R v Ngo
[2002] VSCA 188
•1 November 2002
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 343 of 2000
| THE QUEEN |
| v. |
| TRONG DUY NGO |
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JUDGES: | WINNEKE, P., CHERNOV, J.A. and O'BRYAN, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 October 2002 | |
DATE OF JUDGMENT: | 1 November 2002 | |
MEDIUM NEUTRAL CITATION: | [2002] VSCA 188 | |
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Criminal law – Armed robbery – Whether judge erring in directions to jury on corroboration, aiding and abetting and lies to which no exception taken at trial – Whether error in permitting prosecutor to cross-examine principal Crown witness – Whether jury should have been discharged after hearing excluded evidence – Sentence not manifestly excessive or disparate from that imposed on co-accused.
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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 J.P. Dickinson | Ian Polak |
WINNEKE, P.:
After a trial in the County Court at Melbourne in September of 2000, the applicant Ngo (whom I will refer to as "the applicant") was found guilty of one count of armed robbery committed upon people named Nguyen on 8 October 1998. The armed robbery occurred at the home of the Nguyens at 9 Saxony Court, Mulgrave, in the late hours of the evening. At the relevant time the applicant was in company with three other male offenders (one unknown and the other two I shall call "Pham" and "Luan") and two females. Only Pham has since been identified. He pleaded guilty to the armed robbery. He was, at the date of the offence, aged 17 years with no prior convictions. He pleaded guilty at the earliest opportunity and was sentenced on 10 February 2000 and released on a good behaviour bond. The applicant, who was aged 30 at the time of the offending, was, as I have said, convicted after trial in September 2000 and was sentenced, on 30 October 2000, to a term of imprisonment of five years with a non-parole period of three years. Prior to sentence he admitted a number of previous convictions, mainly relating to offences of dishonesty, from two previous court appearances.
The applicant has sought leave to appeal both against the conviction recorded and the sentence imposed. He has relied upon a number of grounds to which I will hereafter refer. In order to place them in context, it is necessary to briefly refer to the evidence given at trial and to certain events which occurred during the course of the hearing.
The victims of the armed robbery, Mr and Mrs Nguyen, had conducted at all material times a business of manufacturing clothing. In the course of conducting the business it was contended by the applicant that the Nguyens had incurred a debt of $2,000 to the applicant's mother who was also involved in the business of clothing manufacture and sale. She was known to the Nguyens as "Auntie Tu". Although she was to be called by the Crown as a witness at the trial, the judge excused her from doing so pursuant to s.400 of the Crimes Act.
The applicant and his mother had, over a substantial period of time, unsuccessfully endeavoured to recover the debt said to be owed to them. The applicant had been to the Nguyens' house on 5 October 1998, in company with another person, in an unsuccessful bid to recover the debt. He said that he had been told to come back in "three days time".
On the night of the robbery the applicant, his co-accused Pham and other colleagues (including Luan) drove in the applicant's car to the Nguyens' premises in Mulgrave. Whilst the applicant gained entry to the premises by knocking at the front door, his colleagues concealed themselves in other parts of the front garden. Once the door was opened the applicant and his colleagues then moved into the house. Mr and Mrs Nguyen were taken into the kitchen, Mr Nguyen saying that one of the men held what appeared to him to be a gun. At the time the group entered Mrs Nguyen was in the bedroom. The female invaders went into the bedroom, ordered Mrs Nguyen to get dressed, and took her into the kitchen where the applicant was with her husband. In the kitchen they proceeded to assault Mrs Nguyen in front of the applicant and her husband. The applicant demanded from the Nguyens the money which he said was outstanding as a debt to his mother and the Nguyens claimed extra time to repay it. At some stage whilst the invaders were in the house, one of them had cut the telephone wires to prevent the Nguyens from summoning help. When the applicant and his cohorts were satisfied that there was no money to be recovered, they left the house taking with them some jewellery which they had taken from Mrs Nguyen and some stereo and other electrical equipment which they had found in the Nguyens' house. It appears that as they left the house they discarded the knife which they had had with them in the house in a park adjacent to the premises and then drove off with the stolen equipment in the car.
