R v Lu; R v Pham

[2007] NSWSC 1141

CITATION:	R v Lu; R v Pham [2007] NSWSC 1141
HEARING DATE(S):	16 July 2007
JUDGMENT DATE :	16 July 2007
JUDGMENT OF:	Price J at 1
DECISION:	Order that Lu and Pham be tried separately.
CATCHWORDS:	Criminal law - applications for separate trials - real risk of positive injustice in joint trial.
CASES CITED:	Regina v Jon Leslie Baartman (unreported NSWCCA 6 October 1994) Regina v Georgiou [1999] NSWCCA 125 Regina v Stephen Frederick Middis (unreported NSWSC 27 March 1991) Regina v Pham [2004] NSWCCA 190 Webb v The Queen (1994) 181 CLR 41
PARTIES:	Regina Hoang Quang Lu Dinh Khoung Pham
FILE NUMBER(S):	SC 2006/1992; 2006/1991
COUNSEL:	R Button SC - Hoang Quang Lu P Young SC - Dinh Khuong Pham G Tabuteau - Crown

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

PRICE J

16 July 2007

2006/1992 Regina v Hoang Quang Lu
2006/1991 Regina v Dinh Khuong Pham

JUDGMENT

1 HIS HONOUR: The two accused, Hoang Quang Lu (Lu), and Dinh Khuong Pham (Pham), are charged with the murder of Phillip Anthony Rousianos on 1 October 2005. Pham is further charged with the assault of Sophie Rousianos on the same day.

2 Applications have been made by each of the accused that they be tried separately from each other.

An Outline of the Crown Case

3 The Crown case commences with an incident which occurred about a month before the alleged murder when the deceased and his girlfriend went over to Lu's premises in the early hours of the morning. The deceased's girlfriend knocked on the front door, and an argument ensued when Lu's girlfriend refused to wake him. Some four-letter words were exchanged, and the deceased's girlfriend returned to the deceased's car. Lu's girlfriend followed her and the argument continued. The deceased emerged from the car and it seems struck Lu's girlfriend. When Lu arrived the deceased then struck or kicked him.

4 The deceased and his girlfriend left the scene and returned to their home unit, which was a couple of streets away. Whilst they were in the driveway Lu arrived and threatened the deceased with a machete. When the deceased's father and 15-year-old brother Dannis intervened Lu then left.

5 The evidence concerning the prior incident is the subject of an objection by Mr Button SC on the part of Lu. It is unnecessary for present purposes to determine that objection.

6 On Saturday 1 October 2005 the deceased with his mother and brother Dannis was walking to the Westfield shopping centre in Liverpool sometime between midday and 12:30pm. When they were near Liverpool Boys' High School Dannis saw Lu driving his car. He said to the deceased: "Phil, there is Wayne driving past."

7 Lu, who was known as Wayne, was the only one in the vehicle. A short time later Lu's car pulled up behind. Lu was driving and Pham was in the front passenger seat. When Lu and Pham got out of the vehicle Dannis told the deceased to run, which he did. He ran around the corner and jumped the gate for the fence of a residential property and went towards the front door.

8 Pham, with Lu about two metres behind him, ran towards the deceased's mother. As Pham got to her, he punched her in the face. The deceased was then at the doorstep of the house. Pham ran back to the passenger side of the car and Lu was standing at the fence. When Pham got out of the vehicle he was carrying what was described by Dannis as an object with a black handle. The Crown contends that object was a knife.

9 It is the Crown case that both Pham and Lu jumped the fence and ran towards the deceased, who was at the front of the door. Lu was seen by Dannis to punch the deceased to the face and Pham was standing next to the deceased. They were seen to run down the side of the house, jump the fence and get into the car, which drove away with Lu at the wheel.

10 The deceased walked over to the fence and said, "Call the ambulance." There was blood on his shirt and in the centre of the chest. The deceased fell to the ground. Dannis jump over the fence and turned his brother over. He could see there was a silver blade sticking out of his chest. The blade was broken and Dannis could see about two centimetres of it. The deceased died a short time later.

