R v Duong

[2000] QSC 266

SUPREME COURT OF QUEENSLAND

CITATION:

R v Duong and Anor [2000] QSC 266

PARTIES:

THE QUEEN
v
DIEN CONG DUONG and
DUNG NGOC NUGYEN

FILE NO:

93 of 2000

DIVISION:

Trial Division

DELIVERED ON:

27 October 2000

DELIVERED AT:

Brisbane

HEARING DATE:

27 September 2000

JUDGE:

Mackenzie J

ORDER:

1.  The application of Dien Cong Duong for a separate trial is refused.
2.  That Dung Ngoc Nguyen be tried separately from the other accused on the indictment before the court.

CATCHWORDS:

CRIMINAL LAW – JOINT OFFENDERS – MURDER – Application for separate trial – different acts alleged in co-accused's records of interviews – record of interview interpreted from Vietnamese – risk of positive injustice.

The Queen v Darby (1981-1982) 148 CLR 668
R v Davidson [2000] QCA 39
Farrell & Cotton (1990) 48 A CrimR 311
R v Harbach (1973) 6 SASR 427 at 433
R v Lewis & Baira [1996] QCA 405
Patsalis & Spathis (No 1) (1999) 107 A CrimR 432
Pernich and Maxwell (1991) 55 A CrimR 464
Piller Kramer Kramer & Edwards (1995) 86 A CrimR 249
Webb v The Queen (1994) 181 CLR 41

COUNSEL:

P Smid for the Crown
G McGuire for the accused Duong
D Lynch for the accused Nguyen

SOLICITORS:

Queensland Director of Public Prosecutions for the Crown
Ryan & Bosscher for the accused Duong
Legal Aid Queensland for the accused Nguyen

1. MACKENZIE J:  Each accused person has applied for a separate trial.  They, together with Tam Chi Ngo and Vinh Chi Pham are indicted for the murder of one Luan Minh Nguyen whose body was found in a quarry in the Collingwood Park area.  The deceased is also referred to in places in the records of interview as Tony Heal or as Hieu.  There are two other people, Dung Lam Quoc and Lam Thanh Bui, referred to in the records of interview in relation to events at the scene, but they are not indicted.  Dung Ngoc Nguyen is referred to as "old Dung" and the other Dung as "young Dung" at times in the records of interview.  Neither Tam Chi Ngo or Vinh Chi Pham have applied for a separate trial.

The Law

1. In Webb v The Queen (1994) 181 CLR 41, 88-89, Toohey J with whom Mason CJ and McHugh J agreed, described the basis of the application for a separate trial in that case as being that the other accused had made allegations in a record of interview that the appellant had engaged in a violent and sadistic attack on the deceased, and that the warning that the evidence was not admissible against the appellant could not cure the prejudice caused against him. Toohey J continued:

"King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other', ((1992) 59 SASR at 585). What King CJ referred to as 'strong reasons of principle and policy' were discussed by his Honour in R v Collie, (1991) 56 SASR 302 at 307-11. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others (R v Demirok [1976] VR 244 at 254). There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused (R v Harbach (1973) 6 SASR 427 at 433).

In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put another way, whether improper prejudice has been created against an accused.

In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed: (1992) 59 SASR at 585.

'That is a common feature of a joint trial and does not of itself render separate trials necessary'."  

1. It is sometimes said that the rule is subject to a proviso that where a joint trial would cause positive injustice to the accused a separate trial should be ordered (eg Farrell & Cotton (1990) 48 A CrimR 311; Pernich and Maxwell (1991) 55 A CrimR 464; Piller Kramer Kramer & Edwards (1995) 86 A CrimR 249; Patsalis & Spathis (No 1) (1999) 107 A CrimR 432). Reference should also be made to The Queen v Darby (1981-1982) 148 CLR 668 without exploring precisely the extent to which it, as a conspiracy case, affects the rules relating to joint trials for substantive offences. The relevant statement is as follows:

"In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v The Queen (1979) 44 CCC (2d) 481 requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other.  We would encourage the adoption of such a practice."