Mr and Mrs Nguyen, later in the night or, more accurately, in the early hours of the following morning, went to the applicant's mother's house for the purpose of recovering the stolen equipment. It was apparently not to be found. The applicant was quickly apprehended and took part in a tape recorded interview. That record of interview revealed that he was a user of heroin. In the course of the interview he told the police that he had been to the house of the Nguyens for the purpose of recovering the debt which was owed to his mother. It would also appear, from what he told the police, that he owed a debt of similar amount to Luan. He claimed that it was not a debt owed for the supply of heroin and told the police that he used heroin on relatively few occasions.
During the course of the interview there were a number of references made to the applicant's heroin use, and those references were excluded from the record of interview which was played to the jury. A copy of the transcript of that interview had been provided to the jury. Unwittingly, a short reference to the applicant's heroin use had not been excluded from either the tape or the transcript. The question and answer was number 178 and the words unwittingly left in the record were as follows: "I use the her - heroin too". The thrust of the statement made by the applicant to the police suggested that he was not aggressive during the course of the invasion of the Nguyens' house nor did he intend that aggression should be used. To that extent, he sought to dissociate himself from any violence that occurred to the Nguyens.
The applicant also gave evidence upon his trial. He said that he had been to the home of the Nguyens on a number of occasions to collect the money that was owed to his mother. He had been there prior to the night of 8 October (namely on the night of 5 October 1998) when the Nguyens had told him to return on the evening of the 8th when the money would be repaid. He said that there was no discussion with his colleagues on the way to the house on that night about the use of violence or cutting telephone lines. Nor were there, to his knowledge, any weapons or arms in the possession of any members of the group. He said that when he entered the house he went into the kitchen with Mr Nguyen and had only become aware of violence being used against Mrs Nguyen when he heard a noise and saw the women trying to take some jewellery from her hands. Mrs Nguyen said, according to the applicant, that if he came back the following day she would pay the $2,000; otherwise "they could come back and burn the house down". He said that he saw one of the other men in the house "wielding a knife" but he did not see any other weapons. He said that he told Mr and Mrs Nguyen that he would be taking goods from the house "as security", but they would be returned upon payment of the debt. Although a number of objects were removed from the house, he said that that was not done upon his instructions or with his knowledge. He said that he had lied to the police in his tape recorded interview when he had told them that he and Luan went to the Nguyens' home in his car whilst the others in the group had followed in a second car. He had also lied when he told the police that someone else might have come into the house and taken the stereo equipment.
The applicant's young accomplice, Pham, was a principal witness for the Crown. He had been identified and apprehended by police within days of the alleged robbery and had participated in a record of interview on 14 October 1998. Thereafter he had made a written statement to police in New South Wales, where he lived, on 22 August 2000. Pham gave evidence at the trial through an interpreter. He said that at or about the time when the robbery occurred he had been staying with friends at a house in Thames Avenue in Springvale, where five or six other people of Vietnamese origin were living. He said that the applicant visited the house from time to time and that, shortly before this robbery occurred, the applicant had told him that someone owed his mother $2,000 and that he "wanted to go there to recover the money". The applicant had asked him to go with him to recover the money and that he, Pham, had agreed. He said that the applicant had driven him and four other people to the Nguyen' premises in the applicant's car. He said that he was ordered to hide behind a car in the driveway whilst the applicant gained entry to the house and that when the door was opened he was to gain entry himself. He said that when the door was opened he left his "hiding place" and entered the house and went into the kitchen where the applicant was present with Mr Nguyen. The applicant told him to go into the bedroom and bring Mrs Nguyen into the kitchen and this he did with one of the girls. He said that, whilst in the kitchen, he had picked up a "barbecue fork" for "self-defence". He said that he could not hear clearly what was being said in the kitchen, and that he did not know "whether anybody was getting angry". He said that he saw "another guy" taking a stereo system from the loungeroom and that he went to "give him a hand". The prosecutor again asked the witness why he had "picked up the barbecue fork" and the witness repeated that he had done so for "self-defence". The witness further said that he could not hear clearly what the applicant was saying to Mrs Nguyen in the kitchen except that it was "something about money".
