R v Dinh

[2000] NSWCCA 536

Reported Decision: 120 A Crim R 42

New South Wales

Court of Criminal Appeal

CITATION:	R v Dinh [2000] NSWCCA 536
FILE NUMBER(S):	CCA 60665/00
HEARING DATE(S):	29 November 2000
JUDGMENT DATE:	14 December 2000
PARTIES :	Crown - Respondent David Duy Thai DINH - Applicant
JUDGMENT OF:	Fitzgerald JA at 1; Simpson J at 5; Howie J at 5

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70059/99
LOWER COURT JUDICIAL OFFICER :	Dunford J

COUNSEL :	R Hulme - Crown David Duy Thai DINH - T Hoenig
SOLICITORS:	S E O'Connor - Crown D J Humphreys - Applicant Dinh
LEGISLATION CITED:	Criminal Appeal Act 1912 Evidence Act 1995
CASES CITED:	Middis (SC NSW Hunt J 17 March 1991) Baartman (NSWCCA 6 October 1994) R v Fernando [1999] NSWCCA 66 R v Georgiou [1999] NSWCCA 125 R v Masters (1992) 26 NSWLR 450 at 146 R v Chai (1992) 27 NSWLR 153 at 191 R v Nguyen (CCA 23 September 1998) R v Saunders (1994) 72 A Crim R 347 R v Van Phu Ho CCA(NSW) unreported, 18 July 1994 House v The King (1936) 55 CLR 499 at 504-505 Alexandroaia v R (1995) 81 A Crim R 286 at 290 R v Steffan (1993) 30 NSWLR 633 R v Matovski (1989) 15 NSWLR 720 at 723 R v Wright (1990) 90 Cr App R 315 R v Bilick and Starke (1984) 11 A Crim R 452 at 462 Tripodi v R (1961) 104 CLR 1 at 7 Harriman v R (1989) 167 CLR 590 at 630 Wilson v R (1970) 123 CLR 334
DECISION:	Leave to appeal granted, appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60665/00
FITZGERALD JA
SIMPSON J
HOWIE J


14 December 2000

REGINA v DINH

JUDGMENT

1    FITZGERALD JA: The circumstances giving rise to this application are set out in the reasons for judgment of the other members of the Court.

2    It is quite possible that the prosecution will adduce evidence against one of the applicant’s co-accused which is not admissible in his trial. A joint trial will place considerable responsibility on the prosecution and a heavy burden on the trial judge to ensure that evidence which is given in the presence of the jury is not impermissibly used against the applicant.

3    However, I am not persuaded that the order for a joint trial involved any error of principle or was not open to the judge who is to conduct the trial in the sound exercise of his Honour’s discretion. While it is obviously desirable that the applicant’s trial does not miscarry, that possibility cannot be entirely avoided. It would only complicate the trial for this Court to express opinions on the admissibility of particular parts of the evidence at this point which it might be suggested at the trial are binding on the trial judge. Nothing decided on the present application will in any way restrict the applicant’s appellate rights if he is convicted.

4    I agree with the orders proposed by the other members of the Court.

*****

SIMPSON and HOWIE JJ

5    Duy Thai David Dinh, Phoung Canh Ngo, and Tu Quang Dao, are charged with the murder of John Newman, a member of the New South Wales Parliament, on 5 September 1994. A trial is fixed to commence on 29 January 2001.

6    A trial of the charges against Ngo, Dao and a third man Tuan Van Tran, which began in July 1999, aborted when Tran decided to assist the prosecution. It was as a result of the information he provided that Dinh was charged.

7    On 15 December 1999 Wood CJ at CL ordered that Dinh be tried separately from his co-accused. A trial of the charges against Ngo and Dao began in February 2000. It concluded in May, with the jury unable to reach a unanimous verdict. With the benefit of transcript of that trial, Dunford J entertained and, on 24 December 2000 granted, an application by the Crown for joint trials of the three accused.

8 The applicant Dinh seeks leave to appeal under s 5F of the Criminal Appeal Act 1912 against this order. He also seeks leave to appeal against one of the ancillary orders made at the same time. This judgment is concerned only with the order that Dinh’s trial proceed jointly with the trials of the co-accused.