11 Lu, that afternoon, went to the Liverpool Police Station and entered into an electronic record of interview (ERISP). Lu's account in the ERISP of the event a month earlier includes that the machete was a fake and on the following morning that he told the deceased's father, "What's done is done, forget it." He told police that on 1 October he and Pham were travelling by car to Westfield when he saw the deceased and said, "This guy, last time he hit my wife." He recounts that Pham said, "Hang on, stop." So they parked and Pham jumped out of the car. Pham chased the deceased and they both jumped over the fence. Lu said he followed behind and had a metal pipe in his hand. He tried to climb over the fence but could not. The deceased he heard saying, "Call the cops. Call the cops. He's got a knife. Call the cops." He was trying to get over the fence when he heard the siren. Lu said that when Pham got back into the car he pulled the black handle out. He just saw the handle and thought it had been broken off. Pham said to him "I stabbed him" in Vietnamese. Pham, he recounts, had a cut on his middle finger. He did not know what Pham did with the handle. Lu denies in the ERISP that he drove past the deceased earlier, that he was in the front yard at all and that he punched him.

12 On 2 October 2005 Pham spoke to his brother Dinh-An Pham. According to Dinh-An Pham, Pham told him that when he arrived at Lu's house Lu was on his way out in his car because he had just seen two brothers who had bashed and tried to rob his wife. Pham said he got into the car with Lu and they had a scuffle with these brothers. During the scuffle one of the guys lunged at Pham with a knife. Pham said he turned the knife around and then went to chase the other brother. As he looked back he saw the guy with the knife fall to the ground.

13 Pham, after his arrest on 3 October 2005, entered into an ERISP during which he described Lu as looking very upset when he was walking to his car. Lu explained that he had a problem with [the deceased] and wanted to sort it out. The conversation continued whilst they were driving in the car for a short time which Pham estimates to be 10 to 15 minutes. After they saw the deceased they jumped out of the car, the deceased jumped over the fence and must have been scared because he saw Lu with a pole in his hand. Pham recounts that he jumped over the fence to grab the deceased who had a blade which came into contact with his hand. As Pham shoved and pushed his arm away, Pham tried to turn and run the other way. As he turned he noticed the deceased fall and he was screaming. The deceased must have slipped and fallen onto his blade. Pham initially recounts that Lu did not climb over the fence but at a later stage in the ERISP resiles from the firmness of that position by stating that he was busy and did not know

How the Crown Intends to Present its Case

14 The Crown intends to present its case against Lu and Pham as a joint criminal enterprise and, in the alternative, as an extended joint criminal enterprise. Both Lu and Pham went to the front door, the Crown contends, with the intention of at least inflicting grievous bodily harm. The act of stabbing was done by one of them in pursuance of and in carrying out the joint criminal enterprise.

The Application for Separate Trials

15 Where the Crown case is that the accused were parties to a joint criminal enterprise, the starting point is that they should be tried jointly, Webb v The Queen (1994) 181 CLR 41. In Regina v Jon Leslie Baartman (unreported, NSWCCA 6 October 1994) the Court of Criminal Appeal approved the relevant principles governing the exercise of the discretion to grant a separate trial as enunciated by Hunt J in Regina v Stephen Frederick Middis (unreported, NSWSC 27 March 1991), an approval repeated in Regina v Georgiou [1999] NSWCCA 125:

“Briefly, the relevant principles are that:

1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and
2. Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and
3. Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,

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

16 In Regina v Pham [2004] NSWCCA 190 Adams J provides in the leading judgment some explanation of the principles enunciated in Middis:

“39. Two phrases in this summary need some explanation. In ordinary speech, “immeasurably” usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant “significant, though incommensurable”. The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to “positive injustice”. Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that he inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence.

40. I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant’s case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was such a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender’s case is material. Indeed, the opposite would seem to be the case since, if the co-accused’s case was weak, or weaker than the applicant’s, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury’s consideration of the applicant’s case.”

17 It follows that an applicant for a separate trial must demonstrate that there is a real risk that a positive injustice could be caused to him in a joint trial. Mr Button SC for Lu submits that it is the combined effect of Pham's ERISP and the conversation with his brother which demonstrate that there is a real risk that a positive injustice would be caused to Lu in a joint trial. Those parts of Pham's ERISP which conflict with Lu's account of what occurred and the conversation with his brother go to the central question in the trial, which will be: was there a joint criminal enterprise and, if so, what was it?

18 Referring to the principles in Middis Mr Button argues that the case against Pham is much stronger and different from the case against Lu principally because of the evidence of the deceased's brother and mother that they saw Pham return to the vehicle and get something, from which it can be inferred that he was in possession of the knife. Moreover, Pham's account of how the deceased came to be stabbed by the knife strains credulity. The material in Pham's ERISP and the statement of his brother are highly prejudicial to Lu, Mr Button submits, although not admissible against him. There is the real risk that the weaker prosecution case against Lu, Mr Button contends, will be made immeasurably stronger by that prejudicial material as the jury may be inclined to use it even subconsciously to undermine the position of Lu and to ultimately reject it.

