R v Ngo

[2000] NSWSC 964

CITATION:	R v Ngo; Dao; Dinh [2000] NSWSC 964 revised - 11/07/2001
CURRENT JURISDICTION:	Common Law Division Criminal
FILE NUMBER(S):	SC 70086/98; 70223/98; 70059/99
HEARING DATE(S):	3 & 4 October 2000
JUDGMENT DATE:	4 October 2000
PARTIES :	Regina Phuong Canh Ngo (Accused) Tu Quang Dao (Accused) David Duy Thai Dinh (Accused)
JUDGMENT OF:	Dunford J

COUNSEL :	Mr Tedeschi QC (Crown) Mr Nicholson SC / Mr Pearsall (Ngo) Mr Hastings QC (Dao) Mr Hoenig (Dinh)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) LMG Solicitors & Attorneys (Ngo) Jackson Smith Solicitors (Dao) Siobhan Mullany Solicitor (Dinh)
CATCHWORDS:	CRIMINAL LAW & PROCEDURE - three accused - joint & separate trials
CASES CITED:	R v Fernando [1999] NSWCCA 66 R v Georgio [1999] NSWCCA 125 R v Midis (CCA - 27 March 1991) R v Baartman (CCA - 6 October 1994) R v Masters (1992) 26 NSWLR 450 at 461 R v Chai (1992) 27 NSWLR 153 at 191 R v Louden (1995) 37 NSWLR 683 R v Nguyen (CCA - 23 September 1998) R v Saunders (1994) 72 A Crim R 347
DECISION:	See para 54

THE SUPREME COURT Revised for Internet
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
Wednesday, 4 OCTOBER 2000
70086/98 R v Phuong Canh NGO
70223/98 R v Tu Quang DAO
70059/99 R v David Duy Thai DINH

JUDGMENT
(Re application for joint trial for Accused Dinh with trial of Accused Ngo and Accused Dao.)