1. Consideration has also been given to the Court of Appeal decisions of R v Lewis & Baira ([1996] QCA 405) and R v Davidson ([2000] QCA 39). In the latter de Jersey CJ and Davies JA said the following:

"Generally there are strong reasons of principle and public policy why joint offences should be tried jointly and the mere fact that one result of joinder will be that evidence admissible against one but inadmissible against the other accused will be before the jury is not a reason for ordering separate trials. Moreover the exercise by the trial judge of the discretion conferred by s606 of the Criminal Code against separate trials for joint offenders is rarely interfered with.  That is not to say of course that the facts may never disclose such potential for unfairness that separate trials should never be ordered.  But R v Lewis and Baira is an example of a recent case in which an appeal against refusal of separate trials was dismissed in circumstances in which the evidence of one co-accused accused of rape was highly prejudicial to the other.

In Gilbert v The Queen both majority and minority judges agreed that the system of criminal justice as administered by appellate courts requires the assumption that as a general rule juries understand and follow the directions they are given by trial judges.  However the majority rejected the assumption that prejudice may not affect the jury's decision-making.  Accepting as we do that there may be some cases in which it is appropriate to order separate trials, even in a case involving joint offences, where the evidence admissible against each accused is impossible or at least extremely difficult to disentangle and the evidence against one is highly prejudicial against the other, and accepting also that there may be cases in which prejudice may cause a jury even to ignore the directions of a trial judge, we do not think that this is such a case."

1. In Lewis and Baira the court referred to passages in R v Harbach (supra) and Webb (supra) in support of the conclusion reached.  What follows is based on my understanding of the current state of the law on the subject.       

Dien Cong Duong's application

1. A ruling in favour of admission into evidence of a conversation with a friend whom the accused regarded as a spiritual adviser and a subsequent conversation with the police was made by me on 23 June 2000.  In the conversation with his friend prior to the police becoming involved he told him that he had killed someone.

1. A little time after that conversation the accused and his friend went to Goodna Police Station where the constable on duty was told that he wanted to tell the police about a man he saw killed by being bashed to death.  He was also told that the body had a plastic bag over its head.  The constable contacted the CIB. 

1. Detectives Magill and Seery then became involved in the matter.  At the CIB, Magill asked the accused what had happened.  He said that he had "strangled a fellow" (identified as Tony) who was dumped at Collingwood Park.  He asked what would happen to him.  He was told that the police would have to establish if anything had happened.  When asked if he would go to the place where the body was, the accused agreed to do so. 

1. After being advised of his rights and being told that they would go to the scene, he said "Yes, ok, I choked Tony around the neck with a cord and others bashed him with baseball bats.  They threw the body off the cliff into the water."  This conversation was not recorded electronically because at that stage the police maintained they were sceptical about the claim.  However, they went to the quarry where the body was found with a plastic bag over its head.  Electrical flex was around the body's neck.

1. While the police party was at the quarry the accused admitted being present when the deceased was attacked.  He attributed the use of the cord to an unknown person (tape page 14).  He also said that he had helped hold him down (tape page 15).  He claimed that he found out why they were going to the area where the killing occurred only when he got there (Transcript of tape page 15).

1. After they arrived back at the police station, he had a conversation with his friend while the police were out of the room.  This was at a time when the tape was running.  He claimed all that he had done was watch what had happened.  He denied knowing the names of other persons involved.

1. In the formal record of interview, he told the police that he had struck the deceased a couple of times but "left the rest of it to do".  (Transcript page 3).  He said that his purpose in going to the place was to attempt to recover some property that the deceased had taken.  He said that he had held the deceased down and that he had had his hand around the deceased's throat.  He said that afterwards he saw others hit, punch and kick the deceased.  He denied seeing the bag tied around the deceased's head, but said he saw it when the deceased was rolled off the cliff (pages 4 and 5). When the accused was told he would be charged with murder, he said that all he did was punch him. 

1. After discussion about getting legal advice the police left the room, but warned the accused that the tapes were still running.  After the police had left, the accused's friend confronted him about telling him earlier that he had strangled the deceased and urged the accused to tell the truth.  The following passage of conversation then appears (pages 7 and 8):

"DUONG:Yeah, they U/I strangled him, got him to the ground and kicked him, and after that, other than, other two came up and um, got what they want, and we left, oh we were still there, oh people were kicking him around, too many people were kicking him around, there was bats or whatever it was, tied him up, and

U/I:You just got to tell them, straight, everything you know.