9    The Crown alleges that Ngo instigated and organised the killing of Newman who was a political rival, that Dinh fired the shots and that Dao drove the vehicle which conveyed Dinh to Mr Newman’s home to carry out the murder.

The Crown case

10    What follows is an account of the case the Crown proposes to make. No findings of fact are encompassed in the narrative.

11    The steps which resulted in Newman’s killing in September 1994 commenced earlier that year in March or April when Ngo began to search for a person who might carry out the killing and a weapon with which the murder might be committed.

12    Ngo was the founder and honorary President of the Mekong Club in Cabramatta and the Crown alleges that he used the power and influence which he obtained from that position to recruit persons connected with the club to assist him in his enterprise to kill Newman. One of those persons was Mr Nguyen, who was a poker machine attendant at the club. Nguyen has been given an indemnity from prosecution and will give evidence for the Crown as to what he maintains were the arrangements and attempts in which he was involved to kill Newman at the Ngo’s behest.

13    In March or April 1994 Ngo approached Nguyen and asked him whether he was willing to kill Newman. Nguyen refused but agreed to find someone who was willing to carry out the killing. Ngo supplied him with a photograph of Newman. As a result Nguyen approached Charlie (whose name has been suppressed), enlisted his aid in finding a killer, and supplied him with the photograph of Newman. A short time later Charlie told Nguyen that he was not prepared to be involved in the killing of such a high profile member of parliament. This information was conveyed to Ngo.

14    At about the same time that Ngo approached Nguyen he also approached another employee of the Mekong Club, the personnel manager, Mr Tran. Tran has also been granted an indemnity and is expected to give evidence on behalf of the Crown as to his involvement in the enterprise to kill Newman.

15    At the behest of Ngo, Tran approached the head of security at the club, Mr Morris, about obtaining a gun. Morris then acquired a .22 Ruger which was paid for with funds from the Mekong Club. Tran also received approval from Ngo to use funds from the club to purchase a .22 rifle. Dao drove Tran and Nguyen to collect that weapon from premises in Botany.

16    A third weapon was purchased and it was this weapon which was used to kill Newman. It was a .32 calibre pistol obtained by Nguyen using funds from the Mekong Club given to him by Tran. At Ngo’s direction, Nguyen later gave this weapon to Tran.

17    Within a period of two weeks in April 1994 there were three attempts made to kill Newman using the .32 pistol. The first took place at a restaurant in Cabramatta. Ngo informed Tran and Nguyen that Newman would be attending a function at the restaurant and that they should go to the car park and there shoot Newman. Tran and Nguyen hid in the car park waiting for Newman to emerge from the restaurant. However, when he did so, there were too many persons with him and no attempt was made to carry out the killing.

18    The second attempt was at the Greyhound Club in Yagoona where Newman was attending a function. Nguyen and Tran were driven to the club by Dao. Again the attempt was frustrated because of the number of persons present at the club. Although the three men followed Newman from the club toward his home for a short period, they aborted the mission without attempting to kill him.

19    A third attempt was made at Newman’s home in Cabramatta after discussions between Ngo, Tran, Nguyen and Dao. Dao drove Tran and Nguyen to the house and waited in the vehicle while the other two entered the property. They were armed with the .22 rifle obtained by Tran as well as the .32 pistol. They waited for Newman to arrive home. However, they missed their opportunity by delaying too long and allowed Newman safely to enter the premises. The three men returned to the club and informed Ngo of their lack of success.

20    At this stage Nguyen withdrew from the enterprise, and Ngo instigated through Morris an attempt to replace him. The attempt ultimately failed but resulted in the loss of the .22 Ruger. Morris was then enlisted to obtain a replacement weapon and a .45 Magnum was eventually acquired, again by using club funds. An unsuccessful attempt was also made through Morris to obtain a silencer for the .32 pistol.

21    On 5 September, the night of the shooting, there was a staff meeting at the Mekong Club. This was an extraordinary meeting which coincided with an evening when Ngo knew that Newman would attend the Cabramatta branch of the Labor Party for about an hour before travelling to his home some short distance from where the meeting was held.