1    HIS HONOUR: Phuong Ngo, Quang Dao and David Dinh are each charged with the murder of John Newman on 5 September 1994. 2    On 15 December 1999 Wood CJ at CL ordered that Ngo and Dao be tried together, but that there be a separate trial in relation to Dinh. The trial of Ngo and Dao commenced in February of this year, and concluded in May, when the jury was discharged after failing to reach agreement. Their new trial has been set down to commence on 29 January 2001. Meanwhile, the separate trial of Dinh has also been set down for that same day. 3    The Crown now applies to have Dinh tried jointly with Ngo and Dao. This application is opposed on behalf of Dinh, while Ngo takes a neutral position, and Dao does not consent, but his counsel did not make any submissions. 4    There was an earlier trial in July 1999 in which an accomplice TVT was also an accused, but that trial was aborted and subsequently TVT indicated that he wished to plead guilty, provided additional information and agreed to give evidence for the Crown. It was as a result of that additional information that Dinh was charged. 5    In order to consider the matter, it is first necessary to summarise the Crown case against the accused. It is alleged that Ngo and Newman were political adversaries, although both members of the Australian Labor Party. Newman was the member for the state seat of Cabramatta, and it is alleged that Ngo wanted a seat in parliament, preferably the Cabramatta seat. 6    A preselection ballot for the seat was held early in 1994, but at that time Ngo did not have the numbers to win that preselection, apparently because, although he had caused a number of new members to be recruited to the party, they had not satisfied the qualifying period to enable them to vote in the preselection ballot. Accordingly, Ngo did not stand for preselection, which was won again by the sitting member, Newman. 7    On the day of the shooting, 5 September 1995, Ngo had lunch with Mr John Della Bosca, a prominent ALP official, and it is suggested that it was indicated to him that he had found favour at the head office of the party for a future vacancy. 8    The Crown alleges that over the six months preceding that day, Ngo made a number of attempts to find a person to kill John Newman, and also involved a number of people in the purchase of firearms for use in the killing. 9    It is alleged that in March or April 1994 he approached another former accomplice TDN and asked him if he was willing to kill Newman. When TDN refused, he asked TDN to find someone else to do the killing, preferably someone who was not Asian. 10    It appears that TDN approached a man CC, who asked for a photograph of the proposed victim, but later told TDN that the intended victim was high profile, and he would not do it. 11    About the same time it is alleged Ngo asked TVT to make inquiries about obtaining a firearm. On an occasion, apparently in about April, TVT, TDN, Dao and another person MP went to Botany in Dao's green Ford sedan and purchased a sawn-off .22 rifle. The following day TVT told Ngo about the purchase of the gun, and Ngo told him to hold on to it. 12    About the same time it is alleged Ngo asked TDN to get him a gun. TDN went to Wollongong with Dao in Dao's green Ford, spoke to a man named Ly, but no gun was in fact purchased. 13    Subsequently, he spoke to Nguc Van Le, and a Beretta .32 calibre pistol was purchased for about $1,500. The Crown alleges this is the actual gun used in the shooting. 14    It is alleged TDN subsequently told Ngo that he had a gun, and Ngo told him to give it to TVT, which he did. But in the meantime, Ngo told TVT that TDN would pass something on to him, and when TDN gave the gun to TVT, it was wrapped in a rag. TVT unwrapped it in the manager's office, in the presence of one Robert Zervos, and later that night he gave it to Ngo. 15    There followed three so called attempts by TVT and/or TDN at the instruction of Ngo to kill John Newman. One at the Thien Hong Restaurant, one at the Greyhound Club at Yagoona, and one outside John Newman's house. 16    The .32 calibre Beretta was present on each of the occasions. It appears that these so-called attempts failed because of the lack of resolve or nervousness of TVT and TDN. 17    A couple of days after the third attempt, Ngo told TVT that TDN had pulled out. TDN left the Mekong Club, where he had formerly been employed for about two months, although he later returned. The Crown alleges that after this, there were two further plans to kill Newman, hatched at the instigation of Ngo, but they did not result in actual attempts. 18    Subsequently it is alleged Ngo asked TVT to ask the head of security at the Mekong Club - a person who gave evidence in the previous trial under the alias of Morris - whether he could put a silencer in the .32 Beretta. Morris gave it to another person, but that person's contact was unable to have the silencer fitted. The gun was returned to Morris, who returned it to TVT, who returned it to Ngo. 19    At some time after the three alleged attempts on Newman's life, but some months prior to the actual shooting, there is an occasion when it is alleged Ngo unexpectedly picked up TDN late at night and took him to the Mekong Club; and when there, Ngo spoke to TVT and Dinh, and then took TDN home without explanation. This is the first reference in the evidence to the accused Dinh, and the only reference to him in the evidence, prior to the evening of the shooting. It is, of course, extremely vague, and does not implicate him in the shooting. 20    About a month before the shooting Ngo took TDN and drove past Newman's home. On one of these occasions he also asked TDN on a couple of occasions to loan him his car, but TDN refused. There is also evidence that about two days before the actual shooting Ngo's car, a white Camry, was seen in the vicinity of Newman's house. 