R v Duong
[2019] VSC 377
•7 June 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2016 0147
| THE QUEEN | Crown |
| v | |
| HUONG DUONG | Accused |
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JUDGE: | TAYLOR J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 May 2019 |
DATE OF RULING: | 7 June 2019 |
CASE MAY BE CITED AS: | R v Duong |
MEDIUM NEUTRAL CITATION: | [2019] VSC 377 |
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CRIMINAL LAW – Accused charged with murder – Accused previously found unfit to plead – Special hearing – Deceased trafficked heroin from a high rise public housing flat – Accused points to reasonable possibility of alternative suspects from drug milieu.
EVIDENCE - Subpoena to produce addressed to the Chief Commissioner of Police – Subpoena seeks police records relating to drug traffickers connected with the public housing tower – Whether accused demonstrated a legitimate forensic purpose – Whether subpoena is, in part, oppressive – Claim of public interest immunity – Application of principles in Commissioner of theAustralian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3 – No legitimate forensic purpose – Subpoena set aside.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S Flynn QC | Mr J Cain, Solicitor to the OPP |
| For the Accused | Mr P Chadwick QC with Mr R de Kretser | Fitzroy Legal Service |
| For the Chief Commissioner of Police | Mr R Gip | Victorian Government Solicitor’s Office |
HER HONOUR:
The accused is charged with the murder of Ngoc Chau Tran.
It is not in dispute that the deceased trafficked in heroin from his flat.
The accused was a heroin user and an associate of the deceased.
The body of the deceased was found in his flat in the tower of public housing apartments at 106 Elizabeth Street, Richmond on 8 November 2015. He had suffered multiple sharp force injuries and a pair of kitchen scissors were protruding from his right eye socket.
The deceased was last seen alive on 3 November 2015 when he left a Richmond hotel and returned to his flat, the latter movement captured on CCTV footage at 12.03 pm. The mobile telephone service of the deceased did not make or receive a call after 8.53 pm that evening.
CCTV footage shows the accused arriving at the Elizabeth Street flats at 6.26 pm on 3 November 2015 and walking in the direction of the deceased’s apartment. At 7.45 pm on 5 November 2015 the accused was captured on CCTV footage entering the lift of the apartment block from the accused’s floor and exiting the building. She was wearing what appear to be the same clothes that she was wearing when seen on CCTV footage two days earlier. She did not return to her own accommodation that night. The Crown alleges that the accused remained at or around the deceased’s apartment between 3 and 5 November 2015.
CCTV footage from 7 November 2015 also captures the accused at the Elizabeth Street flats.
The Crown case is that the accused murdered the deceased between 3 and 8 November 2015.The case is circumstantial, relying upon a combination of evidence including her provable movements, forensic evidence showing the presence of the accused’s fingerprints and DNA in the deceased’s flat and incriminating conduct in the form of lies told by the accused during her record of interview with police.
The accused denies she killed the deceased. The defence case is that many people frequented the flat of the deceased and that the Crown cannot exclude the reasonable possibility that someone other than the accused is responsible for the murder, particularly given that the deceased was a drug trafficker.
History of Proceedings to Date
A jury has found the accused unfit to stand trial. She has an acquired brain injury.
For reasons not presently relevant, juries in three special hearings have been discharged prior to verdict. The special hearing is now listed to commence on 24 July 2019.
Shortly prior to the most recent of these aborted hearings, the prosecution disclosed information relating to a fingerprint found in the deceased’s flat. Consequent upon the arrest of a number of persons in January 2019 for serious drug offences, it was established that that fingerprint, previously unidentified, was made by Thi Thuy Tran (‘Lina Tran’).
Lina Tran made a statement in which she denied any knowledge of the killing and said that she did not know the deceased well but stayed at his flat with her daughter for a very brief time in 2015. That arrangement was brokered by Thao Thi Tran, who lived in the flats at 106 Elizabeth Street. The deceased and Thao Thi Tran were known to each other. It is undisputed that she supplied the deceased with heroin, that he had expressed dissatisfaction with its quality, and at the time of his death he owed Thao Tran money.
Lina Tran was cross-examined at a voir dire hearing as to her criminal history and other matters, including her association with a man named Viet Nguyen. Mr Nguyen is (perhaps) the father of Lina Tran’s child. Her evidence was that she had had no association with Mr Nguyen since 2010.
The defence submits that Lina Tran’s version of how her fingerprint came to be in the flat of the deceased is untruthful. The defence seeks to explore Lina Tran’s connections to the deceased, his flat, the tower at 106 Elizabeth Street and heroin trafficking or other criminal activity.