19 I do not consider the evidence against Lu is significantly weaker than and different from that admissible against Pham. It is common ground that the evidence of Sophie and Dannis Rousianos is admissible against each of the accused. Whilst it is true that each of them gives an account of Pham returning to the vehicle and Dannis describes seeing Pham carry an object with a black handle, each witness deposes to both Lu and Pham going over the fence. Dannis recounts Lu punching the deceased to the face with Pham standing next to the deceased. Moreover, according to Dannis, Lu was seen driving his vehicle alone a short time before he returned with Pham. An account is provided by both witnesses of the earlier incident, which includes Lu holding a machete.

20 Although the Crown case points firmly to Pham being the person who actually stabbed the deceased, the proposed evidence with equal firmness points to the attack upon the deceased being motivated by Lu's desire for revenge and to his actual participation in the attack. The Crown case, it seems to me, against each of the accused depends upon the acceptance of the evidence of Sophie and Dannis Rousianos.

21 The admissions made by Pham in this ERISP and the conversations recounted by Dinh-An Pham are not admissible against Lu. Pham's statements to police and his conversations with his brother are inconsistent with Lu's account that his disagreement with the deceased had been reconciled and the attack upon the deceased was a spontaneous attack by Pham in which he did not participate. This inadmissible material considered in combination adds little, in my view, to the inferences available from the admissible evidence of Sophie and Dannis Rousianos of the prior incident with a machete; the driving past by Lu alone in his car; his return accompanied by the co-accused and the attack that followed. Although there is some prejudice to Lu from the inadmissible material I am not persuaded that it is highly prejudicial.

22 It follows from what I have said that I do not consider that there is a real risk of a weaker Crown case being made stronger by reason of the prejudicial material. Irrespective of the relative strengths of the Crown cases against each of the accused, I do not consider that there is a significant risk that prejudicial evidence could be used adversely to the applicant: see Pham per Adams J at [40]. The jury would be given specific directions that Pham's ERISP and the conversations with his brother are admissible only against Pham and are not to be taken into account against Lu.

23 The application made by Pham for a separate trial is founded on what was said by Lu to police in his ERISP and the use that may be sought to be made by the co-accused of the evidence of Andrew Klintworth. Lu told police that when Pham got back into the vehicle he pulled the black handle out and said to him in Vietnamese, "I stabbed him." What was said by Lu in the ERISP is not admissible against Pham. The prejudice to Pham which arises from the inadmissible material is very high. It amounts to an explicit admission by Pham to Lu that he inflicted upon the deceased the wound which caused his death.

24 Although I have assessed the comparative strengths of the cases against each of the accused as about the same, there is a real risk that the Crown case against Pham will be made significantly stronger by reason of the inadmissible material. In this instance a clear and emphatic direction that the inadmissible material must be ignored may not be sufficient to avoid a miscarriage of justice.

25 The risk of a positive injustice to Pham by a joint trial is enhanced by the evidence of Andrew Klintworth. Klintworth told Detective Senior Constable Kneipp and Senior Constable Bullow on 3 October 2005 that Pham had tried to stab him in the heart with a knife. Notices had been served by the Crown and Lu of an intention to rely on that evidence to prove that Pham had a tendency to act in a particular way, namely, to possess a knife, retrieve it from a car, and to use a knife in a particular manner, namely, an action of stabbing to the heart.

26 Mr Klintworth during his evidence on a Basha inquiry this morning resiled from what he told the police officers in 2005 and told this Court it was not true. The Crown no longer seeks to call Mr Klintworth on the basis of tendency, but for a more limited purpose.

27 Mr Klintworth, however, is a witness of importance to Lu. The statement he gave to police in 2005 has the potential to assist Lu in his case that the death of the deceased was caused by Pham, an act in which Lu was not involved. When Klintworth is called by the Crown, Mr Button SC has informed me that he proposes to endeavour to get the statement in as a prior inconsistent statement.

28 Klintworth's statement to police in 2005 has a potential to strengthen the reliability of the inadmissible admissions in Lu's ERISP. The prejudice to Pham, already very high, would be enhanced. It could not be cured by a strong direction.

29 It seems to me that Pham has demonstrated that there is a real risk that the positive injustice would be caused to him in a joint trial. I order that Lu and Pham be tried separately.

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