22    At the conclusion of the meeting Ngo asked Tran to find a replacement for Dinh who was a bar attendant at the club. An off-duty poker machine attendant agreed to fill in for about half an hour. He took over Dinh’s duties at about 8.30 and worked for about an hour while Dinh was absent from the club.

23    Dao drove Tran and Dinh to Newman’s home. They waited for Newman to return and during this time Ngo made a call to Dinh who was in possession of the club’s mobile phone. After Newman arrived, Dinh took the .32 pistol out of a bag and alighted from the vehicle. Dao and Tran waited in the vehicle with the engine running and its lights extinguished. Tran says that he heard gunshots and then Dinh came running back to the vehicle. They then left the scene eventually making their way back to the Mekong Club.

24    After the shooting Ngo went to Voyager Point on the Heathcote Road. Four years later police divers recovered a .32 pistol from the waters near this spot. This weapon was consistent with the one used to kill Newman.

The order for separate trials

25    On 15 December 1999 Wood CJ at CL ruled upon a number of interlocutory matters in respect of the trial which at that stage was to involve the present applicant and Ngo, Dao and Tran. In making the rulings his Honour referred to a judgment he had delivered on 16 July 1999 in respect of applications for interlocutory judgments and orders then before him. One of the orders he then made was an order for a separate trial of the charge against Dao. His Honour stated that the reasons for the orders and rulings he made on 15 December were to be read in light of the outline of the Crown case and the statements of principle contained in the earlier judgment.

26    At the time of the December ruling, the Crown’s case had changed significantly from that considered in the earlier judgment, by reason of the fact that Tran would be a Crown witness rather than an accused. Because of the new evidence available to the Crown, his Honour revoked the order granting Dao a separate trial. This was because he concluded that there was then sufficient evidence of Dao’s involvement in concert with Ngo, Tran and Nguyen from early in 1994 to render admissible against him evidence of acts undertaken by the others before 5 September, the date of the shooting.

27    His Honour then considered whether, in the light of the material then available to the Crown, a separate trial should be granted to Dinh. In respect of this matter his Honour said:

65 The position is, however, otherwise in relation to Dinh. The case against him depends almost exclusively on Tran’s evidence. The extent to which there is corroboration is minimal, and Tran alone, at this stage, fixes him with direct participation in the murder.

66 The risk of prejudice is substantial so far as the evidence of the earlier events might be seen by the jury as reinforcing Tran’s credibility on this issue central to Dinh’s case - a use that while potentially compelling for a lay jury is not one permissible under the law. I do not consider it possible to overcome the resulting prejudice by directions to the jury.

67 Moreover, Dinh’s hands would be tied in seeking to challenge the evidence of the earlier events, since it relates to matters that happened, so far as is presently known, in his absence, and outside his control. The case is one in which, as the evidence stands, Dinh was recruited at the last moment to carry out the shooting planned for 5 September. True it is that for Ngo and Dao the Crown contends that it was the final act in an evolving enterprise, but it is not necessarily the same enterprise for Dinh.

68 I accept that in Ahern (1988) 165 CLR at 99, the Court observed that:

“once there is reasonable ground for inferring a combination in cases other than conspiracy, acts and declarations of the participants in furtherance of the common purpose may be used to prove, not the fact of participation or the combination, but the offences charged”.


69 It is, however, difficult in the circumstances of the present case, where it is said that the others were involved in a joint enterprise continuing and evolving over six months or so before 5th September 1994, to assert that Dinh by his acts on 5th September impliedly authorised or adopted their earlier acts and words as his own, or to assert with any certainty that he joined the same enterprise.

70 Were there evidence that his participation began earlier than 5th September, or that he was aware of, and either expressly or by implication accepted, that which had preceded his joinder, then the position would clearly be otherwise. The doubt which arises is whether he became party to the same enterprise, and whether the acts done and words spoken by the others were done in furtherance of the enterprise which he joined.