DUONG:That's it.

TODD:I mean everything.  You told them one thing at the beginning and you told me one thing.  u/l the same as what you told them.

DUONG:Cause I strangled him.  Yeah.  I had my near to a strangle.

TODD:Did you strangle him to death.

DUONG:No.  He was still alive."

1. After further conversation between the two the transcript records the accused's friend apparently repeating that there was a difference between the versions he had given.  The following passage of conversation occurs (page 8-9):

"DUONG:U/I.  Strangled u/l, dropped him to the ground, kicked him a couple of times, then I think Vinh came in and kicked him, and left and just stood aside and they came out with baseball bats, and over his head, I don't think he was moving after that.

TODD:But you were there when that happened.

DUONG:Yeah.

TODD:You have got to tell them that.

DUONG:Because I was still in the car.  We were just watching it.

TODD:You were in the car.

DUONG:We were watching it.

TODD:You saw it happen.

DUONG:Hmm.  U/I.  There was 6,7 people around him, I can't be done for murder.

TODD:You have got to tell them exactly what happened, otherwise this is what they think.

DUONG:Cause when I strangled him, he was still alive."

1. Later in the conversation between the accused and his friend the following passage of conversation occurs (page 11):

"TODD:If you beat the guy up and then you got in your car, that it one thing.  If you beat the guy to death that is another thing.  Right.

DUONG:I think they did beat him to death.

TODD:You did.

DUONG:No, they.

TODD:They did.  Right.  And you weren't there.

DUONG:Oh I watched.

TODD:From where.

DUONG:From um, you know where.

TODD:You were standing there watching.

DUONG:No.  We were in the car.

TODD:You were in the car watching.

DUONG:Oh with the headlights up and we could see what was happening.  He was on the ground being.

TODD:Alright, so you saw that.

DUONG:Yes, there were baseball bats just straight to the head.

TODD:Okay.  That's U/I your a witness to a murder.

DUONG:Yeah."

1. After his friend had told him to tell the police as it was the accused said to him:

"TODD:You rang me up, I came down, you spoke to me, right.  I asked you what the problem was, you told me that this fellow had been killed.  Right.                

DUONG:         Yeah.  Executed.

TODD:Right Executed.  Whatever you want to call it.  Still killed, still dead.  As to your degree of your involvement that is one thing.

DUONG:Yeah.  I was there holding him down.  Well when I let him go he was still alive.  U/i someone else, and he was lying down so we just walked off, then I think he got up again, and started, people were starting to kick him and baseball bats or something.  The problem is that I don't know who the other people are.  U/I."

1. At this point the police officer came back into the room and allowed the accused to speak to a solicitor.  Following that, he declined to take part in the record of interview any further. 

1. There is, in the conversations to which reference has been made, arguably a variety of versions of events.  In them, he admitted to an active role in the attack on the deceased.  They included an admission that he had killed him.  They included an admission that he had strangled him and held him down.  They also include statements that the accused had a grievance with the deceased over property which the accused was trying to recover from him.  They also include statements which might be construed as lesser degrees of involvement.  One possible view of the evidence open to the jury, without reference to any other record of interview, is that the weight of guilt which caused him to seek out his spiritual adviser and confess began to dissipate later when the implications became clear. 

1. The thrust of the application is that in other records of interview, which are not admissible against him, there is evidence prejudicial to him.  Mr McGuire characterised this as evidence which attributes a greater role to the accused than he admitted in his records of interview in that he is said to have had a leading role in the killing.

1. The version given in Vinh Chi Pham's record of interview is that when they got to the scene of the killing the deceased was asked about the missing property.  When he claimed not to know about it an argument developed.  Dien was standing behind him and had a stereo cord around his neck.  Although it is not entirely clear from the record of interview it appears that at some point blows and kicks were delivered to the deceased by Pham and old Dung and that the deceased was on the ground.  Some of the blows may have been administered while he was on the ground.  Pham says that he thought that Dien and old Dung were holding the cord when it snapped when they were trying to lift the deceased off the ground.  He also says that Dien was involved in throwing the deceased into the water. 