Towards the end of the examination-in-chief of the witness Pham, the prosecutor made an application to the judge to have the witness declared "adverse" because of inconsistencies between the witness' evidence and statements that he had made less than a fortnight before in his signed statement to the police in New South Wales. In particular, the prosecutor relied upon the following matters:
(a)whereas the witness had said that the applicant's appearance on the night was "normal", he had said in his statement that the applicant was "very angry";
(b)the witness, in evidence, had said that they were not going to the Nguyens' premises to "scare them", whereas in his statement he had said that the applicant had told him "that he wanted to go around to the lady's house with lots of other boys to scare the lady to get the money off her", and that, in the car on the way to the house, the applicant was telling them that "when we got to the house we must arm ourself by getting something to...scare the lady";
(c)whereas the witness had said in his evidence-in- chief that he had "picked up the barbecue fork" for "self-defence", he had said in his statement that "the applicant had told them they must arm themselves...to scare the lady";
(d)whereas the witness, in evidence, had said that he had heard one of the other men "taking something" and that he had "gone out to give him a hand", in his statement he had said that the applicant "was getting angry in the kitchen because the lady refused to pay the money. He said that we must take some property from them to make them pay the money. I saw the guy with the long hair go into the lounge room and he started to take the kareoke machine. I helped him carry the.machine and we put them in [the applicant's] car".
The prosecutor said that he desired to establish before the jury that the witness had made the prior statement on 22 August 2000, to put what he contended were the designated inconsistent statements to the witness and ask whether he agreed that what he said in the statement was true. The judge asked the applicant's counsel whether "he had anything by way of submission to [say] about the matter", to which counsel replied the witness was "quite a difficult witness" and suggested that the differences between his written statement of 22 August and his testimony may only be "conceptual" resulting from a lack of understanding of the questions.
Although her Honour did not say in terms that she regarded the witness as "adverse" or make any ruling to that effect, she did say that she regarded the answers given by the witness as "selective" and more consistent with the applicant's "exculpatory" record of interview in the sense that they suggested that the applicant's role on the night in question was "more benign" than the witness' written statement to the police had suggested. Accordingly, her Honour permitted the prosecutor to adopt a limited form of cross-examination on the specified matters; that is, by allowing the prosecutor to put the excerpts on those matters from the witness' police statement to him and to ask the witness whether they were true. Counsel for the applicant did not further oppose the procedure which her Honour had proposed. The trial then resumed and the witness was recalled. The prosecutor put to the witness those aspects of his prior statement which related to the matters to which I have previously referred. The witness adopted those statements as true. He was then cross-examined at length by counsel for the applicant. Inter alia, the witness said, in cross- examination, that he saw no difference between what he had said in his evidence-in-chief and what he had said in his written statement to the police. The witness' statement to the police was not in evidence and was not before the jury.
The case made by the Crown was that the armed robbery was carried out by people who went to the premises with the applicant, acting in company, and that the applicant was aiding and abetting them. In essence, it was put by the Crown that the applicant was the person encouraging the armed robbery, he having collected the other participants and driven them to the premises of the Nguyens. However, the applicant, both in his record of interview and his evidence at trial, had sought to "distance" himself from the events that happened in the house. There was much evidence which supported the Crown case that he was an aider and abettor of the armed robbery that had occurred. He was the one who gained entry into the premises; he was the one who was going to the premises to collect the debt owed; he was the one "in control" of the Nguyens in the kitchen at the premises; and he was the one who appears to have condoned the taking of the property albeit, as he said, as "security". There is little doubt that the Nguyens were put in fear by the actions of those who entered the premises in company with the applicant and that some of those people were armed with offensive weapons. It was well open to the jury to find that the applicant was encouraging the provoking of fear into the Nguyens and, if they accepted the evidence of the accomplice, Pham, that it was the applicant who had encouraged the other participants to take up arms and instil fear into the occupants of the premises. In short, the Crown case was that the applicant had aided and abetted in the armed robbery; and it was a strong one. It is not surprising that on 11 September 2000 the jury returned its verdict after a short period of retirement.
The applicant has sought leave to appeal against the conviction recorded against him on a large number of grounds. Those grounds relate to misdirection, non-direction and irregularities in the procedure adopted at trial. The grounds, particularly the ones relating to the judge's directions, are surprising having regard to the fact that little or no exception was taken to what seems to me to be adequate directions both on the law and the facts. This Court has often said that grounds of appeal asserting misdirection will rarely succeed where counsel at the trial has taken no exception to the charge, because counsel at trial, immersed as they are in its atmosphere, are in the best position to determine whether the content of the judge's directions has given rise to the potential for a miscarriage[1]. Of course, no hard and fast rule can be laid down, lest the discretion of this Court to rectify substantial miscarriages of justice is fettered[2].