71 The case is one where I am not, at this stage, persuaded, for the reasons outlined, that the evidence of events earlier than 5th September 1994, can clearly be shown to be admissible against Dinh. It is also one in which the Crown case against Ngo and Dao, is considerably stronger, having regard to the independent, circumstantial evidence that points towards their complicity in the killing.

72 I am satisfied that the risk of prejudice is of the kind and degree contemplated in Middis (SC NSW Hunt J 27 March 1991) and Baartman (NSW CCA 6 October 1994).

28    The reference in the last paragraph to the cases of Middis and Baartman is a reference to a summary of the principles to be applied in determining a separate trial application made by Hunt J in the former case and applied by this Court in the latter case. That summary is as follows:

1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another, or the other accused to be jointly tried with him; and
2. Where the evidence against those other accused contains material highly prejudicial to the applicant, although not admissible against him; and
3. Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,
a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.
The order revoking the order for separate trial

29    By notice of motion dated 16 August 2000, the Crown sought an order that the trial of Dinh be joined to that of Ngo and Dao. In the affidavit in support, it was submitted that on the basis of the evidence of given by Tran at the earlier trial “most of the evidence of the Crown witnesses is admissible against Mr Dinh”. The notice of motion came on for hearing before Dunford J, who is expected to be the trial judge.

30    A transcript of the Crown’s opening at the February trial and Tran’s evidence was annexed to the affidavit as well as the judgments of Wood CJ at CL of 16 July and 15 December 1999.

31    After reviewing the Crown case against all accused, Dunford J referred to the principles to be applied in respect of separate trials as discussed by this Court in R v Fernando [1999] NSWCCA 66 and R v Georgiou [1999] NSWCCA 125. In particular his Honour referred to the principle, gleaned from a number of cases, that where two or more persons are engaged in a common enterprise it is generally proper that they be tried together. His Honour also set out the summary of Hunt J from Middis which is quoted above.

32    Dunford J referred to the passages of the judgment of Wood CJ at CL which are quoted above and stated:

39 Now that the evidence in the joint trial of Ngo and Dao has been completed, it can, in my view, reasonably be asserted that on the Crown case the enterprise which Dinh allegedly joined on 5 September was the same enterprise in which Ngo, Dao, Tran and Nguyen had been engaged for some months; namely the killing of Newman at the behest of Ngo.

40 It follows that the acts and declarations of the other alleged participants in the common enterprise are admissible to prove the nature of the enterprise, though not the accused Dinh's participation in it: R v Masters (1992) 26 NSWLR 450 at 461, R v Chai (1992) 27 NSWLR 153 at 191, R v Louden (1995) 37 NSWLR 683, R v Nguyen (CCA 23 September 1998).

41 Not only is the evidence admissible against Dinh on this basis, but although some of it may be excluded under ss 135 and 137, or its use limited under s 136 of the Evidence Act 1995 , a lot of it will be necessary to enable the Crown to paint a complete picture of what it claims is its case against Dinh, including motive or reason for his involvement, the purchase by Tran and/or Nguyen of the weapon used in the shooting at the behest of Ngo, and with funds to which Ngo had access through the Mekong Club, the presence of Ngo in the Camry near the scene at the time of the shooting, his involvement in the relevant telephone calls on mobiles at the time, including the call by Dinh to Ngo shortly after the shooting, and Ngo's alleged subsequent disposal of the murder weapon; also the botched previous attempts explain the need to recruit another shooter. These are all surrounding circumstances which it would appear are admissible in the trial against Dinh.

42 It appears that the position as it appeared to Wood CJ at CL in December 1999 no longer applies, in that a large amount of the evidence of events prior to 5 September is admissible against Dinh, and it is accordingly appropriate to reconsider the question of a separate trial: R v Saunders (1994) 72 A Crim R 347.

33    In Saunders this Court, in holding that an order for separate trials was an interlocutory order for the purpose of s 5F, referred to the power of the trial court to vary or rescind an interlocutory order and when it was appropriate to do so. The relevant practice and principles enunciated by this Court in Saunders are set out below.

