R v Duong

Case [2011] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v DUONG & ORS

[2011] SASCFC 100

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice Peek)

31 August 2011

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY

CRIMINAL LAW - EVIDENCE - CREDIBILITY - RE-EXAMINATION OR EVIDENCE TO RESTORE CREDIT

EVIDENCE - ADMISSIBILITY AND RELEVANCY - RES GESTAE

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - JOINT TRIAL OF SEVERAL PERSONS

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE

Appeal against conviction - a jury found each of the appellants guilty of murder - the deceased was killed in the course of a brawl that erupted at the end of a birthday party one night in December 2009 - the deceased was fatally stabbed - each of the appellants were present and each of them was involved, to some extent, in the brawl - each appellant pleaded not guilty at trial, putting liability for the death of the deceased in issue.

The issues on appeal included whether the trial Judge erred in allowing the re-examination of a prosecution witness by the prosecutor after the witness had been cross-examined by defence counsel on a prior inconsistent statement - whether the trial Judge incorrectly admitted hearsay evidence on the basis it was part of the res gestae to prove identity - whether the trial Judge erred in directing the jury on the use of various pieces of evidence - whether the trial Judge erred in directing the jury on issues of complicity, aiding and abetting and joint criminal enterprise - whether the trial Judge went into sufficient detail in the summing up - whether a general circumstantial evidence direction was required in this case - whether the trial Judge erred in posing questions to the jury requiring them to speculate - whether directions on manslaughter were too narrow and had the effect of denying the accused the availability of a verdict of manslaughter - whether the summing up of the trial Judge was adequate as whole - whether there was a real or significant risk of a miscarriage of justice - whether the verdicts were unsafe and unsatisfactory.

Held:  the trial Judge correctly permitted re-examination - the hearsay evidence was admissible as part of the res gestae to prove the identity of the attackers - the trial Judge adequately explained and directed the jury on the use of various pieces of evidence and its strengths and weaknesses - no circumstantial evidence direction was required in this case - the many complaints concerning the directions of the trial Judge and the summing up of the trial Judge were rejected - if the trial Judge went into the…

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Details
AGLC
Corporation of the City of Adelaide v Corneloup [2011] SASCFC 100
Case
[2011] SASCFC 100
Decision Date

CaseChat Overview and Summary

The appellants, Duong, Sem, and Huynh, appealed their convictions for murder by a jury. The deceased was fatally stabbed during a brawl that occurred at the end of a birthday party. Each of the appellants was present and involved in the brawl to varying degrees, and each had pleaded not guilty, disputing liability for the death.

The appeal raised several legal issues, including the trial judge's decision to permit re-examination of a prosecution witness after cross-examination on a prior inconsistent statement, the admissibility of hearsay evidence as part of the res gestae to prove identity, and alleged errors in the trial judge's directions to the jury concerning the use of evidence, complicity, aiding and abetting, joint criminal enterprise, the adequacy of the summing up, the necessity of a general circumstantial evidence direction, and whether the judge's questions to the jury invited speculation. Further grounds concerned whether directions on manslaughter were too restrictive and if there was a real risk of a miscarriage of justice leading to unsafe and unsatisfactory verdicts.

The Full Court of the Supreme Court of South Australia dismissed the appeals. The court held that the trial judge had correctly allowed the re-examination of the prosecution witness. The hearsay evidence, specifically Rithy Kheav's alleged statement identifying Duong and Sem as the attackers, was deemed admissible as part of the res gestae to prove identity, given the circumstances of its utterance during a violent attack and the need for immediate assistance. The court found that the trial judge's directions on the use of evidence, the strengths and weaknesses of various pieces of evidence, and the issues of complicity and joint criminal enterprise were adequate. The court rejected the argument that a general circumstantial evidence direction was required and found that the summing up, when considered as a whole, was sufficient. The court concluded that the level of detail contended for by the appellants would have been counterproductive and unduly burdensome to the jury, and that there was no real or significant risk of a miscarriage of justice, rendering the verdicts safe and satisfactory.