[1]See R. v. Tripodina & Anor. (1988) 35 A.Crim.R. 183 at 191 per Yeldham, J.; R. v. Calides (1983) 34 S.A.S.R. 355 at 359 per Wells, J.; R. v. Clarke & Johnstone [1986] V.R. 643 at 661-2; R. v. Gallagher [1998] 2 V.R. 671 at 681-4.
[2]See R. v. Wright [1999] 3 V.R. 355 at 361 per Callaway, J.A.
The grounds of the application for leave to appeal in this case, asserted by the applicant, were 15 in number. Mr Dickinson, who appeared for the applicant, refined them to seven. In short form, they were as follows:
(1)The judge impermissibly bolstered the credit of Pham, the accomplice.
(2)The judge erred in failing to discharge the jury after the reference to "heroin" was unwittingly left in the record of interview and/or failed to instruct the jury as to how to deal with the matter.
(3)The judge wrongly failed to identify for the jury the property which was the subject of the charge of armed robbery.
(4)The judge failed to properly direct the jury on the issue of the lies told by the applicant in his record of interview.
(5)The judge erred in directing the jury as to the evidence capable of amounting to corroboration of the accomplice's evidence.
(6)The judge erred in explaining to the jury the effect of leave being given to the prosecutor to cross- examine the accomplice, Pham.
(7)The judge erroneously directed the jury on matters which were, and were not, capable of constituting acts of aiding and abetting.
In my view there is absolutely no substance in ground 3. Mr Dickinson appropriately did not press it.
Grounds 1 and 6.
These grounds assert that the judge was wrong to have permitted the prosecutor to cross-examine the accomplice Pham and, further, was in error in explaining to the jury, in the course of her directions, the effect of the procedure which she permitted.
As I have noted, during the course of the evidence-in-chief of the witness Pham (which was given through an interpreter), the prosecutor made application to the judge to have him declared as "adverse" in the light of the witness' departure in evidence on critical matters from the statement which he had made to the police on 22 August 2000. I have earlier referred to the "departures" relied upon in paragraph [10] of this judgment. For the purposes of assisting her Honour to rule on the application, the judge conducted a voir dire, during the course of which the relevant parts of the statement were put to the witness, and he conceded that they were true and correct. Following this procedure, her Honour suggested to the prosecutor that the differences between the evidence and the statement may have been the product of the "language barrier". The prosecutor persisted in his application that he should be permitted to ask leading questions from the written statement. Counsel for the applicant submitted that the "inconsistencies" were probably produced by the witness' inability to grasp the nuances of the questions and that there "may be cultural reasons" for the witness' answers in evidence-in-chief. Her Honour responded:
"I did consider that but I have to say that the answers, or the selective way in which he answered seems to me, in the light of the defence, to be something going a lot further than that...but it is something that the Crown are entitled to rely upon in relation to the very fact that your client's position is that these things were done without his knowledge...and that he was not involved in anything other than making a demand about a debt that was truly owed to him. ... It seems to me far too consistent to be that, in the sense that the Crown, having asked those questions and put them very carefully over and over about certain things that I would have thought are glaringly obvious - about comments made, et cetera, doesn't seem to me to be as you put it."
When counsel raised the question about Pham's record of interview, her Honour interposed to say that she was not going to allow questions about that; "only the statement". Her Honour referred to the fact that, in his evidence, the witness had "completely resiled" from his statement that he had been directly asked by the applicant to do certain things. She then said to the prosecutor:
"Yes, I think on the basis of the matters that have been put, I will allow you to put the matters in the way you have indicated...and that is to put his statement to him and...take him to the particular matters and ask him whether or not they are true and correct; ...in other words to cross-examine him on that matter."
At the trial counsel for the applicant did not demur from the course which her Honour had indicated and requested a short adjournment. The witness was then recalled; the relevant matters contained in his statement were put to him. The statement was shown to the witness; he acknowledged it. He acknowledged that the matters which the prosecutor put to him, as contained in the statement, were true and correct. The statement did not go into evidence and no application was made to tender it.
