R v Lam Bui

[2001] QSC 223

SUPREME COURT OF QUEENSLAND

CITATION:

R v Lam Bui [2001] QSC 223

PARTIES:

THE QUEEN
v
LAM THANH BUI
(applicant)

FILE NO:

86 of 2001

DIVISION:

Trial Division

DELIVERED ON:

29 June 2001

DELIVERED AT:

Brisbane

HEARING DATE:

25 May 2001

JUDGE:

Mackenzie J

ORDER:

The application for a separate trial for the applicant Lam Bui is refused.

CATCHWORDS:

CRIMINAL LAW – JOINT OFFENDERS – MURDER – application for separate trial – whether principles for  separate trial in  R v Baartman apply – whether the reception of  evidence admissible against co-accused but inadmissible against the applicant would endanger the applicant’s prospects of a fair trial – whether risk of positive injustice

Criminal Code; s592A, s606

R v Baartman (NSW CCA 6 October 1994)
R v Dien Cong Duong and Dung Ngoc Nguyen [2000] QSC 266
R v Middis (SC NSW Hunt J 27 March 1991)

Gilbert v The Queen (2000) 170 ARR 88
The Queen v Pillar & Others (1986) ACrimR 249

COUNSEL:

A Rafter with G Seaholme for the Crown
T Ryan for the accused

SOLICITORS:

Director of Public Prosecutions (Qld) for the Crown
D McMillan  Solicitor for the applicant

1. MACKENZIE J:  This is an application pursuant to s592A and s606 of the Criminal Code that the applicant be tried separately from Dung Ngoc Nguyen and Dien Cong Duong.  The basis of the application is that a joint trial would bring about a risk of positive injustice to the applicant, because the reception of evidence at a joint trial admissible against Duong and Nguyen, but inadmissible against the applicant would endanger the prospects of his fair trial. 

1. This is one of a series of pre-trial applications in regard to an alleged murder.  In R v Dien Cong Duong and Dung Ngoc Nguyen [2000] QSC 266 I stated the relevant principles for separate trials. Since both counsel accept that statement of the law, I will not repeat it. Mr Ryan also relies on principles stated by Hunt J in R v Middis (SC NSW 27 March 1991), adopted by the New South Wales Court of Appeal in R v Baartman (NSW CCA 6 October 1994) where the following propositions are stated:

(a)where the evidence against an applicant for a separate trial is significantly weaker than and different from that admissible against another accused; and

(b)where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and

(c)where there is a real risk that the weaker Crown case against the applicant will be made measurably stronger by reason of the prejudicial material;

a separate trial will usually be ordered in relation to the charges against the applicant.   However, the applicant must show that positive injustice would be caused to him in a joint trial.

1. The applicant's argument requires a summary to be given of the state of the evidence against the applicant.  The Crown proposes to call Vinh Chi Pham who has already pleaded guilty to minor involvement in the matter.  His evidence is expected to be that the applicant travelled in the car with the group to a house where the deceased was.  The applicant and another person went to the front door but the deceased would not come out.  They then went back to Tam Ngo's house where sticks and pieces of wood "to scare" the deceased were obtained.

1. They then returned to the deceased's house.  On this occasion the deceased joined them in the car.  The applicant travelled in the car with the others to the scene of the killing.  After the deceased had been persuaded to get out of the car, the sticks and a cord were obtained from the car by persons other than the applicant and the cord was used to strangle the deceased until it broke.

1. Pham's account is that while the deceased was on the ground "everyone" started to kick or punch him all over his body.  After a few minutes they stopped and someone other than the applicant went back to the car to get some electrical wire.  A plastic bag was also obtained and placed over the deceased's head.  The deceased was tied up at this time. 

1. Pham's account was that while the deceased was on the ground in this state the applicant started to kick him in the face with his heel, saying he wanted to break his nose so he could not breathe.  The inside of the bag became covered with blood.  When a suggestion was made by another person that the deceased should be thrown over the cliff, Pham says he helped the applicant with the legs when he was moved towards the edge of the cliff.  At this time the deceased was apparently still alive since he was shaking but having trouble breathing.

1. Pham says that "everyone" helped push him towards the edge.  A person other than the applicant actually pushed him over the edge.  Pham says that he and the applicant stayed at the top of the cliff while the others went to the bottom.  When they returned the applicant was let out of the car on the way back to Tam Ngo's house.

1. If this version is accepted there is direct evidence of the applicant's involvement in the incident.  However, for reasons which appear below, this evidence is uncorroborated in so far as it relates to the applicant. 

1. The applicant participated in a record of interview through an interpreter.  At first he denied being present when the deceased was being assaulted.  He said at one point, during the interview that he was scared of implicating anyone.  He repeated this later on several occasions during the course of the interview. 

1. Later in the interview he admitted being at the scene but said that he was not involved with the deceased and did not do him any physical harm.  He said that there had been a conversation about getting back his brother's mobile phone which had gone missing while the applicant had it.  Apparently the applicant had been told that the deceased was responsible.

1. When the applicant was shown items that had been recovered from the scene he said he saw the deceased being strangled.  He said that he had been given a stick and invited to hit the deceased but had declined. 