Application for leave

34 Section 5F requires the applicants to obtain leave to appeal against an interlocutory order or judgment. Leave should not readily be granted unless an appropriate case is made out showing an error of principle apt to cause irregularity or injustice: R v Van Phu Ho NSWCCA, unreported, 18 July 1994. Where the order involves the exercise of a discretion, the usual limitation placed upon an appellate court’s intervention will apply: House v The King (1936) 55 CLR 499 at 504-505; Alexandroaia v R (1995) 81 A Crim R 286 at 290. It has been held that leave will only be granted where the decision which is the subject of the application is attended with sufficient doubt as to warrant the matter being argued on appeal: R v Steffan (1993) 30 NSWLR 633 at 644-645, or where the interests of justice otherwise require the intervention of the Court at this stage in the proceedings: R v Matovski (1989) 15 NSWLR 720 at 723.

35 The Crown contends that, in so far as the decision of Dunford J to revoke the earlier order for separate trials involved a determination on the admissibility of evidence to be led at the trial, that determination is not reviewable by this court on this application. This is said to be because, generally, a ruling upon evidence will not be a judgment or order coming within the scope of s 5F: R v Steffan, above, at 639.

36    However, his Honour made no binding ruling as to the admissibility of evidence in the Crown case against Dinh. As part of exposing his reasons for concluding that there should be no bar to the Crown jointly indicting Ngo, Dao and Dinh, his Honour considered the nature of the Crown case against Dinh and the co-accused in light of the material then available to him.

37    As was pointed out in Steffan, rulings on evidence are fluid and can change from time to time during the trial. There is nothing in his Honour’s judgment which would relieve him of making evidentiary rulings during the course of the trial on specific parts of the evidence which the Crown wishes to lead but to which objection is taken by any of the accused persons.

The order of Dunford J revoking separate trials

38    In Saunders this Court considered the power of a trial judge to entertain an application with respect to a joint trial in circumstances where such an application had already been considered and determined by a different judge. In the course of the judgment of Smart J, with which the other members of the Court substantially agreed, consideration was given to the judgment of the English Court of Appeal in R v Wright (1990) 90 Cr App R 325.

39    Wright concerned an appeal from the refusal of the trial judge to consider an application for a separate trial which had previously been considered by a different judge. In delivering the judgment of the court allowing the appeal, Mustill LJ, said (at 339):

" ...We further consider that if the question had arisen during a trial before a judge who had already ruled at the outset of the trial, he would not have been formally bound to maintain his original ruling. He could have reversed it, if he felt that the interests of justice so demanded, with whatever consequences as to the future conduct of the trial the circumstance might dictate. Equally he could have refused to entertain a renewed submission on the question, unless satisfied that the circumstances governing his original ruling had not materially altered. It would not be his duty to listen to the same arguments on the same facts over and over again. The position would, as it seems to us, be the same if his prior ruling had been given just before rather than at the trial.
...
In our opinion, the decision on severance by the first judge does not bind the second; conversely, the latter is not obliged to hear the same point argued again if nothing material has changed. If however it is asserted that there has been a change, then he should permit the happening of the change to be canvassed, and if satisfied that there really is something new which might affect the justice of maintaining the original order, he should look at the matter for himself.”(at 339)

40    Smart J held that these passages from the judgment of the Court of Appeal indicated the correct approach to be taken in New South Wales where there is a second or subsequent application for a joint or separate trial.

41    As will be seen from the passages of the judgment of Wood CJ at CL quoted above, his order granting Dinh a separate trial was based primarily upon a finding that he was not persuaded on the material before him that the evidence of what occurred before 5 September 1994 was admissible against Dinh. This was because he was not persuaded that that the enterprise Dinh joined on 5 September was, as far as Dinh was concerned, the same enterprise that was on foot before that date. His Honour was, therefore, not persuaded that there was a basis upon which the evidence of acts and declarations of others before 5 September could be admitted against Dinh.

42    Wood CJ at CL came to his view about the appropriateness of a joint trial involving Dinh upon the material then before him. That consisted of a statement taken from Tran but before Tran had given evidence at the trial of Ngo and Dao.