It was submitted in this Court by Mr Dickinson that her Honour had not ruled that the witness was adverse and the procedure adopted was impermissibly allowing the prosecutor to bolster the credit of his own witness. I cannot agree. It is clear from what she had said that her Honour regarded the witness as adverse on the grounds that his evidence was deliberately selective and divergent from his earlier statement, in a manner which was supportive of the applicant's defence. That much is clear, as it seems to me, from the exchanges between her Honour and counsel to which I have referred. Although her Honour did not specifically "declare" the witness to be "hostile", it is to be clearly inferred from what she said and the leave to cross-examine which she gave, that she regarded the witness as an adverse witness. It is also clear from what she said that she relied, not only upon the inconsistency of the prior statement, but also upon the demeanour of the witness in reaching her conclusion that he was adverse. In conducting her inquiry in the absence of the jury, and withholding from them the knowledge of the statement until she had determined the hostility of the witness, the judge acted in accordance with long standing and well established authority[3] - and in accordance with the provisions of s.34 of the Evidence Act 1958. Although a party, who has been given leave to cross-examine an adverse witness, is not generally to be constrained in his cross-examination (except, perhaps, that the cross-examination is to be confined to matters relevant to the issue[4]) her Honour limited the prosecutor to the designated inconsistencies in the prior statement. She also declined to allow the statement to go to the jury. Again, her Honour was proceeding in accordance with well established authority[5].
[3]Russell v. Dalton (1883) 4 L.R. (N.S.W.) 261; R. v. Hunter [1956] V.L.R. 31 at 34.
[4]cf Hunter supra, at 36-7.
[5]R. v. Thynne [1977] V.R. 98 at 101-2; R. v. Neal, Regos & Morgan, H.C., unreported, 17 April 1947 per Dixon, J. – that case and the procedure were referred to in R. v. Thynne, supra, at 101-3.
It follows from what I have said that, in my view, the procedure adopted by her Honour was unexceptionable, and, indeed, engaged in without any significant objection from the applicant's trial counsel. The question whether the prosecutor should be permitted to cross-examine his own witness is one which is peculiarly within the province of the trial judge who is in a pre-eminent position to observe and gauge the demeanour of the witness and, thus, to determine whether the requested leave should be given or withheld. The judge's discretion to grant such leave will not, except in very exceptional circumstances, be interfered with on appeal[6]. In my opinion, there was nothing in the circumstances of this case which would suggest that her Honour's discretion had been improperly exercised. In particular, I cannot agree with Mr Dickinson's contention that her Honour had impermissibly allowed the prosecutor to "bolster the credit" of his own witness. On the contrary, the procedure which her Honour permitted was to enable the prosecutor to impeach the credit of his own witness by asking questions which were directed to showing that the evidence which he had already given was untrue in material respects. The fact that the witness, when so cross- examined, admitted the truth of his previous statement, did not mean that his credit was bolstered - impermissibly or otherwise. What it meant was that there were two versions given by the witness on material events, a matter exposed by trial counsel for the applicant in his final address. Indeed, ground 6 of the appeal grounds, which is allied to ground 1, complains that her Honour, in the course of her directions, improperly told the jury that Pham was a witness "from whom the truth had to be extracted". However, in using these words, her Honour was describing the prosecutor's attitude to the witness; she was not intending to tell the jury that they should regard the witness' version, given when cross-examined, as the truth. She said:
"Firstly, the fact that [the prosecutor] exercised the right given to him to cross-examine the witness indicates that [the prosecutor] did not put the witness forward as a witness of truth, but one from whom the truth had to be extracted by way of cross-examination. Secondly, while you may bear in mind [the prosecutor's] attitude to the witness and my allowing his cross- examination, in the long run it is up to you, not me, or [the prosecutor] to determine the truthfulness and the accuracy of the witness's account. As I have said to you, you are the judges of the facts."
[6]R. v. Hunter, supra, at 32.
And shortly thereafter, her Honour told the jury that if they accepted that the witness had given two inconsistent versions of material events:
"Then you may use the fact that he has done that as being a good reason for not believing that witness or being very careful about believing that witness. In other words a good reason for scrutinizing that witness's evidence."
These directions were given as part of full directions which her Honour gave to the jury as to how they should use the evidence of the accomplice. In their context they were, in my view, adequate and, indeed, favourable to the applicant, and they were far from suggesting that the jury should accept as true the version of events which had been "extracted by cross-examination". I would, accordingly, reject these grounds.
Grounds 2 and 3 - Failure to Discharge the Jury
In paragraph [7] I referred to the fact that, in the course of the applicant's record of interview, a number of references were made to his use of heroin; and that, by agreement, these references were to be excluded from the tape and the transcript of it. However, unwittingly, the short sentence and the answer to question 178 - "I use heroin too" - was not excluded and was played to the jury. The episode occurred late in the Crown case. Although counsel for the applicant does not appear to have explicitly asked the judge to discharge the jury, it seems implicit from the transcript record that that is what he was asking the judge to do. He put it to the judge that the reference to heroin was "highly prejudicial" because of what he described as "ethnic baggage" and "general baggage in relation to heroin users". Her Honour declined to discharge the jury on the ground that the circumstances did not meet the test of a "high degree of need"[7].