During the course of the most recent special hearing, the defence issued a subpoena to Victoria Police with respect to certain material. That material of some 1006 pages was produced and provided in redacted form to the Defence on 15 May 2019. No objection was taken to the production of that material on the basis of a lack of legitimate forensic purpose or any other. A jury had been empanelled in the special hearing since 6 May 2019. The prosecutor stated that the material the subject of the 15 May 2019 subpoena was provided as a matter of pragmatism, but was not to be taken as a concession that anything within that material was relevant to the issues to be tried in the special hearing.
The jury was discharged on 20 May 2019.
The Challenged Subpoena
On 20 May 2019 the accused issued a further subpoena seeking 22 items, being categories of documents, from Victoria Police. The documents falling within three items have already been provided and the documents falling within a further two items are no longer sought.
Accordingly the accused seeks documents falling within the remaining 17 items. The Chief Commissioner of Victoria Police (‘CCP’) argues the whole of the subpoena should be set aside on the basis that no legitimate forensic purpose is established. He was joined in that argument by prosecuting counsel. Further and in the alternative, the CCP argues with respect to item 22 that the production of the documents would be oppressive and, in respect of three other items, makes whole or partial claims of public interest immunity.
The CCP relies upon an affidavit of Detective Sergeant James Peter Brady sworn 29 May 2019 and a further confidential affidavit of Detective Sergeant Brady sworn the same day.
The items and the objections taken to them are summarised in the following table.
Item Description Objection 1 Additional remarks in LEAP relating to Lina Tran. No LFP 2 Person entity report relating to Viet Nguyen. No LFP 3 Witness statements made by Viet Nguyen relating to the killing of Hieu Trung Luu and the shooting of Chau Ming Nguyen on 8 November 2004. No LFP 4 The target profile of Viet Nguyen from Operation Artsee on 5 October 2010. No LFP 5 The target profile of Viet Nguyen from Operation Artsee 2 on 2 February 2011. No LFP 6 Any other target profile of Viet Nguyen completed by Homicide. No LFP / PII 7 The target profile of Cuong Mach on 27 August 2013. No LFP 8 Details of any interpose signpost for Viet Nguyen’s connection to any Homicide, Major Crime Intelligence Unit. No LFP / PII (in part) 9 Any document relating to Viet Nguyen being a person of interest in an old homicide related matter. No LFP 13 Interpose report for Operation Unexcitable. No LFP 14 Interpose report for Operation Magnus. No LFP 15. Interpose report for Operation Educt. No LFP 16 Interpose report for Operation Dillahunt. No LFP 17 Particulars for a specified LEAP entry relating to Operation Educt. No LFP 18 Interpose report for Operation Colotomy. No LFP / PII (in part) 19 Full criminal history of Quang Dang Nguyen. No LFP 22. All documents (including information reports) relating to criminal gangs (including but not limited to YK/Yellow Klique group) or organised crime networks operating within the Department of Housing flats in Elizabeth Street, Richmond between 1 January 2010 and 31 December 2015. No LFP / Oppression Legal Principles
The legal principles applicable to the resolution of this matter are not in dispute. They were summarised by J Forrest J in Commissioner for the Australian Federal Police v Magistrates’ Court of Victoria[1] as follows:
[1][2011] VSC 3, [28] (citations omitted).
(a)It is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought.
(b)The identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced.
(c)The applicant for the witness summons must also satisfy the court that it is ‘on the cards’, or that there is a ‘reasonable possibility’, that the documents sought under the subpoena ‘will materially assist the defence’.
(d)A ‘fishing expedition’ is not a legitimate forensic purpose and will not be permitted.
(e)The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.
(f)A mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough - the criteria set out in (c) must be satisfied.
(g)In criminal proceedings a ‘more liberal’ is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.
(h)Where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.
In Ragg v Magistrates’ Court of Victoria,[2] Bell J summarised the position as follows:
An accused person is entitled to seek production of such documents as are necessary for the conduct of a fair trial between the prosecution and the defence of the criminal charges that have been brought. When objection is taken, the accused must identify expressly and with precision the forensic purpose for which access to the documents is sought. A legitimate purpose is demonstrated where the court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the documents will materially assist the defence. That is a low threshold, but it is a threshold.
The ‘reasonable possibility’ test does not apply in all cases in a fixed manner as if the relevant considerations always have the same value. It is necessary to consider ‘the importance of the issue to which it is said the subpoena relates and the importance of the document in question in the determination of that issue’ and, more generally, ‘the circumstances as a whole’. In doing so, it is necessary to give a ‘broad interpretation ’to the issues in the case or, to put it another way, the ‘parties’ respective cases should not be restrictively analysed.’ It is also important to pay due regard to the fact that ‘defence lawyers are in a better position than a judge to make an appraisal of the value of information contained.’ Lastly, as Pincus JA said in R v Spizzirri: ‘courts should be careful not to deprive the defence of documents which could be of assistance to the accused.’
