R v Huynh

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HUYNH
[2010] SASCFC 25
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
25 August 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF TRIAL JUDGE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
Appeal against conviction – trial by judge alone – appellant convicted of one count of aggravated serious criminal trespass, contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (SA) and one count of aggravated robbery, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) – on voir dire appellant’s counsel sought to exclude evidence of debt owing by appellant to the victim – counsel for Crown agreed to not lead that in evidence – at trial counsel for the appellant elicited the evidence from the victim – whether trial judge failed to afford procedural fairness to the appellant by not asking to be addressed on the issue before using it as a piece of circumstantial evidence – whether trial judge erred in drawing the inference that the appellant had motive to commit the offence based on the debt owing by the appellant to the victim – whether the verdicts are unreasonable or cannot be supported having regard to the evidence.
Held: Evidence of debt owed by appellant to victim was material the trial judge was entitled to have regard to – trial judge did not prevent counsel from addressing him on the evidence of the debt and it was open to both counsel to comment on that evidence – trial judge did not fail to afford procedural fairness to the appellant – trial judge did not err in drawing the inference that the appellant had motive to commit the offence based on the debt owing by the appellant to the victim – clearly open to the trial judge to be satisfied beyond reasonable doubt that the appellant was guilty of both counts – appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 137(1), s 170(2), s353(1), referred to.
M v The Queen (1994) 181 CLR 487, applied.

R v HUYNH
[2010] SASCFC 25
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J. In my view the appeal should be dismissed for the reasons given by David J. I also agree that permission to appeal should be refused on grounds 2 and 3.
SULAN J. I agree with the reasons of David J. I would dismiss the appeal. I would refuse permission to appeal on grounds 2 and 3.
DAVID J. This is an appeal against conviction. The appellant pleaded not guilty to the offences of aggravated serious criminal trespass, contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”), and aggravated robbery, contrary to s 137(1) of the Act. He elected for trial by judge alone, and was found guilty of both offences. He now appeals against those convictions. There are three grounds of appeal. Permission to appeal was granted on one ground and refused on the other two by a single judge of this Court.
It was undisputed that the victim (“MW”) was robbed of cash and a quantity of cannabis at his home during the evening of 16 July 2008. Undisputed evidence was also led that the appellant and MW knew each other well, and MW was in the habit of supplying cannabis to the appellant in exchange for money. MW’s home was heavily secured because of his enterprise of selling and supplying cannabis. It was also undisputed that, pursuant to an arrangement, the appellant knocked at the front door and it was answered by one of MW’s children. MW attended the door, and seeing the appellant through a locked screen door, he unlocked the screen door and opened it. The appellant entered through the door, and almost simultaneously, two masked and armed men also entered. The two armed men attacked MW with weapons, namely a machete and a hockey stick, and demanded money and cannabis from him. They were given money by him and took cannabis. MW described one of the men as tall and the other as stocky. It was clear and undisputed that the two men committed the offences of aggravated serious criminal trespass and aggravated robbery.
The appellant took no part during the course of the robbery. He did not make any demands or threats, and took no property. It was the prosecution case at trial that somewhere between $800-$2,000, mainly in $50 notes, and a blue shopping bag containing about 450 grams of cannabis was taken from MW.
The two masked men left first, and the appellant left a minute or so after them and went in the same direction as the two men to a car park.
MW gave evidence that there was a station wagon moving at walking speed in the car park where the robbers and the appellant went, and the appellant tried to get in the back door, which was locked. MW’s daughter gave evidence that shortly after the robbers left, followed by the appellant, she saw a car leave the car park. She described it as a silver Holden station wagon, probably a VN or a VB model. It is to be noted however that the trial judge rejected MW’s evidence that the appellant tried to get into that car. He found it proved however that MW and his daughter both saw a car of that description leaving the car park shortly after the robbery.
At about 10.45 pm, police attended at the home of the appellant, and whilst they were present, the appellant arrived in a silver Holden Commodore station wagon. The car was driven by a man (“TL”). There was a clear plastic bag containing 27.5 grams of cannabis in the front foot‑well of the car. There was another man in the car (“LS”), who had $1,250 in his possession. The appellant had a blue plastic shopping bag down the front of his pants. That bag contained 23.5 grams of cannabis.
It was the prosecution case at trial that the appellant was part of a joint enterprise to commit the offences. The prosecution argued that the appellant was familiar to MW, was unarmed and undisguised, and his role was to gain entry to the house in order to allow the other two men to enter for the offences to be committed. The prosecution sought to prove their case by way of circumstantial evidence.