[7]cf. R. v. Boland [1974] V.R. 849 at 866; R. v. Crofts (1966) 186 C.L.R. 427 at 432.
Her Honour said that she had come to that view both because of the context in which the answer was given and her observation of the jurors when the tape was played. It was her view that the answer to question 178 had not caused any significant prejudice. She further expressed the view that, in the circumstances, it might be better to "not mention the matter at all" unless counsel wished. Otherwise, she dealt with the matter by withdrawing the relevant page from the transcript of the interview and by having the Crown exclude the answer from the tape. It would seem that counsel acceded to this course because neither counsel requested the judge to take any course other than that which she took.
Mr Dickinson submitted that this Court should now conclude that her Honour's discretion miscarried because the applicant's credit was crucial to the issues which the jury had to decide and that, to have irrelevant material put before them suggesting that he was an "habitual law breaker" was such a grave irregularity in the trial that a miscarriage was inevitable, at least in the absence of some judicial direction which was not forthcoming.
For my own part, I am far from satisfied that her Honour's discretion miscarried. The impugned question and answer were not germane to the issues in the trial and, in my view, would not have been regarded as such by the jury. Her Honour was apparently observing the jury whilst the tape recording was played, and it was her observation that there was no apparent indication that the answer had excited any interest in any of them. She eventually gave the jury full directions as to what the issues were in the trial which they had to determine; and full directions as to their role, including instructions to guard against prejudice in reaching their conclusions. I am also of the view that the manner in which she dealt with the problem was appropriate to the circumstances as she perceived them to be; and that counsel did not suggest to the contrary. The circumstances in this case were very different from those which occurred in Crofts, supra, and the other cases to which Mr Dickinson referred where the prejudicial material was not only introduced in very different circumstances, but it went to the very heart of the issues which the jury had to decide. Her Honour approached the application in accordance with accepted principles. The possibility of the inadvertent introduction of prejudicial material into criminal trials is inescapable. As was said by the majority judges of the High Court in Crofts[8]:
"Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; [and] the likely effectiveness of a judicial direction designed to overcome its apprehended impact."
[8]Supra at 440.
Bearing in mind the relevant factors which the judge had to weigh in the balance, I am not prepared to say that her discretion miscarried. On the contrary, it seems to me that she was well entitled to conclude that there was no high degree of need to discharge the jury at that stage of the trial.
Ground 4 - Directions on Lies
In the course of the record of interview the applicant told a number of lies on material issues to the police. In the course of his evidence, he admitted that they were lies. During her charge, the judge gave directions to the jury as to the use which they could make, and could not make, of those lies. It is those directions which are impugned by this ground of appeal. Mr Dickinson submits that the directions were deficient because she did not instruct the jury that "there may be many reasons for the telling of a lie apart from a realization of guilt". It was put that the jury should have been told that a lie may be told out of panic, to escape an unjust accusation or to protect some other person or to avoid a consequence extraneous to the offence[9]. However, this was a case where the applicant admitted that he had told lies to the police, and admitted that - when he told them - he knew them to be untrue. When asked, he gave an explanation for telling the lies; namely that he knew that others had been involved in the crime alleged but he was not involved and that he did not want to be implicated. Her Honour said of that explanation:
"The defence, in effect, say you just could not discount that explanation beyond reasonable doubt and, if you cannot, members of the jury, then you cannot use his lies as actual evidence of guilt against him. So consider that when you are looking at the aspect of lies …"
[9]cf. Edwards v. R. (1993) 178 C.L.R. 193 at 211.
