R v Hoang Dinh Tran
[2002] VSCA 29
•27 March 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 214 of 2001
| THE QUEEN |
| v. |
| HOANG DINH TRAN |
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JUDGES: | CALLAWAY, BUCHANAN and VINCENT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19 March 2002 | |
DATE OF JUDGMENT: | 27 March 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 29 | |
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Criminal law – Evidence – Directions to jury concerning evidence of identification – Distinction between reliability and credibility – Only partial exception taken – Whether miscarriage of justice – Retrial directed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | K. Robertson, Solicitor for Public Prosecutions |
| For the Applicant | Mr G.J. Thomas | Victoria Legal Aid |
CALLAWAY, J.A.:
The applicant was found guilty in the County Court on one count of aggravated burglary, three counts of false imprisonment, one count of armed robbery, one count of theft, two counts of recklessly causing injury and one count of common assault. He was sentenced to a total effective sentence of two-and-a-half years' imprisonment with a non-parole period of 15 months. He seeks leave to appeal against conviction.
There are two grounds of appeal. Ground 1 is that the learned trial judge failed adequately to direct the jury in relation to identification evidence. Ground 2 is that his Honour erred in failing to discharge the jury upon its becoming known during the trial that (a) a Crown witness had made a photofit, (b) the same Crown witness had failed to identify a co-accused and (c) another Crown witness had made a second statement. In my opinion ground 1 is made out. It is unnecessary to say anything further about ground 2. It would not result in a judgment and verdict of acquittal and the three matters referred to will be known in advance at a new trial.
Shortly after 1.15 a.m. on 12th May 1999 three men broke a window and entered a residential unit in Sunshine. Present in the unit were Vy Nguyen, her 14-year-old daughter Lan Thuy Pham and her nephew Linh Boa Hoang. (I shall refer to them for convenience as Nguyen, Pham and Hoang.) Hoang was woken by the sound of breaking glass, turned on his light and opened the lounge-room door. He saw two men enter that room via the window, one holding a long knife and another a sword. He retreated into his bedroom, shutting the door behind him, but it was forced open and two men entered his room.
Nguyen was also awakened by the noise of breaking glass and went towards the loungeroom to investigate. She saw two men going towards her nephew’s door but was pushed to the ground by a third man before she was able to escape. She and Pham were then forced into Nguyen’s bedroom and covered with a blanket on the bed. Her jewellery was removed. Hoang was also brought into the room and covered with a blanket. The house was ransacked and injuries were inflicted on both Nguyen and Hoang.
The Crown case turned on Hoang’s evidence that the applicant was one of the intruders, identified as “Man 2”, and on evidence from the applicant’s former girlfriend that he had given her a VCR identified with property stolen from the premises on the night in question.
Accordingly this was a case where the identification evidence was crucial.
Hoang had described the intruders when the police attended at the premises and he participated in the production of a computer photofit the next day. Four weeks later he was shown a photo board, on which he said that No. 7 out of 12 was Man 2. Despite the fact that his statement to the police on the night and the computer photofit tallied better with one of the alleged co-offenders than with the applicant, Hoang gave evidence that he was 100% sure of his identification from the photo board and confident that the applicant was Man 2.
In the course of his charge the learned judge explained to the jury that he was bound to give them a warning, both in general terms and dealing with particular aspects of the case, in relation to Hoang’s identification evidence. There followed a general warning of which no complaint is made. It included the essential point that honest and confident witnesses make mistakes.
It is the warning that followed with respect to particular aspects of the case that is the genesis of ground 1. Of that specific warning four criticisms were made: first, that, instead of giving the jury a direction with the authority of his office as to potential weaknesses in the identification evidence that they were bound to consider[1], his Honour proceeded to a discussion of the various factors, for and against, affecting Hoang’s evidence; secondly, that, in doing so, he placed too much emphasis on the confidence with which Hoang had given his evidence; thirdly, that there was an unacceptable risk that the jury would have concluded that the critical issue for them to consider was Hoang’s credibility as opposed to his reliability; and, fourthly, that his Honour did not deal adequately with the way in which the computer photofit might be thought to cast doubt on the identification of the applicant from the photo board. It was submitted that those alleged defects were not remedied by a re-direction that was given.
[1]Cf. Domican v. R. (1992) 173 C.L.R. 555 at 562.
There is little to be gained by a minute analysis of the impugned portion of the charge, the exceptions that were taken and the re-direction. The third criticism and some of the other difficulties in the charge will be illustrated if I set out one paragraph and refer to the context in which it appears.
