eight Bar in September 1997 and had hit him with a bottle.
Andy agreed that when he saw the complainant outside the Miramar Apartments on 4 March 1998 and called out to him, the complainant kept walking and entered the lobby through the door. Andy further agreed that the complainant was walking away from him with his back to him. Andy agreed that he called the complainant by name and that the complainant kept walking, did not turn around and did not acknowledge him. Andy said that the complainant was walking very fast and that he (Andy) followed the complainant. Andy said that when he turned into the lift area he saw that the complainant was already inside a lift. Andy said “I just saw him swipe card and I call ‘Ivan’ and he say ‘Oh, Andy' and then he came out.” Andy said that the complainant was quite happy to see him and that the appellant and Sam were a few steps behind him. Andy said he was happy to see the complainant.
On Andy’s version there was a sudden and remarkable reversal on the complainant’s part. Andy said that the complainant suggested that they go for a cup of coffee and discuss it. Andy said that he did not invite the complainant to join them for lunch at the nearby Mandarin Club because:
“… there’s the problem between the depth, between he and me … he – start to be sound nervous and sound unhappy so I just worry he going to give me some more excuse so I told him no … I going to lunch with my friends I want to sort it out with you quickly…”
Andy said that the complainant then invited him to his unit. Andy said that he explained to Sam and the appellant that he had a matter to sort out with the complainant and asked if they could just come with him and wait for a period. Sam and the appellant agreed and followed Andy. Thus, according to Andy although the complainant had initially tried to avoid him, had wanted to go for a cup of coffee and had become nervous and unhappy, the complainant invited them to his unit. The version of events given by Andy as to the complainant leaving the lift voluntarily and inviting them to his unit is not credible.
According to Andy, the complainant was also agreeable to Sam and the appellant coming to his unit. They all got into a lift and travelled to the 15th floor. Andy said that the complainant led them to his unit. He denied the version of events given by the complainant as to being headlocked, assaulted and robbed and the lift journeys. Andy denied the complainant’s version of what took place in the unit. He denied that he and Sam told the complainant what to write on the piece of paper.
I will not summarise the further cross-examination as to the completion of the document of 4 March 1998 and what occurred in the unit. Andy said that while they were in the unit there was a telephone conversation between Eaton and the appellant. Andy said the complainant answered the intercom and let Eaton into the building. Eaton was subsequently admitted to the unit and he thought that it was the complainant who opened the door. Once inside Eaton shouted at the complainant and demanded compensation.
Andy stated that Eaton said "If you don't want to sign just fight with me once here". Andy said that he was in the toilet while the second document was being written out. Andy said that he never joined in any conversation between Eaton and the complainant. The second document curiously contains a confession by the complainant that on 4 March 1998 he assaulted Eaton. It was plain that this had not occurred.
There was considerable cross-examination of Andy about the events subsequent to 4 March 1998, his attempts to obtain payment and matters relevant to the charge of demanding money with menaces, including the role of Eaton.
Sam Nguyen gave evidence that he was born on 20 October 1956 and first met Andy in early 1996. Thereafter Sam saw Andy once or twice per week. Sam said that he first met the appellant in 1997 but thereafter he did not see him very often. He also knew Eaton. Sam said that Andy and his older brother introduced him to the complainant at their home in Kingsford. Sam said that he, Andy and the appellant were walking along Pitt Street on the Darling Harbour side when Andy walked quickly across Pitt Street and entered the Miramar Apartments. Sam said that he and the appellant followed him. Andy stopped near the lift area and was talking to the complainant. Sam said that Andy came back to him and the appellant. They were standing in the lobby.
Andy told them that the complainant had invited them to go up to his unit and have a drink. Sam said that the four of them went up in the lift to the 15th floor. The complainant led the way to his unit and knocked on the door which was opened by a girl from inside the unit. They sat down on the sofa. Sam said that he was talking to the appellant while Andy spoke to the complainant about something to do with money. After about five minutes the conversation became "a bit rough". Sam said he told them to talk slowly. He then continued to talk with the appellant. Sam said that he asked Andy if they were gong now and Andy said in just a couple of minutes. Sam said that he went to the door and put on his shoes and the appellant did likewise. About that time Andy went into the toilet.
Sam said that about that time the intercom rang and the complainant answered it. A short time later there was a knock on the door, the complainant opened the door, Eaton entered and then he (Sam), the appellant and Andy walked out. They walked to the lift area and summoned a lift. They were joined by Eaton. They got into the lift and left the premises. Sam said that he had never been a member of any gang.