1. In the latter part of the record of interview he gave more detail.  He said he was told by others the deceased had taken the mobile phone.  They had persuaded him to ask the deceased to return it but the deceased said that he had pawned it.  He said he thought that the others would try to provoke the deceased to hit him and take the opportunity to kill the deceased.  However the deceased did not hit him. 

1. He said that at the scene the deceased had got out of the car and was subsequently killed.  He repeated that he had been given a stick after the others had hit the deceased but did not use it.  He said that he asked the others to let the deceased go but was told that they would not because he had threatened to kill their families.  He said that he saw him being strangled and thrown into the water but was not involved in doing so.

1. The applicant's argument is that the evidence against the applicant is significantly weaker than and different from that admissible against Duong, because Duong had made significant admissions during his questioning.  Further, Duong's interview contained material highly prejudicial to the applicant, although not admissible against him.  Further, the evidence against Duong which was inadmissible against the applicant was contained in electronically recorded form. 

1. As explained above, the case against the applicant rests principally on the evidence of Pham.  The applicant's record of interview involves a denial of involvement except to the extent that he was at the scene and asked the deceased for the phone back, believing that that might provoke a fight.

1. The underlying proposition in connection with Duong's evidence is that it will paint a picture that all of those who were present attacked the deceased.  The particular references to the transcript of the interview are referred to in the written submissions.  It is conceded that the applicant was not mentioned by name in Duong's interview.  However, it is submitted that the clear implication is that all who were present participated in the killing of the deceased.

1. The point about what was said by Duong is, however, that Duong speaks only in generalities, usually employing the notion that "all" did things which are also described in generalities.  In my view, because what is said is very general there would be little difficulty in giving a broad direction to a jury about the difficulty involved in relying on general statements without any detail to form conclusion that any particular person was involved in any particular aspect of an incident.  It would also be easy in this case to quarantine the evidence admissible against each accused by telling the jury precisely what they could take into account in deciding the guilt of an individual accused.  In the case of the applicant it would be the evidence of Pham together with such assistance as they could get from his own record of interview.  If that is done the assumption is that as a general rule juries understand and follow the directions they are given (Gilbert v The Queen (2000) 170 ALR 88).

1. With respect to Nguyen's record of interview it is accepted that he does not name the applicant by name.  However, the argument is that it was necessarily implicit at least in some instances in the passages referred to in the submissions that the applicant had participated.  On one occasion the phrase used is only "other people" without any reference to how many and with regard to another of the references, he simply says that the others remained at the scene after he left and he did not see what was done after he left.  The same comments with regard to directions as those made with regard to Duong's evidence are applicable in this case as well. 

1. So far as the form of the records of interview is concerned it is submitted that the applicant will be disadvantaged because the records of interview of Nguyen and Duong will be before the jury in electronic form, having been taken in English.  Because of the way in which the applicant's record of interview was taken, it may not go before the jury in electronic form.  It was taken through an interpreter, and while my understanding is that the way in which it will be dealt with is not finally resolved, that may create a problem about it going before the jury in electronic form. 

1. The applicant relies on the observations of Dowd J in TheQueen v Pillar & Others (1986) ACrimR 249, 254 in support of the proposition. It is submitted that there will be positive injustice to the applicant because Duong's and Nguyen's records of interviews which, by implication, involve the applicant in the attack, would be before the jury in a form where they could be replayed whereas, if his is not before the jury in that form, it will not be capable of being replayed by them at will.

1. It is submitted that it would be easy for the jury, notwithstanding an appropriate direction, to infer that because each had said that all of the others were involved, the applicant must have been involved.  It is submitted that in the case of Duong, the prosecution will rely on the evidence of Pham and Duong's interview with the police.  It is submitted that there is corroboration of Pham's evidence in Duong's own admissions.  In the case of Nguyen, the Crown case will gain some strength from the admission made by Nguyen that he struck the deceased with a stick.

1. It is submitted that the applicant's case may be contrasted against those situations because the uncorroborated evidence of Pham is critical.  Since the applicant's interview essentially amounts to a denial of any responsibility for the killing, a risk of positive injustice may incur. 

1. A scenario is painted that the jury is likely on a joint trial to approach its task by first examining the strongest case for the Crown, namely Duong's.  The jury, having been directed to scrutinise Duong's statement to determine if any parts of it corroborated Pham's evidence, would find it difficult to avoid using other parts of Duong's statements when assessing the case against the applicant.  The submission is that it would be impossible to expect the jury to be able to comprehend the subtlety of the task of examining Duong's interview for evidence corroborating Pham, yet disregarding completely Duong's admissions as implicating the applicant, by implication from the general statements that all were involved. 

1. It is submitted that if the jury acts upon Duong's confession it is likely that it would proceed to assess the evidence on the basis that there was an attack by many people implicitly including the applicant.  Notwithstanding adequate directions they may regard it as logically inconsistent for them to convict Duong, yet acquit the applicant.

1. In my view, applying the principles applicable to separate trials a case has not been made out that the ordinary rule that persons alleged to be joint offenders should be tried jointly has been displaced by anything that has been submitted on the applicant's behalf.  I therefore refuse the application for a separate trial for the applicant Lam Bui.