[2][2008] VSC 1, [96] – [97] (citations omitted).
Submissions
Legitimate Forensic Purpose
The accused argues that it is a legitimate forensic purpose to explore the deceased’s relationship with other persons, especially those that lived in or visited his flat, or lived in or visited the tower block at 106 Elizabeth Street in Richmond. This is because drug dealing associated with those flats is notorious, they are not secure and the Crown cannot establish when, within a six day period, the deceased was killed, why he was killed, or who else may have been involved in the killing of the deceased. The accused argues that it is legitimate to explore any persons who may have had the opportunity or motivation to kill the deceased, particularly those who have a history of violence, weapons and drug-related offending.
The accused submits that the subpoena is not a fishing expedition, rather, it seeks to ‘lift the lid’ to get more details about information already disclosed on 15 May 2019 pursuant to the earlier subpoena.
The CCP argues that the accused seeks to identify alternative suspects for the murder of the deceased by hoping to find in the material information implicating Lina Tran, Viet Nguyen, Cuong Mach, Quang Dang Nguyen and/or Minh Lu. Alternatively the accused hopes to discover other strikingly similar crimes committed by others so as to suggest that the accused is not responsible for the murder of the deceased.
The CCP argues that the subpoena is nothing more than a fishing exercise. He says that the existence of Lina Tran’s fingerprint in the deceased’s flat is an insufficient link to establish that the antecedents of Lina Tran, Viet Nguyen, Cuong Mach, Quang Dang Nguyen and/or Minh Lu will implicate them in the murder.
Prosecuting counsel also argues that the accused has failed to demonstrate a legitimate forensic purpose. She submits that there is no evidence of animus between the deceased and Lina Tran, Viet Nguyen, Cuong Mach, Quang Dang Nguyen or Minh Lu, nor any basis to suggest that the deceased was involved in drug activity with any of them. Counsel further submits that the temporal span of the documents sought indicate the fishing nature of the subpoena.
Discussion
In my view, the accused has failed to demonstrate a legitimate forensic purpose. It is necessary to examine the items individually.
Item 1 concerns Lina Tran. She is a Crown witness and the defence seek to challenge her credibility. While LEAP records are reasonably likely to assist in that endeavour, item 1 is a record for the whereabouts of Lina Tran as a witness in relation to a 2004 murder that occurred in her house. It bears no relationship to her credibility. The accused has failed to demonstrate that this item would materially assist her defence.
Items 2, 3, 4, 5, 6, 8, 9, 13, 14, 15 and 17 concern Viet Nguyen.
Specifically, items 2 and 4 relate to a 2010 drug investigation targeting Viet Nguyen. Item 3 consists of two witness statements relating to statements made by Viet Nguyen in relation to the 2004 murder that occurred in Lina Tran’s house (his then girlfriend) when Viet Nguyen was not present. Item 5 relates to a continuation of the 2010 police operation relevant to items 2 and 4. Item 6 is target profile documents prepared by the Homicide Squad. Item 8 comprises 16 information reports ranging from 2004 to 2019. Item 9 has already been provided to the defence. Item 15 is a 2015 report relating to an incident in which a woman was injured but the nominated primary offender was not Viet Nguyen, but rather his girlfriend. Item 14 relates to a 2016 heroin trafficking investigation in which Viet Nguyen was a secondary target and which was not, in any event, completed. Items 15 and 17 relate to a 2016 investigation in relation to a firearms/affray incident. No proceedings were taken against Viet Nguyen due to insufficient evidence.
Viet Nguyen is not a witness in the special hearing.
The accused has failed to demonstrate that there is any connection at all between Viet Nguyen and the deceased. Accordingly, she has failed to demonstrate the reasonable possibility that the documents falling within these items would materially assist her defence. The fact that Viet Nguyen lived at 106 Elizabeth Street is insufficient. He was but one person living in a tower of 200 flats. The fact that he has a police record for drug, weapon and violent crimes or that he has been investigated in connection with such crimes does not overcome the difficulty that there is no rational basis to expect that the material sought will yield any connection to the deceased.