Orders

Orders of the court

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Background

Background to the litigation

Most of the grounds of appeal relate to different aspects of the trial Judge’s directions to the jury. Facts What follows is a summary of the evidence. It does not identify all relevant witnesses nor all relevant evidence. Thea Kheav was 21 years old at the time. He was invited to attend the 18th birthday party for Richard Nguyen at Parafield Gardens. The party was held at the home of Mr Nguyen’s parents. Thea Kheav went there with his three brothers, Rithy aged 26, Tha aged 20 and Johnny aged 19. The four Kheav brothers arrived at the party about 7.00 pm. The party took place in the backyard of the house and at the side of the house. From the point of view of an observer standing on the street and facing the house, to the immediate left of the house was an enclosed garage with a roller door. To the left of that was a pair of iron gates, wide enough (if the gates were open) for a motor car to drive through. The gates extended to the side fence, closing off the back of the property. Some rubbish bins were adjacent to the point where the gates met the fence. The house was to the right of the roller door referred to. A paved driveway, the width of the double gates and the roller door, led from the street to the gates and roller door. In front of the house was an area of lawn. There was no fence at the front of the property. During the evening the appellant Rotha Sem (Sem) arrived. He was accompanied by the other two appellants, Chansya Duong (Duong) and Kiet Huynh (Huynh). There were a number of other people with them. Most of the group did not stay at the party for long. Most of them left with Duong and Huynh and went to Duong’s house. Sem remained at the party. It appears that the Kheav brothers did not like the group just referred to. Thea Kheav spoke to Mr Nguyen or Richard Nguyen about why the group had been invited to the party. This led to a confrontation between Sem and Rithy Kheav, Sem saying he had heard what Rithy Kheav had said about him and his companions. Tha Kheav was present at the start of this confrontation. The confrontation turned into a loud argument in the course of which, according to Rithy Kheav, Sem threatened to kill Rithy Kheav and his family. At some point in the course of this argument Tha Kheav became aggressive, and was restrained by other guests at the party. Tha Kheav broke free and again confronted Sem. Sem and Tha Kheav swore at each other loudly. At some point Sem said words to the effect of “Watch your back”, got into his car and drove off. By now it was about midnight, and the party was beginning to wind down. People were beginning to leave. Sem apparently drove to Duong’s house, where the rest of his group were. He told some of them what had happened. According to the witness Ms Francis, he was angry and wanted to go back to the party at the Nguyen house. Ms Francis said that Sem might have said “Let’s go get them.” It appears that the group as a whole began to leave the Duong house. As they were walking out Ms Francis heard someone (she did not know whom) say “Get a knife.” The group, or most of them, returned to the Nguyen house in several cars.

Evidence

Evidence Before The Court

I would reject this ground.Admission into evidence of hearsay evidence (Ground 1) (Permission to appeal required) The Judge permitted the prosecutor to lead certain evidence from Mr Loc Nguyen, the father of the young man whose birthday was being celebrated. Loc Nguyen said that as the brawl erupted he retreated into the garage and shut the roller door. He saw Thea Kheav trying “to get in through the side gate”. He said that “three or four guys were dragging him back”, then he heard Rithy Kheav call out:They stabbing my brother, help me help me.When asked whether he heard Rithy say who was stabbing his brother, he said:Yes, only I heard “Syna” [Duong] and with “Rotha” [Sem], they stabbing my brother.Rithy Kheav did not give evidence of saying what Loc Nguyen attributed to him When asked if he said anything at this stage, he said “I was crying” (T481).In evidence Rithy Kheav said that he saw Duong and Huynh stab Thea Kheav, with a weapon “like machete or samurai”. It is to be recalled that Thea Kheav suffered only one stab wound. The evidence from Rithy Kheav about the number of stabbers and who was stabbing was unclear at times. The Judge ruled that the evidence was admissible as proof of the identity of the attackers. The Judge provided reasons for his decision. In the course of his ruling he said:Words are sometimes uttered as a contemporaneous commentary on the speaker’s own conduct, or the conduct of others, as an exhortation to others to act. When spoken in that way, the words are, for all practical purposes, indistinguishable from the conduct that they accompany. It is because words in that context are spoken to give effect to conduct that the risk of concoction may be so reduced as to allow the statement to be safely received into evidence. Moreover, words spoken while the conduct in question is still continuing are less likely to be concocted because the contemporaneous observations of others of the conduct described are capable of exposing the falsity of the assertion. People are less likely to lie in the face of facts or circumstances which are at the time apparent to those other persons to whom they are speaking.In this case, the proposed evidence shows that the statement of RK, if it was made, was made in a desperate effort to secure some assistance for his brother who was facing a manifestly lethal attack. There is no real dispute that, at the time of the statement deposed to by LN , Thea Kheav was the victim of a ferocious attack. To falsely identify his brother’s attackers could only serve to confuse any efforts which might be made to save him. Moreover, it is unlikely that a person witnessing such an attack on a sibling would have the inclination, or composure, to falsely identify the attackers when others, who were also in a position to see the attackers, could identify the persons whom RK was accusing.The fact that RK will not depose to making the statement attributed to him does not render the evidence of LN inadmissible. Plainly enough, in the case of a statement made by the victim of a murder, there will be no evidence from the maker of the statement. Because the principle now under consideration is an exception to the hearsay rule, it can not be a necessary condition to admissibility that the maker of the statement give evidence. The absence of evidence to that effect by RK may undermine the reliability of LN’s testimony but that is a question of weight, not admissibility. Even though it is my judgment that these circumstances warrant the admission of the evidence, it will ultimately be for the jury to determine the reliability, and perhaps more importantly the meaning, of the statement attributed to RK.The Judge told the jury that they could use the evidence to support the prosecution case against Duong and Huynh, if they considered that Loc Nguyen was truthful and that his evidence was reliable.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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