At trial, the appellant gave evidence and called a witness (“AL”). The appellant denied any involvement in a joint enterprise. He gave evidence that he had been taken to MW’s home by AL for the purposes of obtaining cannabis. AL waited in the car while he went to the front door of MW’s home, and when the door was opened to him the masked men appeared without warning and without his agreement. The appellant gave further evidence that after he left he went to seek cannabis from another source. He contacted the person TL for that purpose. TL came to him in a silver Commodore station wagon in the company of LS. The appellant purchased an amount of cannabis from TL for $240. His evidence was that that was the cannabis which he had in his possession when seen by the police in company with TL and LS in a silver Commodore station wagon.
At trial, AL gave evidence that he was asked by the appellant to give him a lift to get some cannabis, and he did so. He said this was the only time he had given the appellant a lift anywhere. He gave no specific evidence about where he drove the appellant, apart from saying that it was a place in the western suburbs. He said that he was driving his red Holden station wagon. He gave evidence that he waited in the car for the appellant to get cannabis. He said the appellant returned in a shaken state and said he had witnessed a robbery, and then they left.
At this stage I point out that the trial judge categorically rejected the evidence of AL. In particular, AL was cross-examined about the registration of his red Holden station wagon, which he said he was using on the date of the robbery. He said that that vehicle was registered in his girlfriend’s name. In evidence produced in rebuttal, it was established that as at 21 December 2007 the car was registered in the name of another person, to whom AL had sold the car.
The trial judge also found that he did not believe the appellant to be a witness of truth. That finding is not the subject of this appeal, and the trial judge properly directed himself that the conclusion he had reached about the appellant’s credibility does not add to the weight of the prosecution evidence. It is his decision in relation to that that is one of the grounds of appeal.
The judge’s reasons
The trial judge carefully considered the question of whether the charges against the appellant had been proved beyond reasonable doubt by acknowledging that the case against him was based entirely upon circumstantial evidence. He gave himself careful and undisputedly accurate directions as to the approach to be taken when considering a case based upon such evidence. He correctly directed himself as to the requirement of the onus of proof, especially in regard to circumstantial evidence. He then went about his task by identifying those facts which he found proved. In all there were eight. I set them out:
1.The appellant was a heavy user of cannabis and wanted some cannabis that day. MW said the appellant owed him about $2,000 for previously supplied cannabis. The appellant knew that MW had plenty of cannabis.
2.The robbers appeared at MW’s front door “virtually simultaneously” as the formerly locked door was opened.
3.The appellant left the house about a minute after the robbers left.
4.The appellant went in the same direction as the armed robbers.
5.Just over three hours later, the appellant was found by police in a car fitting the description of the car seen leaving the scene of the robbery. That description of the car leaving the scene was given at trial by MW and his daughter.
6.TL, who was a tall man, was driving the car in which the appellant was located at 10.45 pm. He was estimated to be 6’ 8” tall. A tall man had been observed driving a similar car from the scene, and one of the robbers was described as tall.
7.LS, who was a passenger in the same car as the appellant at 10.45 pm, was in possession of $1,250 cash, made up principally of $50 notes. MW had had at least $800 stolen from him, of which about 85 per cent was made up of $50 notes.
8.At 10.45 pm, the appellant was found in possession of a quantity of cannabis in a bag fitting the description of the one containing the stolen cannabis.
Having identified those eight facts, the trial judge concluded:
I find the combination of the second, third and fourth circumstantial facts very persuasive of the accused’s involvement with the two robbers. In the light of facts three and four it is, in my view, no coincidence that the robbers were at the front door as soon as it was opened to the accused. The men arrived almost at the same time as he got admitted to the house and later he left remarkably quickly after them and followed in their direction. He says he was frightened by what the men did inside the house, yet he followed almost immediately after them. There is no rational explanation for him leaving so quickly and following the robbers other than that he was involved with them. The proximity of the arrival and departure of the three men is persuasive of their having a common purpose.
Far from being contradicted by the other evidence, the evidence of the accused being discovered by the police three hours later tends to confirm his involvement with the robbers. He is in possession of cannabis contained in a bag similar to the one in which the stolen cannabis was contained. The disparity in the amount of cannabis stolen and that found on the accused may be explained by the three hours which had elapsed between the robbery and the discovery. The rest of the cannabis could have been hidden elsewhere or traded. A small amount might have been consumed. Further, the accused was in a car similar to the one seen leaving the scene. Although of limited evidentiary value, one of the accused’s companions had in his possession a substantial amount of cash in the same denominations as the money stolen from [MW].