Further, the fact that Viet Nguyen may be the father of Lina Tran’s child and that, prior to 2010 he lived with her, does not alter the position. The accused can point to no basis to found any association between Lina Tran and Viet Nguyen in the five years prior to the murder of the deceased. That is so notwithstanding that Lina Tran’s child is currently said to be in the custody of Viet Nguyen’s parents. It follows that whatever the jury make of Lina Tran’s evidence as to how her fingerprint came to be in the flat of the deceased, there is simply no evidence of a relevant connection between her and Viet Nguyen to suggest that anything in the police documents concerning Viet Nguyen would assist establishing a connection between Viet Nguyen and the deceased.
Item 16 is a 2014 report of an assault and armed robbery investigation occurring in a different tower of the public housing flats in Richmond. Cuong Mach was charged. The matter was struck out at the Magistrates’ Court in 2015.
There is evidence from which it may be inferred that the deceased and Cuong Mach were known to each other, if the jury accept that the Cuong referred to in the evidence is indeed Cuong Mach. Mr Mach is not a witness in the case. In any event, assuming for present purposes that the Cuong referred to in the evidence is Cuong Mach, there is no evidence from which to infer that any animus existed between Cuong (Mach) and the deceased, nor that there was any drug connection between them. Accordingly, the accused has failed to demonstrate the reasonable possibility that any police documentation with respect to Cuong Mach will assist her defence.
Item 18 is a 2012 report of an investigation concerning drug trafficking and associated activity. The investigation looked, in part, at Minh Lu. Mr Lu is not a witness in the case. Again, the accused has failed to demonstrate the basis upon which there could be a reasonable possibility of a relevant connection between those events in 2012 and the deceased, or Mr Lu and the deceased. Patronage of the same drinking establishment is clearly insufficient.
Item 19 is the prior criminal history for Quang Dang Nguyen, who was charged with the 2004 murder referred to in item 3. If there is a connection between Quang Dang Nguyen and Viet Nguyen, that does not demonstrate a legitimate forensic purpose in documents relating to an incident some 11 years prior to the murder of the deceased. And, it is to be remembered that Lina Tran was a secondary victim of the 2004 offence.
Item 22 seeks disparate items over the five year period prior to the murder of the deceased. The accused has failed to demonstrate any connection between the deceased and any criminal gang, the YK/Yellow Klique gang or otherwise. In oral argument Senior Counsel for the accused sought to narrow item 22 to information reports referred to in newspaper articles of May 2010. It cannot be, absent any information of a connection between the deceased and a ‘criminal gang’, that there is any reasonable expectation that any document falling within the description of item 22 would materially assist the defence.
I note that the defence intends to argue to the jury that the Crown cannot exclude the possibility that the death of the deceased is due to person or persons unknown operating within the drug milieu of the Richmond housing commission flats, both those at 106 Elizabeth Street and the other proximate towers. The defence intends to lay the foundation for this argument primarily through cross examination of the informant as to the prolific drug activity that occurs in those locations and as to the suggested lack of police investigation into the ‘drug angle’ of the death of the deceased.
The only way in which the material sought under the subpoena as to named individuals could be of assistance in that strategy is if it was ‘on the cards’ that it would be likely to connect to the deceased either directly to those named individuals or via the fingerprint of Lina Tran found in his apartment. The accused can point to no basis to suggest that it is on the cards that there is any such connection. That the deceased was not the only resident of the Richmond flats who trafficked in drugs is insufficient. He had a drug connection to Thao Thi Tran. There is no basis to infer that he had a drug connection either directly or vicariously to Lina Tran, Viet Nguyen, Cuong Mach, Quang Dang Nguyen and or Minh Lu. That Lina Tran and Thao Thi Tran were both arrested in relation to the same offending in January 2019, more than three years after the death of the deceased is of no relevance. It follows that the materials are sought in the hope that they will turn up some piece of information which might bolster the defence theory.
Oppression
Given my conclusion it is not necessary to deal with the claim of oppression with respect to item 22. But I note that had it been necessary to do so, I would find that item 22, as phrased, is oppressive. As Detective Sergeant Brady deposed, it is impossible to perform a search for documents relating to ‘criminal gangs’ or ‘organised crime networks’ operating ‘out of’ the Richmond flats over a five-year period. The terms are insufficiently precise and the temporal span is too broad.
Public Interest Immunity
Although it is also unnecessary to deal with the claim of public interest immunity, I note that had I reached a different view with respect to the demonstration of legitimate forensic purpose, I would have upheld the claim for public interest immunity with respect to items 6, 8 and 18. Taking into account the matters deposed to in the confidential affidavit of Detective Sergeant Brady and applying the considerations referred to in s 130(5) of the Evidence Act 2008 (Vic), the public interest in disclosing those documents is outweighed by the public interest in preserving the confidentiality of those documents.
Conclusion
Accordingly the order of the court is that the subpoena is set aside in its entirety.
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