R v Ngo

[2000] NSWSC 1254

CITATION:	R v Ngo; Dao; Dinh [2000] NSWSC 1254
CURRENT JURISDICTION:	Common Law Division Criminal
FILE NUMBER(S):	SC 70086/98; 70223/98; 70059/99
HEARING DATE(S):	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) Legal Aid Commission of NSW (Dinh)
CATCHWORDS:	CRIMINAL LAW & PROCEDURE - Restriction of access to public galleries - special transport arrangements for jury - CRIMINAL LAW & PROCEDURE - jury - evidence of jury's deliberations
LEGISLATION CITED:	Jury Act 1977, s 54(a)
CASES CITED:	Scott v Scott [1913] AC 417 Ellis v Deheer [1922] 2 KB 113 R v Renaldi (1993) 68 A Crim R 284 R v Emmett (1988) 14 NSWLR 327 R v Brown (1907) 7 SR 290 R v Richards (1999) 107 A Crim R 318
DECISION:	See paras 2, 3 & 29.

THE SUPREME COURT
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

1    HIS HONOUR: By notice of motion filed on 24 August 2000, the Crown seeks a number of orders relating to the conduct of the trial, namely,

1. That access to the public and press galleries be restricted to persons approved by the Court.
2. That the Sheriff provide transportation for the jurors to and from court in a manner deemed appropriate by the Sheriff.
3. That from the time the jury retire to consider their verdicts until the time of the verdicts being returned, the jury are to be sequestered.
4. That this application be heard in camera.

2    In relation to the fourth order sought, without objection from any party, I made an order for non publication relating to the hearing of all matters relating to this application. That order remains in force. 3    In relation to access to the public and press galleries during the course of the trial, I would not be prepared to make such an order on the evidence presently available to me, having regard to the general principle that the administration of justice should be conducted in courts open to the public: Scott v Scott [1913] AC 417. 4 There was evidence filed in support of the application to the effect that a number of the witnesses were scared of giving evidence for various reasons. A lot of that evidence was objected to but, without the necessity to rule on the admissibility of the evidence, the fact that a number of proposed witnesses were scared of giving evidence would not of itself be sufficient to limit access to the public and press galleries to only accredited persons. As I say, I am not prepared to make any such order at the present time. 5 If circumstances change and later justify some form of restriction, I may make an order requiring those entering the public gallery to give their names and addresses to the court officers. But at this stage no cause has been shown for even an order of that nature. 6 The second order sought, relating to the transportation of the jurors to and from the court, is opposed by counsel on behalf of the accused Ngo and Dinh, but not opposed on behalf of the accused Dao. 7 I find the opposition to an order of this nature rather surprising. I would have thought that accused persons would be just as anxious as the Crown to preserve the integrity and security of the jury, particularly if they are innocent. 8 The main objection appears to be that the making of special arrangements will lead the jury to be biased against the accused, because they may believe that they have particular records, or have made threats, or something of that nature. I shall deal with this aspect in due course. 9 The application for the transport arrangements was initially supported by evidence relating to what happened to the jury in the previous trial of the accused Ngo and Dao, where the jury was unable to agree. That evidence, which was of a hearsay nature, was to the effect that after the trial a number of jurors approached Detective Superintendent Kaldas, who was the senior investigator in the investigation resulting in the arrest of the accused persons, and requested a meeting. Subsequently, those jurors met with him and, purporting to speak on behalf of themselves and all the other jurors except one, told him that during the first few days of the commencement of the trial, the other juror had commenced asserting the innocence of the accused Ngo and Dao, and as soon as the jury retired, requested a vote to be taken immediately, and said that it would be impossible for them to reach a unanimous verdict. 10 They also told him that on one occasion he attempted to take home his trial notebook, although they had been told this was not to be done, and he refused to accept the truth or weight of any of the evidence, and that on several occasions whilst being driven home after court, he asked the driver to drop him off in the city, although the driver had been told to take them directly home. 11 The admissibility of the evidence was objected to by Mr Nicholson SC on behalf of the accused Ngo, and by Mr Hoenig on behalf of the accused Dinh. I was referred to a number of cases, including Ellis v Deheer [1922] 2 KB 113, R v Renaldi (1993) 68 A Crim R 284, R v Emmett (1988) 14 NSWLR 327, where the courts have consistently refused to accept evidence of what has transpired in the course of the jury deliberations on the ground of public policy in order to preserve the secrecy, anonymity and integrity of the jury deliberations. 12 A number of the cases are distinguishable; for example, what was being sought in Ellis v Deheer and in a number of other cases, was to set aside the verdict which had been announced by the foreman of the jury, on the ground that it did not represent the unanimous view of the jury, or on the ground that some of the jurors did not understand the effect of the verdict which had been given. That is a different situation to the situation which applies here, where there was no verdict. 13    Nevertheless, the principle has been expressed in general terms. A case which is much closer to the present situation, and which was referred to with approval in R v Emmett, is R v Brown (1907) 7 SR 290. In that case, Mr Brown appears to have taken an attitude very similar to that taken by the minority juror in the earlier trial. The proceedings were in the nature of a motion to attach him for contempt for failing to fulfil his duty as a juror, to attend to the evidence and return a verdict according to the evidence. There were affidavits from a number of the jurors which the Full Court was prepared to accept were true. However, the court refused to admit the evidence and Darley CJ said at 299:

" … I have come to the conclusion that the authorities are all one way, and that the Court cannot look at the affidavits of jurymen for any purpose, whether it is for the purpose of granting a new trial, or for the purpose of establishing the misconduct of a juryman. We cannot look at the affidavits of jurors, or act upon them. The more I think of the matter, the more I feel the extreme danger that would follow if it were decided generally that affidavits of what occurred in the jury room might be considered. In the first place, jurymen themselves would enter the jury room with fear existing in their minds as to what might take place between themselves and their jurymen. There might be an extreme case where, after hearing the evidence, 11 jurymen were for a conviction, and one juryman might stand out for an acquittal, and properly so, and then this one, being afraid of what might be done by his fellow-jurymen, who were willing and anxious that there should be a conviction, might be tempted, under the threat of exposure, although he had acted perfectly correctly, and within his constitutional rights, to yield to other jurymen, and in this way an innocent man might be found guilty."