In the end, I find that a combination of circumstantial facts two, three and four is sufficient, in combination with the added weight to be gained from circumstantial facts one, five, seven and eight to satisfy me beyond reasonable doubt that the accused was part of a joint enterprise with the two masked robbers to commit the robbery on [MW] and his daughter. I find that his guilt is not only a rational hypothesis but it is the only rational hypothesis. In doing so, he is guilty of counts one and two on the Information. I find the accused guilty of each count on the Information.
Grounds of appeal
The grounds of appeal are:
1.There has been a miscarriage of justice in that the Learned Trial Judge failed to accord the appellant procedural fairness before drawing an inference that the appellant had a motive to commit the offences based upon evidence as to a debt owed by the appellant to [MW].
Permission has been granted to argue this ground.
2.There has been a miscarriage of justice as a result of the Learned Trial Judge drawing an inference that the appellant had a motive to commit the offences based upon evidence as to a debt owed by the appellant to [MW].
Permission has been refused and is now sought to be argued on this ground.
3.That the verdicts are unreasonable or cannot be supported having regard to the evidence.
Permission has been refused on this ground and is now sought to be argued. I deal with each in turn.
Grounds 1 and 2
Both grounds are covered by the same argument, and it is convenient to deal with them together. On a voir dire hearing and before the trial proper, counsel for the appellant sought to have excluded evidence to the effect that at the time of the robbery the appellant owed MW about $2,000 for previously supplied cannabis. During argument, counsel for the Crown indicated he would not lead evidence as to an amount of money owing, but said the following while addressing the trial judge on the voir dire:
MR FOWLER‑WALKER:      The Crown case is that the accused knew that [MW] had cannabis and came over with the joint enterprise, so it’s not the Crown case that the accused was out of money and then proposed to rob the complainant on that basis. So in that sense it’s not relevant to how the prosecution, whether it’s to lead evidence by the complainant.
HIS HONOUR:     So you do not seek to lead any of those three sentences?
Consistent with that approach, when MW gave evidence in chief there was no mention of the debt of $2,000. However, when cross-examined, the following questions were asked and answers given by MW:
HIS HONOUR:     The witness hasn’t said he had any notes so you can’t ask him where he kept the note.
A.It is done by verbal, sometimes I would go to Daniel’s and I wouldn’t have anything to smoke and he would give some to me. Sometimes I would give to people and when I go around there they would fix you up next time, it might be six months down the track they couldn’t get any but they would let me know when they got some.
Q.As at 16 July 2008 did Daniel Huynh owe you money for the supply of cannabis by you to him.
A.Yes.
Q.How long had he owed you money.
A.He owed it for a long time.
Q.How much.
A.Close to $2,000, that’s what I paid for and never got it back.
The question of a debt of about $2,000 owed by the appellant to MW was not mentioned again at trial, and in particular there was no cross-examination of the appellant on the topic.
Mr Muscat, for the appellant, now argues that in setting out the first circumstantial fact the trial judge has not afforded procedural fairness to the appellant because of the concession made by the Crown on the voir dire that evidence would not be led as to the debt being a motive for the appellant to rob MW. Mr Muscat argues that although the evidence of debt arose in cross‑examination, nevertheless, the trial judge should have at least invited counsel to address him on it before using it as a piece of circumstantial evidence. He therefore argues in relation to the first two grounds that there was both procedural unfairness and an error in drawing an inference that the motive to commit the offences was based on a debt.
In my view, both of the arguments have no substance. The Crown adhered to their indication that they would not lead evidence of the amount of the debt, but the appellant cross-examined on the topic even though it had been excluded. Mr Muscat argues that the purpose of the cross-examination was for a reason other than a question of motive. It is to be noted that in relation to the first substantial fact the trial judge directed himself accordingly:
I find these facts proved. These facts do no more than provide a possible motive for the robbery. The accused needed cannabis. He knew that [MW] had plenty. He owed [MW] money for earlier supplies but there is no evidence that [MW] had refused him credit. The accused may have had money to pay for what he required. He said he did have but I am not willing to rely on that evidence. I am not however willing to find that he did not have money. Taking alone these circumstantial facts are slight in proof of the accused’s guilt.
As can be seen, the question of motive involved the appellant’s desire for cannabis, rather than money owed. At most, the question of the debt, which was raised by the defence in cross-examination, would only be used by the trial judge to emphasise that aspect of the motive which was attached to the appellant’s heavy use of cannabis, but after it was cross-examined into evidence, it was material that the trial judge was entitled to have regard to. As it was, it was of slight significance.