1. According to Tam Chi Ngo's record of interview, both he and Dien had had a conversation a couple of days before the killing about assaulting the deceased because he had stolen valuable property from them.  This was also referred to in the formal record of interview where he referred to property stolen from "Dien the person who killed him".  He said that Dien asked him to go for a drive to see if they could get the property back.  Tam said that he wanted to talk to the deceased and that there was no plan to harm him.  When they got to the scene, while Tam was talking to him, Dien strangled him from behind with a piece of rope or wire and then hit him in the head with a "piece of pole".       

1. According to Tam's record of interview Vin smashed the accused with a stick (which appears to have been a rolling pin).  According to the thrust of the record of interview the "rope" broke while the deceased was struggling and Dien asked Lam to help hold the rope.  He said he saw Dien put a plastic bag over the deceased's head.  Dien took the deceased's shirt off.  Then Dien took part in disposing of the body.  He also said that when he remonstrated with Dien about what had happened, Dien threatened him with harm if he told anyone. 

1. Dung Ngoc Nguyen's record of interview is to the effect that he had a grievance with the deceased because he heard the deceased had threatened to kill him and other people.  He had been asked by Tam to go for a drive and the deceased was in the vehicle.  When they got to the place where the incident occurred, he asked the deceased why he had threatened to kill him.  He said that he had hit the deceased lightly on the back with a stick (which seems to have been a rolling pin) as a warning. 

1. Although the sequence of events is not necessarily consistent, he says that he saw Dien tying something around the deceased's neck.  He says that he played little part in the incident after striking the deceased lightly and that he was "high" on the evening in question.  He said that he had gone back to the car at an early stage in events. 

1. While the detail of events differs between the records of interview, some elements of participation by Dien in the incident which are not admitted to by him are referred to in the other records of interview.  However, the accused Dien Cong Duong had himself admitted a substantial degree of involvement including using a cord around the neck of the deceased. 

1. The medical evidence appears not to suggest that the cause of death was strangulation.  But where there are multiple accused and the case is based on s7 and s8 of the Code, the degree of involvement admitted to by the accused is not so markedly dissimilar from what the jury would hear about the accused's activities from other records of interview as to cast him in an entirely different light 

1. Given the principles stated above, no substantial basis has been made out for a separate trial for this accused.  The circumstances fall significantly short of justifying such an order.  While the various records of interview which will be before the jury vary in detail, the disparity between admissions made by the accused, at least at the outset, and the other accounts of what happened do not leave me with a concern that positive injustice would be caused to him provided an adequate direction is given as to the proper use of the records of interview.  The case is not one where disentanglement of them is difficult.  I would refuse the application.

Dung Ngoc Nguyen's application

1. The version of events given by the accused is that he had a grievance with the deceased because he had heard that the deceased had threatened to kill him and some of his friends.  He also had some feeling of grievance with him because he had been evicted from Vietnamese community accommodation because of a perception that he was associated with him.

1. It is possible that the Crown will wish to argue that there is a difference in sequence in the record of interview as to when the accused struck the deceased and when the cord was placed around his neck.  In any event by the end of the record of interview the version was that the accused had been asked by Tam to go for a drive.  The deceased was in the vehicle and when they got to the place where the incident occurred the accused asked the deceased why he had threatened to kill him.  Dung hit him lightly on the back with a rolling pin, which he had found in the street, as a warning.  He then went back to the car and took no part in what happened after that.  He claimed that he was high on heroin at the time.  This version involves a very limited part in the actual killing.  However, his presence and participation even to the degree admitted would be relevant to s8 in particular. 

1. The record of interview of Vinh Chi Pham attributed a much more active part in events to Duong.  In particular, he said that after Dien had put the wire around the deceased's neck old Dung punched and kicked the deceased in the face while he was being choked.  He also said that at one stage, Dien and Dung were holding one end of the rope each and it snapped.  This happened when they were trying to lift him up by the neck.  He also said that "the old guy" put wire around the deceased legs and went to the car to grab a white plastic bag which was put around his face, after which wire was put around his neck. 