The judge, of course, has the overriding responsibility of giving directions to the jury which are tailored to meet the issues that have arisen in the case[10]. The so-called Edwards direction is a direction which is necessary, in particular circumstances, to prevent a miscarriage of justice. It is, as this Court has said in R v. Le Broc[11], a direction which is calculated to prevent the jury from using the lie in an impermissible way. Such a direction is not intended to be a code which takes no account of the circumstances of the case which is before the jury. In this case the applicant had put before the jury his explanation for telling the lies which he admitted, and her Honour's directions, to which I have referred, instructed the jury - with, in my view, the authority of her office - that they could not use those lies as evidence of guilt unless they were satisfied beyond reasonable doubt that the explanation proffered was untrue. It is true that her Honour did not mention any of the four possible reasons that might account for the telling of a lie which the High Court proffered in Edwards[12]. But, as this Court said in R v. Le Broc[13]:
"We do not consider that their Honours intended that they should all be put before any jury asked to treat lies as told out of consciousness of guilt even where the facts of a case in no way suggest them as possible reasons for the lies."
[10]Alford v. Magee (1952) 85 C.L.R. 437 at 466.
[11](2000) 2 V.R. 43 at 55.
[12]Supra at 211.
[13]Supra at 56.
To suggest other possible reasons indeed might only detract from the reason actually advanced by the applicant. Although her Honour's directions on this matter might not be seen to have been as full as they could have been, they were, in my view, sufficient to meet the facts of the case and the issues raised in it. The fact that no exception was taken to the directions which she gave suggests that counsel involved in the trial sensed no miscarriage. Even if I am wrong in so concluding, I am quite satisfied that no substantial miscarriage of justice actually occurred within the meaning of the proviso of s.568(1) of the Crimes Act.
Ground 5 - Matters Capable of Amounting to Corroboration.
It is conceded on the applicant's behalf that her Honour gave the jury the standard "accomplice direction" and warning. However, Mr Dickinson contended - although not strongly - that she erred in telling the jury what evidence was capable of amounting to corroboration of the accomplice's evidence. Many of them were admissions made by the applicant in his own evidence; namely that he drove the other participants to the victims' house in his car; that he left the premises in his car carrying with him the other members of the "raiding party" and the stolen goods; that one of the party was wielding a knife in the house; and the accomplice was wielding the barbecue fork; that threats were uttered to the victims, and the female victim was assaulted by other members of the party. Her Honour also directed the jury that there was other evidence from the victims which also established many of these facts. It was contended by Mr Dickinson that this material was not evidence, independent of the person whose evidence was required to be corroborated, which implicated the applicant in the crime. His submission was that it was material which only confirmed that a crime had been committed; but not that it had been committed by the applicant. These submissions, in my opinion, betray a misunderstanding often entertained about evidence which is capable of amounting to corroboration. The locus classicus of what amounts to corroborative material is the decision in R v. Baskerville[14]. The decision in that case is not authority for the proposition that potentially corroborative material must itself prove that the crime was committed and that the accused was involved in its commission. It seems to me that Mr Dickinson's submissions were almost going that far, because the view for which he contended was that the evidentiary material which her Honour left to the jury was "intractably neutral" to the issue whether the applicant was involved in the commission of the crime. As Brooking, J.A. pointed out R v. Rayner[15]:
"That most authoritative decision [that is, Baskerville] itself shows clearly that references to corroboration as evidence tending to confirm the accomplice's story do not require the corroborator to be a fly on the wall: what is needed is 'independent testimony which affects the accused by connecting or tending to connect him with the crime'. (Baskerville at 667) The corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime."
[14][1916] 2 K.B. 658 at 667.
[15][1998] 4 V.R. 818 at 838
In my opinion, each of the pieces of evidential material left to the jury as evidence capable of corroborating Pham was evidence which was independent of the person whose evidence was to be corroborated and was evidence which affected the applicant by connecting or tending to connect him with the crime. I therefore reject this ground.
Ground 7 - Failure to direct the jury on matters which were and were not capable of constituting acts of "aiding and abetting"
As I have previously noted, the Crown mounted its case against the applicant on the basis that he was an aider and abettor of the crime of armed robbery. It is, to say the least, surprising that the case was not put on the alternative basis of "concert". Nevertheless, the judge gave a direction to the jury in the classical form of R v. Lowery & King [No.2][16]. That much is accepted by counsel for the applicant. Her Honour's directions then put to the jury the evidence upon which the Crown relied to establish that the applicant was an aider and abettor of those who committed the crime; and then the case made on behalf of the applicant that he was not an "aider and abettor", namely his evidence that he was not involved in threats or violence or taking of goods but was there simply to recover the debt owed. Her Honour concluded on this aspect by saying:
"In other words, although he admits being present, he denies that his presence was there by way of consenting to this crime, by way of encouraging or offering any [assistance], and he certainly did not do any actual acts that would have been assisting others to commit the crime ."