14    It may be argued that even this case is distinguishable in the present case, where the purpose of the evidence is not to set aside a verdict, or to punish the minority juror, but to ensure the integrity of a jury in a future trial, but the principle, is stated in absolute terms in a decision of the Full Court of this state, by which I am bound, and I do not feel that sitting as a judge at first instance I should depart from it. I make the point that in the present case there is no evidence from any of the jurors, but there is hearsay evidence from the Detective Inspector admissible on an interlocutory application of this nature of what he and his fellow officers were told by the jurors. However, the public policy considerations must be the same, and for this reason, I reject the affidavit evidence of what occurred in the course of the jury's deliberations. 15    There is of course an exception recognised in R v Emmett at p 334 relating to evidence of jurors on matters which are extrinsic to the deliberations of the jury. Therefore, the evidence of the taking home of the notebook, and of the juror being dropped off in the city would be admissible. But these matters are of no significance, unless one adds the ingredient that they were the actions of the juror who did not agree with the other jurors in their deliberations. 16 There are however, in my view, other reasons for taking reasonable steps to secure the security of the jury, and the integrity of its deliberations. The victim of this killing was a member of parliament. The Crown allegation is that he was killed for political purposes. The matter can therefore be described as a high profile trial, although let me hasten to add, this is not because the accused are in any different position, or have different or lesser rights than any other accused, but because of the profile of the deceased, there can be expected to be a higher than normal public interest in the outcome of the proceedings. 17 There has, in respect of two of the accused, already been a jury unable to agree. That second trial, where the jury were unable to agree, took in excess of three and a half months. With an additional accused, it cannot be expected that the new trial will take any less. In these circumstances, I regard it as proper and desirable to take all reasonable steps to ensure the security and integrity of the jury and its deliberations. 18 It must be born in mind that until the mid 1960's, in a trial of this nature the jury would have been sequestered from the first day of the trial until its conclusion. There is still power, for proper reason, to make such an order under the Jury Act 1977, s 54 (a). 19 Indeed, it is only since 1988 that jurors have been permitted to separate after they have retired to consider their verdict. That is also subject to the order of the trial judge. 20 Having the jurors collected from their homes and delivered back to their homes every evening is a much lesser restriction than having them sequestered for the whole of a three month trial. The combination of factors to which I refer make it important to ensure that all reasonable steps be taken to secure their integrity. Causing them to be picked up and delivered home is, I believe, a reasonable precaution in this regard. 21 It was submitted, however, that there is an apprehension that this process would result in the jury being biased against the accused. Mr Nicholson SC expressed it this way; "An element of hysteria will be permeated to the jury, which may well understand that in this case their security has to be secured because they are in danger, or the system cannot cope with these people - that is the accused - who must be heinous beyond belief." 22 I consider this is a gross exaggeration of anything that the jury could possibly believe or suspect. Put more mildly, the submission can be formulated by saying that members of the jury who have sat on previous trials, particularly long trials, where such precautions were not taken, may have a suspicion that the special precautions are being taken because of the bad character or other characteristics of the accused. 23 In R v Richards (1999) 107 A Crim R 318, an appeal was brought against the making of various orders, including an order for transport of the jury similar to that proposed in the present case, by a District Court trial judge, in respect of an impending fourth trial of two accused, where one jury had disagreed because of the recalcitrance of one juror, and in another trial an approach had been made to one of the jurors. 24 One of the objections to the orders was similar to the present, it was expressed (at p 322) as being that the special treatment of the jurors would derogate from the fair trial to which the accused were entitled as a matter of law. In that case there was also the question of added publicity and the cumulative effect of that publicity, as well as the special order for transport of the jurors. 25 The Court of Criminal Appeal rejected the submission, and noted that the trial judge had in mind giving a specific direction that no adverse inference should be drawn with respect to the accused, in order to minimize any adverse consequences that may flow, but do not necessarily flow. Whilst one can suggest that some jurors may possibly speculate as to the reason for the special arrangements, and may possibly infer that it is because of some matter adverse to one or more of the accused, these matters are, I believe, mere speculation. 26 The jury are going to be engaged in a long trial. For them to be driven to and from their homes each day does not of itself suggest to any reasonable minded person that there is in that anything adverse to any of the accused. 27 I do not see, as a matter of reasonable practicality, that it would give rise to any bias against the accused. It may be preferable to say nothing, or merely to say that the transport arrangements are being made for their convenience. But, if requested, I would be prepared to give a direction that they should not attribute it in any way to any wrongful conduct or fear of the defendants. I would also be prepared to consider any alternative formulation of a direction that counsel may suggest. I am prepared to make order 2. 28 For similar reasons, I am inclined to make order 3. Although it is no longer the norm, it is not unique these days for juries, in long trials, to be sequestered during their deliberations. As I said earlier, it is only since 1988 that they have been permitted to separate during such time. 29 It is not necessary to make order 3 at this stage, but I indicate that subject to what happens at the trial, it would be my present intention to do so when the time comes. I therefore repeat the non publication order and make order 2 as in the notice of motion filed on 24 August 2000.

oOo

Last Modified: 07/18/2001