43    However, when the Crown’s notice of motion was considered by Dunford J he had the benefit of the trial transcript of Tran’s evidence which could be considered in light of the Crown Prosecutor’s opening before the jury in that trial.

44    According to the practice identified in Saunders as applicable to the situation facing Dunford J, his Honour was in our view entitled in the exercise of his discretion to determine whether or not to consider again the question of a joint trial involving Dinh. It was a matter primarily for his Honour, as trial judge, to decide whether he was persuaded that there was a sufficient reason to permit the issue to be re-ventilated before him. His Honour took into account the reasons given by Wood CJ at CL for the order made by him and concluded that it was open to him to reconsider the question and make a further determination on the material available at the time the issue was raised again by the Crown. We have not been persuaded that that course was not open to him.

45    Nor are we persuaded that the decision to order a joint trial was erroneous. Although this was an application by the Crown to vacate the order made by Wood CJ at CL, the Crown was entitled to present a joint indictment notwithstanding the earlier order: Saunders, above, at 354. The nature of the application made no difference to the principles Dunford J was to apply in determining the matter, once he decided to allow the issue to be re-ventilated before him.

46    Prima facie there should be a joint trial because the Crown’s case is that at the time of the killing Dinh and his co-accused were acting in a joint criminal enterprise to murder John Newman. It is only if the trial judge is persuaded by an applicant that “a positive injustice would be caused to him in a joint trial” that an application for a separate trial should be granted: see Hunt J in Middis, above.

47    Dunford J considered and applied the principles in Middis and other decisions of appellate courts on this question and concluded that there was insufficient prejudice to Dinh to warrant the continuation of the order for separate trials. We are of the view that it was open to his Honour to come to that conclusion, notwithstanding that Wood CJ at CL had formed a different view on the material before him.

48    One of the matters which Dunford J had to consider was whether there was evidence against Ngo and Dao but which was inadmissible against Dinh and prejudicial to him. This required his Honour to form at least a tentative view upon the admissibility of evidence of acts and declarations of the other participants in the common enterprise at a time before Dinh can be shown to have joined it.

49    The fact that a person enters into a joint criminal enterprise at a time after the enterprise has already commenced does not mean that the joint enterprise changes its nature or that a new joint enterprise commences merely by reason of the involvement of the new person in that enterprise. Nor is evidence of what occurred during the course of the enterprise before the person entered into it necessarily inadmissible against the person lately joining the enterprise.

50    In R v Bilick and Starke (1984) 11 A Crim R 452 at 462 the Crown case was that there was a joint enterprise between Bilick and two women to supply heroin. It was alleged that this enterprise had commenced in Perth. The three persons travelled to Adelaide and the Crown alleged that Starke then joined that existing joint enterprise. It was held by the Court of Criminal Appeal of South Australia that, as there was evidence of concert between Bilick and Starke and the women to supply heroin, “evidence of things done and said before Starke's adhesion to the enterprise, were admissible against him for the purpose of showing the character of the enterprise to which he adhered”.

51    Tran’s evidence was enough to show Dinh’s adherence to the joint enterprise which was operating on 5 September and had been operating since March or April of that year. If Tran’s evidence is accepted, then before the shooting Dinh must have known of the existence of the joint enterprise to kill Newman which involved at least Ngo and Dao. The evidence of things done and said by persons engaged in the enterprise before Dinh joined it would, in our view, be admissible to show the nature of the enterprise in which he became involved.

52    This has been held to be the law in a number of decisions of this Court which were relied upon by Dunford J in coming to the conclusion that the evidence of the acts and declarations of others prior to 5 September was admissible for this limited purpose and are referred to him in the passage quoted above. The evidence could not be used to prove Dinh’s participation in the joint enterprise at that time, the Crown does not propose to use it for that purpose.

53    True it might be that Tran’s evidence concerning what happened on the night of 5 September 1994 and what Dinh did is sufficient to indicate the nature of the joint venture that was ongoing at the time. But that does not mean that other evidence available to prove the nature of the joint enterprise in which Dinh was engaged is for that reason alone rendered inadmissible. The Crown is not limited to presenting a minimalist case where it has admissible evidence to strengthen or support its contentions.