[16][1972] V.R. 560 at 561-2 per Smith, J.
At the end of her Honour's charge, trial counsel for the applicant took an exception in somewhat oblique form:
"The only matter is when the appropriation is complete, as we discussed earlier"... as to whether "assisting in driving away from the scene would"
This appears to have referred back to a discussion between her Honour and counsel at the end of the evidence. Her Honour had said to the prosecutor:
"Can I ask you Mr Jackson on that point about the driving away?"
to which the prosecutor responded:
"I am putting it on the basis, Your Honour, that the aid and abet was inside."
Whilst I might not necessarily agree with the view taken by the prosecutor, the judge was careful in her directions on "aiding and abetting" not to refer to the evidence of the events which occurred after the various persons had left the premises. As she said to counsel when exception was taken:
"I directly did not refer them to that for the reason..."
After a short retirement, the jury asked to be redirected on the meaning of "aiding and abetting". Again, her Honour directed them in unexceptionable fashion, and the jurors expressed themselves to be satisfied.
As I understand the point raised now under this ground, it is that her Honour should have specifically told the jury that, in determining whether the applicant had aided and abetted his cohorts in the commission of the armed robbery, they were not entitled to take into account the fact that, following the departure from the victims' house, the applicant had driven all of the participants away with the stolen "loot" in his car. It is clear that the learned judge did not tell the jury that they could take it into account; however, the complaint now is that she should have told them that they could not. In my view, there is nothing in this point. For my own part, I entertain the view that if the judge had given such a direction it would have been unduly favourable to the applicant. But the fact that she said nothing about the matter was not, on any view, a material non-direction giving rise to a miscarriage of justice. Accordingly, I reject this ground and, with it, the application for leave to appeal against conviction.
In respect of the sentence, the primary submission put on behalf of the applicant was that the judge sentenced on the basis that the applicant was a principal - acting in concert - rather than on the basis that he was an aider and abettor. This error, so it was put, was revealed early in the plea when her Honour said that, in her view:
"The jury verdict accepted that he went there with the idea...of going in with the others to scare the people into giving him his $2,000."
There was no doubt, on the evidence, that the applicant went to the victims' house on this night to recover a debt which was owed to him or to his mother and that he recruited five other persons to go with him. The judge accepted, for sentencing purposes, that the applicant had not planned the armed robbery which occurred, but was content to condone it when it did. As her Honour said:
"As I indicated on the plea, I propose to sentence you on the basis of the Crown case and on the basis that you...condoned the taking of the property from the premises to equate with what you were owed."
It seems to me that her Honour was entitled to sentence the applicant on this basis. Although what transpired at the Nguyens' premises might not have been the subject of prior agreement - at least on the part of the applicant - it was open to her Honour to take the view, for sentencing purposes, that he was quite happy, and willingly encouraged, the disgraceful episode when it did occur.
Although Mr Dickinson suggested that the sentence which her Honour imposed was manifestly disparate with that imposed on the young accomplice, Pham, the fact is that he was sentenced as a juvenile offender who pleaded guilty, with no prior convictions and, undoubtedly, acting under the influence of this applicant. No reasonable observer would, I think, be in the slightest discomforted or feel any sense of grievance at the knowledge that such a young first offender was sentenced in a significantly more lenient way than this 32 year old man with an unenviable record for offences of dishonesty, who has shown no remorse, and whom the jury must have accepted was concerned to assemble a sizeable team to assist him to recover his debt. For these reasons, I do not accept the contention that the sentence imposed upon this applicant is capable of being impugned by principles of manifest disparity.
In conclusion, I am quite satisfied that the sentence which her Honour imposed is not manifestly excessive. It was, in my view, an obnoxious armed robbery which involved a large number of young men and women invading a private house in the dead of night in circumstances where much fear was instilled into the occupants of the house, one of whom was an elderly woman. A head sentence which equates to only 20 per cent of the maximum available for such a crime was well within the range of sentences available to the learned judge.
For my own part, such was the nature of the applicant's participation in this crime that I do not think - even if error had been disclosed in the sentencing process -
that any different sentence should been passed.
I would therefore dismiss the appeal against sentence.
CHERNOV, J.A.:
I agree.
O'BRYAN, A.J.A.:
I agree.
WINNEKE, P.:
The formal order of the Court is that the application for leave to appeal against conviction and sentence is dismissed.
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