R v Ngo - [2003] NSWCCA 82

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Ngo [2003] NSWCCA 82 revised - 16/04/2003

FILE NUMBER(S):
60484/01

HEARING DATE(S): 13 - 15 November 2002

JUDGMENT DATE: 03/04/2003

PARTIES:
Regina
Phuong Canh Ngo (Appellant)

JUDGMENT OF: Stein JA Sully J Levine J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70086/98

LOWER COURT JUDICIAL OFFICER: Dunford J

COUNSEL:
T Game SC/P Pearsall (Appellant)
R Hulme SC/E Wilkins (Crown)

SOLICITORS:
Selby Levitt (Appellant)
S E O'Connor (Crown)

CATCHWORDS:
CRIMINAL LAW - JURY - juror inadvertently exposed to inadmissible evidence - whether falure to discharge jury - whether incident gave rise to reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not, or will not discharge its task impartially - whether direction adequate to correct any prejudice or perception of prejudice to the accused EVIDENCE - whether decision to allow witnesses to give evidence by videolink infringed the right of the accused to a fair trial - whether s 20A of the Evidence (Audio and Audio Visual Links) Act 1998 provides that an accused must be able to see witnesses in all circumstances - whether accused has a fundamental right to confront accuser where issues of identity involved - whether trial judge properly balanced the forensic disadvantage suffered by the accused with the rights of witnesses - whether the decision to allow the witnesses to give videolink evidence prevented the accused from attending a part of the proceedings (Supreme Court Rules Part 75 rule 2(8)(b)) EVIDENCE - whether inadequate direction as to lies - whether inadequate direction as to accomplice evidence

LEGISLATION CITED:
Evidence Act 1995, ss 55, 56, 87(1)(b) and (c), 108(3)(b), 137, 164, 165(1), (1)(d), (2)(a) (b) and (c), (3),(4) and (5)
Evidence (Audio and Audio Visual Links) Act 1998,
ss 5(1A), 5(2), 5B(1), 5B(2)(a), (b), (c) and (d), (2A), (3), 20A(a)
Evidence (Children) Act 1997
Supreme Court Rules (Part 36 rule 2A(1) and Part 75 rule 2(8)(b)
European Convention on Human Rights Article 6
Charter of Rights and Freedoms (Canada)

DECISION:
Appeal against conviction dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60484/01
STEIN JA
SULLY J
LEVINE J
Thursday, 3 April 2003