21    The Crown case is that on the evening of 5 September, following a staff meeting at the Mekong Club - of which Ngo was the founder and honorary president, and in respect of which he had access to the petty cash funds which it is alleged were used to purchase the various guns, including the Beretta allegedly used in the shooting - Ngo asked one Trung Duong to relieve Dinh, who worked at the club as a barman. Trung Duong did so. 22    Four persons were allegedly seen by the doorman to leave the club at about 8.30 pm, namely Ngo, Dao, TVT and Dinh. The doorman described Dinh as wearing an army type jacket. Although in an earlier statement the doorman said that TVT left a little later, his evidence in both trials was that they all left at about 8.30. 23    There followed what has been described as a flurry of phone calls involving three mobile phones. It is not necessary for present purposes to describe who had which phone, or the purpose of all of the calls. But TVT's evidence in effect was that in due course he and Dinh were seated in Dao's green Ford motor vehicle, which was driven by Dao. 24    The car drove to the vicinity of Newman's house, where it stopped and parked. TVT then claims that he saw Dinh take out of a bag a pair of gloves and a .32 calibre pistol. The vehicle waited there about half an hour until John Newman arrived home in his car, at which time Dao, according to TVT, slowly drove the green Ford up the street, Dinh got out of the car, ran up to the driveway, and whilst Newman and his fiancee, Lucy Wang, were putting a cover on the car, Dinh fired four shots, three of which hit Newman, fatally injuring him. Dinh then jumped in, and they drove off. 25    Lucy Wang gave evidence that she saw a man dressed in an army type jacket and army jacket hood firing the shots, and she also saw the green Ford. 26    As the green Ford was driving off, a white Camry came down the street going in the other direction. The Crown claims that this was a vehicle driven by Ngo. TVT says he saw the Camry coming in the opposite direction, but could not say who was driving. 27    The green Ford then drove to Cabramatta Road. According to TVT, a phone call was made from the car by Dinh, speaking to Ngo, asking where he was. The green Ford drove to a nearby service station. Dinh put the gun and jacket into a bag, got out of the car, and a couple of minutes later returned without the bag, whereupon Dao drove Dinh and TVT back to the Mekong Club, where they arrived at about 9.40 pm. 28    The subsequent movements of Ngo that evening can, it is claimed, be traced through mobile telephone calls. It appears that he went to a place called Voyager Point, which I understand is near Heathcote, or at least along Heathcote Road. 29    Some four years later a search was made by police divers at Voyager Point, and they found a .32 calibre Beretta pistol. Tests on the firing pin with the cartridges used in the shooting indicate that that was the gun used in the shooting. 30    At the second trial, although Ngo denied being in the vicinity of Newman's home that evening, he admitted being in the Voyager Point area, but gave an explanation as to how he came to be there, relating to delivering a press release to a Vietnamese newspaper, and being diverted by road closures. He subsequently returned to the Mekong Club, where he is alleged to have said to TDN, "We did it." 31    The Crown can therefore only point to Dinh's involvement on the day of the shooting, but claims that Dinh used the same weapon as that used in at least one of the previous attempts to shoot Newman at his home, and which it is claimed was purchased on Ngo's instructions and which it is claimed disposed of at Voyager Point after the shooting. 32    The Crown also claims that Dao was used in the purchase of the gun, and was used in two of the earlier attempts as the driver, and also in the successful attempt. TVT was involved in all firearms purchases, and all three earlier attempts, and in the two previous plans which did not result in attempts. 33    The Crown alleges that the reason that he was manoeuvred into the car was to involve him on the actual night of the shooting, so that he was implicated, and therefore to discourage him from telling anyone about what he knew about the earlier attempts. The same firearm as was used in the previous attempts, and the same car as was used in two of the three previous attempts were also used. 34    The case, therefore, that the Crown seeks to present, is that Ngo was the instigator and procurer of the killing, that Dinh was the shooter, Dao the driver of the getaway car; and TVT was an accomplice present in the car, as I say, possibly put in that position so as to minimize the risk of him reporting to the police what he knew of Ngo's involvement in the earlier attempts. 35    The principles relating to separate trials have recently been reviewed and summarised in two decisions of the Court of Criminal Appeal; R v Fernando [1999] NSWCCA 66, and R v Georgio [1999] NSWCCA 125. In Fernando, reference was made to a number of cases to the effect that where two or more persons are engaged in a common enterprise, it is generally proper that they be tried together: for example, R v Grondkowski [1946] 1 KB 369, R v Beavan (1952) 69 WN(NSW) 140, Webb and Hay v The Queen (1994) 181 CLR 41, particularly at 89 per Toohey J. The reasons in favour of joint trials are set out in the judgments, and it is not necessary for me to repeat them now. 36 However, both cases acknowledge an exceptional case of the nature referred to in R v Midis, (CCA - 27 March 1991) and R v Baartman (CCA - 6 October 1994), namely:

"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."

37    In his judgment of 15 December 1999, Wood CJ at CL said at para [64] and following:

"In these circumstances I have reached the conclusion that there is sufficient evidence of Dao's participation in a [sic] concert with Ngo, TVT and TDN from early 1994 ... The position, is however, otherwise in relation to Dinh. The case against him depends almost exclusively on TVT's evidence. The extent to which there is corroboration is minimal, and TVT alone, at this stage, fixes him with direct participation in the murder.

The risk of prejudice is substantial so far as the evidence of the earlier events might be seen by the jury as reinforcing TVT's credibility on this issue central to Dinh's case - a use that while potentially compelling for a lay jury, is not one permissible under the law. I do not consider it possible to overcome the resulting prejudice by directions to the jury."

38    His Honour was concerned whether the enterprise which Dinh allegedly joined on 5 September was the same enterprise that Ngo, Dao, TVT and TDN had been involved in since early 1994, and went on:

"The case is one where I am not, at this stage, persuaded, for the reasons outlined, that the evidence of events earlier than 5 September 1994, can clearly be shown to be admissible against Dinh.".

39    Now that the evidence in the joint trial of Ngo and Dao has been completed, it can, in my view, reasonably be asserted that on the Crown case the enterprise which Dinh allegedly joined on 5 September was the same enterprise in which Ngo, Dao, TVT and TDN had been engaged for some months; namely the killing of Newman at the behest of Ngo. 40    It follows that the acts and declarations of the other alleged participants in the common enterprise are admissible to prove the nature of the enterprise, though not the accused Dinh's participation in it: R v Masters (1992) 26 NSWLR 450 at 461, R v Chai (1992) 27 NSWLR 153 at 191, R v Louden (1995) 37 NSWLR 683, R v TDN (CCA - 23 September 1998). 41 Not only is the evidence admissible against Dinh on this basis, but although some of it may be excluded under ss 135 and 137, or its use limited under s 136 of the Evidence Act 1995, a lot of it will be necessary to enable the Crown to paint a complete picture of what it claims is its case against Dinh, including motive or reason for his involvement, the purchase by TVT and/or TDN of the weapon used in the shooting at the behest of Ngo, and with funds to which Ngo had access through the Mekong Club, the presence of Ngo in the Camry near the scene at the time of the shooting, his involvement in the relevant telephone calls on mobiles at the time, including the call by Dinh to Ngo shortly after the shooting, and Ngo's alleged subsequent disposal of the murder weapon; also the botched previous attempts explain the need to recruit another shooter. These are all surrounding circumstances which it would appear are admissible in the trial against Dinh. 42    It appears that the position as it appeared to Wood CJ at CL in December 1999 no longer applies, in that a large amount of the evidence of events prior to 5 September is admissible against Dinh, and it is accordingly appropriate to reconsider the question of a separate trial: R v Saunders (1994) 72 A Crim R 347. 43 Prima facie they should all be tried together, that is the alleged shooter, the alleged instigator / procurer, and the alleged driver of the getaway car should all be tried together for the reasons set out in the authorities to which I have referred. 44 There still remains the exceptional cases referred to in Midis and Baartman. It is to be noted that the requirements to fulfil that exception are cumulative, not alternative. 45    I accept that the case against Dinh is significantly weaker than the case against the others, and that some of the evidence is inadmissible against him, though not to the same extent as previously thought. But I do not see it as a case where the evidence admissible against the other accused and not admissible against him contains material highly prejudicial to Dinh. 46    The jury will be instructed, and I believe will clearly understand, that the Crown case against Dinh is considerably different to that against the others, because of his late alleged involvement. I do not consider that there is a real risk that the weaker Crown case against him will be made immeasurably stronger by reason of any material not admissible against him, or that any positive injustice would be caused to him in a joint trial. 47    It was submitted on Dinh's behalf that if he gets caught in a joint trial, there is a lot of evidence from TVT relating to the earlier events, which is corroborated, and that this may tend to strengthen the credibility of TVT's evidence in respect of matters relating to Dinh, where there is no corroboration, particularly the events of what took place outside Newman's house on the evening of 5 September. 48    This is true, but I do not consider it as a ground for a separate trial. If the evidence of TVT in relation to the earlier events is corroborated, it may bolster TVT's credibility generally, and therefore in relation to his version of what was in the car, and what parts they played on the relevant evening; and provided the evidence is admissible against Dinh, as I believe most of it is, there can be no objection to this as a general principle. 49    There is, however, one particular danger: that TVT being an accomplice, and being in the car on 5 September, may seek to minimize his own part by implicating another, Dinh, or by exaggerating the part played by Dinh. 50    Indeed, it may be suggested that TVT was the shooter himself, but that he implicates Dinh as such and seeks to bolster his credit on that point - on which there is little or no corroboration - by relying on the evidence which corroborates him in relation to the earlier events. This, I accept, is a real possibility. But, I believe it is a possibility which can be explained to, and understood by the jury, and one which they will be readily able to appreciate. 51    It follows that grounds for departing from the general rule have not been established, and accordingly it is appropriate that those charged with the killing of Newman as a joint enterprise should be tried jointly. 52    Another relevant consideration, although of significantly less importance, is that Mr Newman was killed on 5 September 1994. Now six years have elapsed, and the trials are still pending. This is an undesirable delay, particularly as it involves the killing of a public figure, and therefore gives rise to more than usual public interest. If separate trials are maintained, it would be appropriate for Ngo to be tried first as the alleged instigator and mastermind, along with Dao. There would then need to be a further delay before the trial of Dinh, to enable adverse publicity to die down. 53    In practical terms, that would mean a delay of at least a further year before the trial of Dinh. Such further delay is undesirable. As I say, it is a relevant consideration, but would not be significant if a joint trial would cause unfair prejudice, or other form of injustice to Dinh. For the reasons given, I do not consider that it will. 54    I revoke the order directing a separate trial in relation to Dinh, and grant leave to the Crown, if it so desires, to present a joint indictment against Ngo, Dao and Dinh.

oOo

Last Modified: 07/13/2001