I am also of the view that there was no procedural unfairness. The trial judge did not prevent counsel from addressing him on the topic of the debt and possible motive. The Crown conceded that they would not lead the debt in evidence going to the question of motive, but after it was cross-examined into evidence it was something that all parties were entitled to deal with. As it is, it was of slight significance.
I would dismiss ground 1 and I would refuse permission to appeal on ground 2.
Ground 3
The appellant argues that the verdicts of the judge were unsafe and unsatisfactory. Pursuant to s 353(1) of the Act, he argues that this Court should allow the appeal because the verdicts are “unreasonable or cannot be supported having regard to the evidence”.
The test to be applied by an appellate court when considering s 353 of the Act has been set out in a number of authorities, including M v The Queen where the majority said: [1]
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
Such observations also apply to a trial by judge alone.
[1] M v The Queen (1994) 181 CLR 487 at 493.
Applying those principles, the appellant argues that the verdict was unsafe and unsatisfactory. Mr Muscat argues that the judge in his reasons indicated that “facts two, three and four” (as he described them) in combination were of more substance than the remaining five circumstantial facts. It is to be noted that the trial judge indicated that:
·the first substantial fact (motive) was only of slight significance;
·the fifth circumstantial fact (the appellant being seen in a similar car some three hours after the robbery) was of limited weight;
·the seventh circumstantial fact (the cash found in the car in the possession of LS) was not of any great significance;
·the eight circumstantial fact (the cannabis being found on the appellant in a similar bag some three hours later) was of limited weight; and
·the sixth circumstantial fact (the height of the man driving the car) was of no significance to the prosecution.
Mr Muscat therefore argues that facts two, three and four are of vital importance to the trial judge’s conclusion of guilt. In short, Mr Muscat argues that the facts that:
·the robbers came in shortly after the appellant entered the unlocked door (fact two);
·after the robbery, the appellant left the house only about a minute after the robbers had left (fact three); and
·then went in the direction of the robbers to the same car park (fact four)
were unremarkable and not significant, and are equivocal and incapable of producing guilt beyond reasonable doubt. He further argues that any of the other remaining proved facts, to which the trial judge afforded lesser significance, could not alter the situation.

I disagree. Applying the test in M v The Queen,[2] and looking at the whole of the evidence, it was clearly open to the trial judge to be satisfied beyond reasonable doubt that the accused was guilty of both counts. Although the trial judge has categorised the importance of the different circumstantial facts, even disregarding his rejection of the appellant and his witness, the circumstantial case against the appellant is a particularly strong one. I come to that conclusion having made an independent assessment of the evidence, even bearing in mind the “natural limitations” that exist in undertaking that task by virtue of the fact that I have not observed the witnesses as the trial judge did. I agree with the trial judge’s assessment of each of the independent pieces of circumstantial evidence, in particular:
1.Even disregarding the debt of $2,000, there was a clear motive to commit the robbery. As the trial judge indicated, that of itself is not significant, but it is a matter that can be regarded when looking at the evidence as a whole.
2.I find that the trial judge was correct in regarding the timing of the appearance of the appellant with that of the robbers as being significant. The house was barricaded and the appellant, because of his pre‑arranged meeting with MW, was able to gain access. I agree with the trial judge it was more than mere coincidence that the two robbers appeared at almost the same time that the door was opened.
3.Similarly, I agree with the trial judge that the appellant leaving the house within a very short time of the robbers is also significant, as is his going in exactly the same direction to the same car park as the robbers (circumstantial fact four).
4.The trial judge regarded the evidence that the appellant was seen some three hours later in a car fitting the description of a car seen leaving the scene of the robbery of limited weight taken alone. Nevertheless, it was an important fact to be regarded when looking at the evidence as a whole, and in my view, was an important factor.
5.I agree with the trial judge’s assessment that the fact that one of the robbers was tall, and the driver of the vehicle in which the appellant was seen three hours later was also tall, is of very little, if any, significance.
6.I agree with the trial judge that the amount of money in possession of LS is not of great significance, but nevertheless, it is a factor to be regarded when looking at the evidence as a whole.
7.I agree with the trial judge that the possession of a quantity of cannabis found on the appellant in a bag fitting the description of the one stolen some three hours before is of some significance. I would even put it a little higher than that.
[2] M v The Queen (1994) 181 CLR 487 at 493.
In my view, when looking at the evidence as a whole, and applying the proper test as to the approach to be taken when considering a case based upon circumstantial evidence, as the trial judge did, there was a clear case justifying the judge’s verdicts.
I would refuse permission to appeal on this ground.
Conclusion
I would dismiss the appeal.

[2010] SASCFC 25

25 August 2010

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