In cross-examination Sam denied that on 4 March 1998 in the complainant's unit Andy asked him if he was going to join the gang led by Sam, that the complainant refused and that Andy told him that he would have to pay compensation for not joining. Sam said that prior to 4 March 1998 Andy never mentioned that the complainant owed him (Andy) money. Sam said that Eaton was a good friend of Andy. Sam denied that he knew somebody who lived in the Miramar building as at 4 March 1998. He agreed that later in March 1998 he was in the unit of one of the students in the building. Sam denied any assault or robbery and the complainant's version of events prior to entry to the unit. He also denied the complainant's version of the conversations and events which took place in the unit. Sam could not remember any telephone conversation in the unit prior to the intercom sounding.
Sam said that he thought that he heard Eaton say words to the effect "You stand there and let me bash you until you go to hospital then you don't need to sign me the paper document." In respect of other parts of the conversation alleged to have taken place in the unit Sam gave the enigmatic reply, "I can't be certain."
The judge made it plain that the credibility of the complainant was a key issue. At SU8-9 she said:
"Let me make it abundantly clear at this point that if you did not accept Mr Chen as a witness of truth then that would be the end of the Crown case on both charges in respect of all three accused. That is because if you reject Mr Chen's evidence as untruthful, then there is no evidence of a robbery in company, and the crown cannot prove that Mr Chang did not believe that there was a lawful debt owed to him by Mr Ivan Chen."
and
"If you accepted him as a witness of truth then you would need to determine if his evidence is, in any event, reliable. For example, do the discrepancies between his account of the lift movements on 4 March, and the lift records themselves, cause you to doubt the reliability of his account of all the events of that day, or can they be explained without affecting the reliability of his evidence of what occurred between himself and the three accused in the lifts, in the basement, and in the flat.
Now as I said, they are all matters for you. Let me just, while I am on the subject of the lift records say this, you will recall that the manager of the Miramar Apartments, Debbie Taylor, gave evidence about the way in which the lifts work in the building, that there are some lifts that do not go to the 38th floor and there are others that do, and she produced some computerised lift records which indicate what the lift movements were in the building on that day. Now you will have those records in the jury room and you can take all the time you want to have a look at them.
That evidence from Ms Taylor was that there were swipe cards that were frequently lent to unauthorised persons or were stolen by other person (sic) other than persons who lived in the building of course, that the lift print out records do not record persons who are buzzed up by the residents from inside the building, that the records themselves do not show on which floor the card is swiped, or to where the lift goes. Now I simply remind you of that evidence because ultimately you will have to resolve the question whether or not those discrepancies, that is between the records themselves and what Mr Ivan Chen says, affect your assessment of the reliability of his evidence, and whether or not they affect your assessment of him as an honest witness."
These were matters of prime importance and crystallised the issues for the jury.
The judge explained to the jury that the Crown alleged that the appellant was a participant in a joint criminal enterprise with Andy and Sam to rob the complainant in the company of each other and that the defence, in broad terms, was that no such enterprise existed and denied that there was any robbery on 4 March 1998.
The judge pointed out that the Crown alleged that the complainant was punched and kicked by all the accused and held by Mr Lu while Mr Chang removed the money and licences from the complainant's wallet which had in turn been removed from his back pocket. As to the defence as to the robbery in company count the judge said:
"The accused Mr Nguyen and Mr Lu say that they were in Mr Chang's company that day because the three of them were about to have lunch at the Mandarin Club next door to the Miramar Apartments. They said that they went along with Mr Chang when he called out to Mr Chen and they simply happened to be there at the time, but there was certainly no robbery and there was certainly no movement from the lobby to the 38th floor and back down to the basement and then up to level 15 in the circumstances as described by Mr Chen."
The judge gave the usual directions as to the effect of the good character of the appellant and she summarised the evidence given by him. She said, amongst other things:
"His evidence was in relation to the events of 4 March that he was there to have lunch with Mr Chang at the Mandarin Club. He actually did not know much about what was going on with Ivan Chen. He gave evidence that they simply went to the 15th floor and into the unit and he was sitting on the sofa and he did not really hear much of the conversation, but he became aware of the fact that there was some discussion about Ivan Chen and money. He says of course that there was nothing at all in the way of an assault upon Ivan Chen on that day.
Now Mr Lu of course only figures in so far as the events of 4 March at the Miramar Apartments are concerned."
The summing-up contained careful directions as to the law and related the law to the facts. It put the appellant's case fairly and fully. It highlighted the critical factual issues. No objection was taken to the summing-up at the trial and none was taken on appeal.