54    Contrary to submissions made on behalf of the applicant, we are of the view that the admissibility of such evidence does not depend upon the role taken by the person in the joint enterprise or the technical basis upon which the person may be liable for the criminal act committed as a result of the joint enterprise. The admissibility of evidence of the acts and declarations of others in the joint enterprise against an accused does not depend upon a characterisation of that particular accused as a principal, either in the first or second degree, or an accessory. In many cases of joint criminal enterprise the Crown will not be able to indicate precisely the role played by a particular person shown to be involved in the joint enterprise.

55    Nor is the admissibility of the evidence in the present case dependent upon proof that the particular accused adopted, either expressly or impliedly, the acts and declarations of the other members of the joint criminal enterprise. A passage from the judgment of the High Court, in Tripodi v R (1961) 104 CLR 1 at 7 relied upon by the applicant, is concerned with a different issue, being whether statements of others in a joint criminal enterprise could be used to prove the participation of the accused in that enterprise. That is not the purpose for which the evidence was to be used by the Crown in the present case.

56    Further, the evidence of what had occurred prior to 5 September was admissible in order that the jury would understand why persons involved on the night of 5 September would act as they did. For example, evidence of the relationship between Ngo and persons at the Mekong Club, where Dinh was employed, was admissible to show why it was that Dinh would become involved in the enterprise to kill Newman on 5 September. Evidence of the relationship between persons is admissible to explain both the context in which the acts relied upon by the Crown occurred and why persons, including the accused, acted as they did in relation to the facts giving rise to the charge before the jury: Harriman v R (1989) 167 CLR 590 at 630; Wilson v R (1970) 123 CLR 334.

57    There are other features of the evidence of what happened on the night of the shooting which might be incomprehensible to the jury without the evidence of what had occurred previously. For example, without evidence of Nguyen’s withdrawal and Mr Morris’s inability to find a replacement, the jury may not understand why Dinh would become involved within an hour of the shooting.

58    It is clear that the case against Dinh relies almost exclusively on Tran’s evidence and both Wood CJ at CL and Dunford J were concerned that the jury might wrongly use the evidence of the events preceding 5 September to support his credibility. But without the context of what had happened earlier, the jury would not be able properly to judge his credibility and evaluate his version of events. For example, they might find it incomprehensible that Tran would be in the vehicle yet play no part in the shooting. The jury could only appreciate competing arguments to account for his presence in the context of what he said had occurred before the night of the shooting.

59    Dunford J referred to the evidence of what occurred before 5 September as being admissible to “paint a complete picture of what it claims is its case against Dinh”. His Honour indicated a number of aspects of the Crown’s version of what happened on 5 September to which the evidence of what occurred before that night would relate. It would be inappropriate for this court to purport to rule definitively on the admissibility or otherwise of evidence that will be tendered in the trial. That will largely be determined by the trial judge as the case unfolds. It will be for the trial judge to decide, and to direct the jury, on the use that may be made of particular pieces of evidence. For the moment, we are not persuaded that any error has been identified in the approach taken by Dunford J, or in his tentative views of the admissibility of the evidence.

60 As Dunford J expressly recognised, he will have to consider how much of this evidence should be admitted against Dinh and whether there is a need to exclude particular parts of it under ss 135 and 137 of the Evidence Act or whether to limit the use to be made of it by the jury under s 136 having regard to the purpose for which the evidence is tendered against Dinh.

61    Having formed the view the evidence of what occurred before 5 September was generally admissible in the Crown case against Dinh, Dunford J then considered whether, applying the principles set out in Middis, he should order a separate trial notwithstanding his view as to the admissibility of that evidence. He concluded that any potential prejudice to Dinh by reason of a joint trial could be cured by appropriate directions to the jury.

62    We are not persuaded that Dunford J was in error in taking that view. Both his Honour and this court are entitled to act on the assumption that jurors will attend to and comply with directions and warnings given by a trial judge.

63    In light of the differing views taken upon the appropriateness of a joint trial by two trial judges of this court, we would grant leave to appeal but dismiss the appeal.

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