1. There is also a reference to Dung trying to "break his knees" by kicking him in the knees.  Although this does not specifically refer to old Dung, the connection in time with the bag being put on the deceased's head may well suggest to the jury that it is an allegation against him. 

1. Apart from striking one blow to the deceased none of these matters are admitted by the accused.  The allegation in this record of interview is of a far more direct and serious involvement in the killing than can be established by evidence admissible against the accused.  The case for a separate trial in his case would, taking this into account, be stronger than that of his co-accused.  However, applying the principles referred to above it would still have been somewhat near the boarderline.

1. There is, however, one additional factor in his case which in my view tips the balance in favour of a separate trial.  The accused is the only one who was not sufficiently fluent in English to be questioned in English.  He was questioned at great length through an interpreter.  The transcript records firstly, what was asked by the investigating detective.  Then there are the Vietnamese words actually used by the interpreter.  Then follows an English translation of what was actually said by the interpreter.  The accused's answer is then printed in Vietnamese followed by a precise translation of the answer into English.  That is followed by what the interpreter told the police officer the answer was. 

1. The nature of the problem is summed up in the following paragraph from my previous reasons where it was ruled that the judicial discretion to exclude statements against interest should not be exercised in the accused's favour.  The paragraph is as follows:

"It may also be observed that the transcript shows that the process of conducting the interview had other complexities.  The transcript records the Vietnamese words spoken and gives what purports to be an exact translation into English of what was said in Vietnamese by the translator and the accused.  The transcript also includes what was actually said in English by the translator to the police officers by way of relaying the accused's Vietnamese answers.  This is often a paraphrase of what was said, which is in itself an unsatisfactory way of doing things and contrary to what should be done by a translator for the purposes of an interview of this kind."

1. Although the matter was not argued specifically on this occasion, my initial impression is that the only meaningful way in which the evidence as to what the accused said can be given is by a qualified interpreter giving an exact English translation of the question asked in Vietnamese and an exact English translation of what the answer was.  In a sense what the police officer asked and what he thought in good faith was being conveyed to the accused person in Vietnamese is superfluous if not irrelevant.  Also, the answers in English by the interpreter, which are in some cases a paraphrase of what was said by the accused are of little evidentiary value except where they convey with sufficient precision what was actually said.

1. In the circumstances, the parties may wish to consider how they approach this aspect of the case.  Whether the evidence is admitted by tendering a transcript, or is given verbally is an issue for consideration, preferably, in the absence of agreement, by the trial judge.  Since the police officer's questions, and the answers, at least to the extent that they consist of paraphrases, are of little probative value, and the rest of the conversation is in Vietnamese there seems to be little point in playing the tape recording itself.  That issue will need to be resolved but may be left for another day.  If the parties can come to some agreement, so much the better.     

1. However, the substance of my divergence into this aspect of the case is that it seems to me that the accused person, whose position is somewhat disadvantaged by what is in the other records of interview, would be further disadvantaged by having those interviews given in electronic form, when his own evidence which presents his version of events in a form which minimises his culpability will not be given in that form, in all probability.  It is true that a direction would be given that the electronic records of interview of others are not admissible against him, but in the ordinary course of events the jury would have the opportunity to hear those electronic records of interview which refer to him again during their deliberations.  His version, if given verbally, would not be available to them except upon request from them to have it re-read,  If the evidence is given by agreement by transcript, it would be available in written form.  The disadvantage would be less, but it may well be that the impact of a document is less than that of a video.  While the usual warning would be given, in my view the risk is substantially greater that the accused would be significantly disadvantaged because of the disparity between the mediums in which the respective accounts would be available to the jury.

1. While each of the factors discussed above might not, standing alone, justify a separate trial, the combination of them increases the risk of positive injustice to him.  In all of the circumstances, I consider that it is a case where a separate trial should be ordered.  

Formal orders

1. The formal orders are as follows:

1.          The application of Dien Cong Duong for a separate trial is refused.

2.          That Dung Ngoc Nguyen be tried separately from the other accused on the indictment before the court.