His Honour began the warning dealing with particular aspects of the identification evidence in the instant case by acknowledging that, in the course of the general warning he had given, he had already referred to two particular features of it. He said that he would now deal with others and that they were matters that the jury should include in their careful scrutiny. He continued:
“The first thing is, of course, to evaluate Hoang himself as a witness, whether you think he is credible and reliable. And on that point, I have already mentioned the arguments, and I will not do it in detail again, but there is no doubt he was not a brilliant witness about various aspects, and the cross-examination demonstrated various forgetfulness and inconsistencies with prior statements, and we have been through all that, but your function, I suppose, is to decide whether that is simply the human fallibility I have been talking about, whether that is just human nature in dealing with matters that are not, perhaps, as critical as the identification itself, and whether you accept his confident identification, on the one hand, notwithstanding the fact that he got a number of peripheral things – or he was inconsistent about, and caught out on, a number of other matters. So they are the two ways of looking at it, and you will have to decide. In the end, whatever you think about him, you have to decide, is he lying about the identification, or is he sufficiently uncertain about it, that you cannot accept it beyond reasonable doubt, or is his credibility sufficiently affected, or diminished, by the totality of his presentation, that you would not accept what he said beyond reasonable doubt. They are the matters you have to consider about him. Of course, he, himself, as we have discussed, was perfectly confident, a hundred per cent, that it was No. 7.” (Emphasis added.)
Examples of Hoang’s confident testimony were then read to the jury, followed by a discussion of other features of the case that had the potential to throw doubt or confusion on his identification.[2]
[2]It was conceded below and again before us that, in the course of the charge, his Honour referred to all the potential weaknesses in the identification evidence.
It is apparent that, in the first part of the paragraph that I have set out, his Honour did not convey what he intended. He said that he had explained two ways of looking at Hoang’s evidence but only one way had been described and it was favourable to the Crown. The words preceding the italicized passage are to the effect that human fallibility might explain the witness’s evidence on peripheral matters but the jury might accept his evidence of identification. That was not, of course, the same human fallibility to which reference had been made in the general warning. The point that had been made there was that human fallibility might render the identification evidence unreliable. Accordingly the specific warning began not only with passages from Hoang’s testimony but also with a suggestion as to how they might be accepted notwithstanding errors and inconsistencies.
Of greater significance is the passage that I have italicized. Juries are usually alert to any intimation as to what it is that “in the end” they “have to decide”. It may be assumed, therefore, that the italicized words are of special significance. Even if the jury did not follow other things that the judge was saying, they would have understood that that passage identified the critical issue. Unfortunately it directed them to the wrong questions. They did not have to decide whether Hoang was lying. There was little attack on his credit[3] but, as commonly happens, a sustained attack on the reliability of his evidence. They did not have to decide whether he was sufficiently uncertain about it. Whatever else might be said of his evidence, he claimed to be 100% sure. They did not have to decide whether his credibility was sufficiently affected, or diminished, by his presentation so that they “would not accept what he said”, but rather whether the weaknesses in the identification evidence so detracted from its reliability that it could not be accepted to the requisite standard.
[3]There was some, but counsel could identify only two places in the many pages of cross-examination and, more importantly, the judge himself thought the gravamen of the attack was on the reliability of the evidence.
It is unnecessary to decide whether all the criticisms made of the charge are justified. Had it stood alone, the first alleged defect may have been remedied by the re-direction. Mr McArdle submitted that the paragraph I have been discussing did not form part of the specific warning, but, if that is so, I do not think that it would have been appreciated by the jury. The essential points that honest and confident witnesses make mistakes and that it is reliability, as much as and usually more than credibility, that has to be assessed were obscured. In other respects, too, the charge as a whole was far from clear on the crucial matter of identification.
Mr McArdle pointed out that, although exception was taken, it was not directed to the distinction between credibility and reliability. It was concerned more with the need to make clear to the jury that they were bound by the Domican warning and by inadequacies that were said to affect the way in which the judge had dealt with the computer photofit and its potential to cast doubt on Hoang’s identification of the applicant. I accept that it may be inferred from counsel’s silence that the charge sounded better delivered orally than can be gauged from the transcript, but I am equally persuaded that there was a miscarriage of justice in the sense that the applicant was deprived of a chance of acquittal that would have been fairly open to him had the judge directed the jury in more conventional terms and not misstated the issue which “in the end ... [they had] to decide”.
It is for these reasons, briefly stated because there is a need for expedition with this application, that I would grant leave to appeal, allow the appeal, quash the convictions and direct that there be a new trial.
BUCHANAN, J.A.:
I agree with Callaway, J.A.
VINCENT, J.A.:
I agree for the reasons advanced by Callaway, J.A. in his judgment.
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