The appellant submitted that the evidence presented against him was insufficient to prove his guilt. It was pointed out that when discussing the Prasad direction the Crown Prosecutor stated that the Crown relied entirely on the complainant and that he would have to concede almost "in a case like this where there's no witness, there's a serious problem with his version and some independent records don't seem to support him on their face compared to his version ...".
It was submitted that the "inconsistency between the complainant's evidence and the records should have led the judge to direct the jury to return a verdict of not guilty." I am unable to agree. The essence of the offence was that the appellant had participated in the robbery in company of the complainant, who gave cogent evidence of it. If he had been placed in a headlock and set upon by three men and attacked he could well make a mistake as to which lift he entered and to which level he was taken, but not be mistaken about the robbery in company. He could also easily be mistaken about exactly when a swipe card was used. There are occasions when a lift may be directed to a particular floor as a result of the use of the intercom. Given the state of the relationship between the complainant and Andy it is highly improbable that the complainant would have left the lift voluntarily and invited the three men to his unit. The evidence of Melody Fang that the complainant looked very scared when she opened the door to the unit is consistent with his version and inconsistent with a voluntary invitation to come to his unit.
The appellant relied on the fact that no evidence was called by the Crown from the persons who were shown on the lift records as having used the cards on that day and that there was no actual evidence of anyone having a card that they were not authorised to use. The judge put this point to the jury. The appellant submitted that the records excluded one possibility adverted to by Ms Taylor, that a card was misused or that a card thought to be missing was used. Misused cards included those lent to unauthorised persons or stolen.
As earlier mentioned Ms Taylor's evidence was to the effect that the lift printout records do not record the persons who are buzzed up (via the intercom) from inside the building. Nor do they show on which floor the card is swiped or to where the lift goes. There were also the problems with the misused or stolen cards. The movements shown on the lift records as a result of the apparent use of the complainant's swipe card were unusual.
It was a matter for the jury how much weight they gave the lift records and how important they thought that they were.
The appellant submitted that the discrepancies in relation to the movement of the lifts arising from a comparison of the oral evidence of the complainant and the lift records ought to have resulted in the jury having a reasonable doubt about the guilt of the accused. I do not agree. I think that the verdict was reasonably supported by the evidence.
I would rely on the factors earlier mentioned for concluding that the judge correctly refused to direct a verdict for the appellant. I would add that the Crown case against the appellant received some support from some of the facts which emerged in Andy's evidence, namely, that the complainant had been avoiding him, that on 4 March 1998 he pursued the complainant calling out his name, that the complainant did not respond but walked quickly into the lift and swiped his card and was about to press the button to close the lift doors and set the lift in motion. In the circumstances it is not easy to contemplate as a reasonable possibility that the complainant voluntarily came out of the lift. The circumstances point to him being manhandled out of the lift. Nor is it reasonably possible for the reasons earlier stated to contemplate that the complainant voluntarily invited the three men up to his unit.
It was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant participated with his co-offenders in the robbery of the complainant. Having read and examined the whole of the evidence I do not have a reasonable doubt as to the appellant's participation in the robbery in company. Nor should the jury have had a doubt.
It was further submitted that there was no basis on which the jury could have come to a conclusion one way or another as to whether the appellant had a genuine belief that there was a legal right to take the property in question and, accordingly, the jury should have acquitted the appellant on the basis that they could not have been satisfied of his guilt beyond reasonable doubt.
Andy maintained that the complainant owed him $5295. That was vigorously disputed by the complainant.
The judge explained the position to the jury thus at SU28-29:
"Now in this case the accused Mr Chang has claimed that he had a legal right to the property, that is to the money. He claims that Ivan Chen owed him approximately $5000 from the period when they shared rented premises with the accused's brother Minh Chang. You will recall that Mr Chang and his brother gave evidence of outstanding rent and other amounts relating to water bills, damage to furniture and a car mirror. Mr Chang's evidence was that in an attempt to recover this money he made various arrangements with Ivan Chen which Ivan Chen did not meet. Ultimately Mr Chang said, he agreed with Ivan Chen that if $4000 was paid within two weeks of 4 March 1998 he would regard the debt as satisfied.
The two licences he said were voluntarily surrendered by Ivan Chen as security for that debt and in effect the accused Mr Nguyen and Mr Lu also rely upon this claim of right because they were in Mr Chang's company on that day and they were each made aware of the debt which Mr Chang said was owed to him by Ivan Chen. They said that they were simply witnesses to the transaction between Mr Chang and Mr Chen and accordingly that they did not rob Ivan Chen of anything but I remind you the accounts of the events of 4 March given by Mr Chen and by each of the accused in their evidence are diametrically opposed, I mean it is certainly not conceded by any of them that they ever struck Ivan Chen or went to the basement or went to the thirty-eighth floor.
Now it is important that you realise that none of the accused have to prove that such a claim of right existed, the onus rests on the Crown to prove beyond reasonable doubt that the accused did not believe that a legal right existed. If you are satisfied that the accused did not genuinely believe that a legal right existed then you are entitled to find that this element has been made out. If however you are not satisfied that the accused did not genuinely believe that a legal right existed then this element of the offence of robbery has not been made out and the accused would have to be acquitted of this charge.
Now essentially that question turns on whether or not you accept the evidence of Ivan Chen that he did not owe any money to Mr Chang or to any of the other accused."
At SU 30-31 she said:
"Now let me turn to the fifth element which is that the property must have been taken with the intention of permanently depriving the other person of it. Now again if you accept the evidence of Ivan Chen that there was no basis upon which the accused were entitled to take the money and his licences then it follows that the money and the licences were stolen from him; that is that the accused intended to keep the money and the licences when they were not entitled to them.
Now even though the accused may have an intention to permanently deprive the owner of the property, that is even though the accused may have had the intention to take the money and keep it they will not have an intention to steal it if they believe that there is a bona fide claim of right to take the property and so again I remind you that in this trial the accused Mr Chang has said that there was such a claim and that he took the licences as security for the debt.
I remind you of what I have already said on the subject of the claim of right. That is, it is for the Crown to prove beyond reasonable doubt that the accused did not genuinely believe that Mr Chang was entitled to the payment of money by Ivan Chen. If you were to be left in some doubt about this aspect of the matter you would have a duty to acquit the accused of this charge."
The judge dealt with the issue of the claim of right comprehensively. If the jury accepted that the complainant was a witness of substantial truth the claim of right was without foundation and no honest belief in it existed.
This is a case in which the complainant was pursued by three men into the building in which he lived and confronted by them. It is hard to accept that he would have voluntarily handed over his driver's licences. He needed them to be able to drive legally. The view was well open on the evidence that what the co-accused did had all the marks of a standover operation. It would be surprising if any other view were taken. Andy was well aware of the value of having the licences to obtain goods and credit as his subsequent applications for mobile telephones using the licences showed. The appellant was at all times present on 4 March 1998 ready to assist Andy and did so. The jury were entitled to take the view that what was involved on 4 March 1998 was an illicit attempt to obtain money and benefits from the complainant to which Chang was not entitled and to which he knew he was not entitled.
The jury were entitled to conclude that the appellant did not have a genuine belief that there was a legal right to take the property in question. I reject the submission to the contrary.
I return to the submission that the verdict was unreasonable and not supported by the evidence and the prior shorthand description of a verdict being unsafe or unsatisfactory. In Jones v The Queen (1997) 191 CLR 439 this passage appears at 450-451 in the joint judgment of Gaudron, McHugh and Gummow JJ:
"In M, Mason CJ, Deane, Dawson and Toohey JJ said that the test for an unsafe or unsatisfactory verdict was whether the court thought that, upon the whole of the evidence, it was 'open to the jury' to be satisfied beyond reasonable doubt that the accused was guilty. The majority emphasised, however, that it was not the function of the court to answer that question merely by examining the transcript of evidence and the exhibits. Their Honours said that:
'in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.'
The majority judges explained the application of the test as follows:
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice has occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." (Citations omitted)
That test and approach must be applied in the present case. There is the subsequent decision of Gipp v The Queen (1998) 194 CLR 106 at 114, 123, 150 162, 164 applying M. See also Fleming v The Queen(1998) 197 CLR 250 at 255-256; Giam (1999 104 A Crim R 416 and R v Smith [2000] NSWCCA 468 at paras 33-36.
The Crown correctly submitted that the present case was one in which the jury enjoyed a considerable advantage in assessing the credibility and reliability of the witnesses. The jury saw the complainant and the other Crown witnesses and each of the accused and their witnesses give evidence. The evidence of the complainant and each of the accused was given over an extended period.
My review of the evidence has not resulted in me entertaining a reasonable doubt as to the appellant's guilt. Indeed, I would have been surprised if the jury had not found the appellant guilty.
The lift records when viewed against the remainder of the evidence do not cause me to have a reasonable doubt. Nor do the evidence and submissions as to the claim of right. It was correctly rejected.
I propose the following orders:
1.Extend the time within which Chien Wen Lu (aka Calvin Lu) may appeal.
2.Appeal against conviction dismissed.
EINFELD AJ: I agree with the orders proposed by Smart AJ.
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LAST UPDATED: 05/04/2002
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