Regina v Phuong Canh NGO

Judgment

THE COURT:
Introduction
The appellant, Phuong Canh Ngo, appeals against his conviction for the offence of the murder of John Newman on 5 September 1994. On 29 June 2001 the jury returned a verdict of guilty and the appellant was sentenced to life imprisonment on 14 November 2001. Two other accused, David Dinh and Quang Dao were acquitted.
Grounds of Appeal
The further amended Grounds of Appeal dated 8 November 2002 included 18 grounds. However, at the hearing of the appeal, Mr Game SC appearing on behalf of the appellant, reduced the grounds relied on to the following which are summarised in brief form.
1.            Failure to discharge jury
2.            Receipt of evidence of two witnesses by video link
3.            Admission of identification evidence of Mrs L
4.            Inadequate directions on identification evidence of Mr and Mrs L
8.            Inadequate directions on evidence of T and N
10.          Inadequate direction as to lies
11.          Admissibility of officer O’Connor’s evidence
12.Failure to instruct jury as to the significance of the appellant not seeking waiver of the two-year rule
14.Inadequate directions if jury not satisfied that recovered gun was murder weapon
15.          Failure to direct jury on significance of acquittal of other accused
15B.Error in leaving to jury as possible basis of conviction that shooter was T
18.Inadequate direction as to limits of relevance of evidence of previous attempts and plans to kill victim
Summary of the Crown case at trial
On the evening of 5 September 1994 John Newman was killed when he was shot twice in the chest. At the time, Mr Newman was standing in the driveway of his Cabramatta home, with his fiancée Lucy Wang.
The victim was a member of the Australian Labor Party (the ALP) and represented the safe ALP seat of Cabramatta in the Legislative Assembly of the New South Wales Parliament. In March 1994, Mr Newman had successfully retained pre-selection for the seat for the upcoming 1995 State Election.
The appellant was a councillor on the Fairfield City Council and stood unsuccessfully as an independent candidate for the seat of Cabramatta in the 1991 State election. In 1993 the appellant joined the ALP following discussions with various party officials about his political ambitions. From this time the appellant and Mr Newman were considered to be political rivals. The Crown contended that the appellant wanted to become a member of the NSW Parliament and believed that Mr Newman was a barrier to the fulfilment of his ambition.
The Mekong Club, established by the appellant, opened in 1993. The appellant was the honorary president of the Club from its inception and at all relevant times. He was not employed by the Club, but it was commonly understood by staff that he was in charge. It was the Crown case that the appellant organised the assassination of Mr Newman through the Mekong Club and club employees.
The appellant had the principal use of a white Toyota Camry owned by the Mekong Club. The vehicle was fitted with a fixed car phone. In addition, the Club leased a mobile phone which was used principally by the appellant and by club managers on duty. The practice at the club was to leave the phone on its charger in the manager’s office when it was not in use. The appellant also had a mobile phone provided by the Fairfield Council.
The individuals alleged by the Crown to have assisted the appellant to carry out the murder plan were David Dinh (Dinh) and Quang Dao (Dao), employees of the club. In addition, a number of witnesses in the Crown case, including T and N had been employees of the club at the time of the murder.
At the relevant time in 1994 Dao, one of Mr Ngo’s associates and an employee of the Mekong Club, drove a green Ford Fairlane 1985 ZL model, which was registered in his father’s name.
The Crown case was that the appellant had directed T and N to make inquiries regarding individuals who may be prepared to carry out the murder of Mr Newman and about obtaining firearms for that purpose. In carrying out instructions, T and N spoke to various individuals about the possibility of arranging for someone to kill Mr Newman. These discussions proved ultimately fruitless. A number of firearms were purchased with money from the petty cash fund of the Mekong Club. The firearms and related products obtained were: a .22 sawn off rifle; a .32 automatic pistol and a magazine of bullets; and a small black gun four to five inches long; a Ruger pistol with two magazines, some bullets, a silencer and a manual (later lost or stolen before the murder); a silver .45 Magnum pistol; and a silencer for the .32 pistol.
Three sisters who lived in close proximity to Mr Newman’s home gave evidence of seeing a Green Ford motor vehicle stopped near Mr Newman’s home on the evening of 3 September 1994. It was noted that the car remained for approximately an hour. One of the sisters testified that it would have been possible for passengers in the car to have seen the front gate of Mr Newman’s home. Other neighbours gave evidence of seeing a white four-door sedan in the proximity of Bowden Street, close to Mr Newman’s home, earlier in the afternoon.
Mr and Mrs L were returning to their home in Judith Avenue on the evening of 3 September 1994 at about 9.45 pm. Judith Avenue is close to the street in which Mr Newman lived. The couple noticed a man standing next to a white four-door sedan in Judith Avenue. Mr L said that he immediately identified the man as the appellant and told his wife this. Mrs L testified that although she thought the man looked familiar, she had not initially recognised him as the appellant, however, when her husband commented that the man was the appellant, she agreed that that was who he was.
It was the Crown case that the appellant, with others, was conducting surveillance of Mr Newman’s home on the night of 3 September 1994 in preparation for an attempt on his life.
To support the case that the appellant and his associates were in the proximity of Mr Newman’s home, the Crown led expert evidence from a Telstra employee, Mr Wilson. He said that mobile phone records indicated that on 3 September 1994 at 10.36 pm a phone call was made from the Camry car phone to the Mekong Club mobile which lasted 30 seconds. At the time of the call both phones were in cell 12, which covers an area that includes Mr Newman’s home. Later, at 10.47 pm a call was made from the Fairfield Council mobile to a landline. The Fairfield Council mobile phone was also within cell 12.
On the evening of 5 September 1994, Mr Newman attended the ALP Cabramatta branch monthly meeting at Cabravale Ex-Services Members’ Club. The meeting finished at about 9.15 pm and Mr Newman was seen leaving the premises after the meeting had concluded.
At approximately 9.30 pm Mr Newman arrived home and parked in his driveway. Ms Wang, his fiancée, came outside to help him put a tarpaulin over his vehicle. It was at this time that she heard a number of shots being fired and saw a single gunman firing shots in the direction of Mr Newman. Ms Wang said that she then saw the gunman run to a car, which she described as a dark green Ford. Mr Derek Mirfin, a neighbour, also reported seeing a car in front of Mr Newman’s home. He said that the car was moving slowly along the incorrect side of the road. Other residents reported seeing two cars leave the scene of the shooting. These witnesses had difficulty identifying each of the vehicles but there were reports of a green sedan and a white sedan.
A Mekong Club staff meeting was scheduled to start at 7 pm on 5 September 1994, however the meeting started at 7.30 pm. Various employees gave evidence that such meetings were usually informal, but that at this meeting minutes were taken and staff had been sent reminder notices. There was a lack of clear evidence as to the time that the meeting actually concluded. While the minutes recorded 8.45 pm as the finish time of the meeting, estimates ranged from 8 pm to 8.45 pm. Based on the evidence of staff and the fact that the Fairfield Council mobile phone was used for at least 10 minutes to receive a call at 8.27 pm, it was the Crown case that the minutes incorrectly recorded the meeting as having concluded at 8.45 pm and that the meeting in fact concluded at 8.15 pm. Many of the employee statements noted that the appellant arrived late for the meeting at around 7.50 pm, about half way through the meeting.

The Crown contended that the appellant had issued instructions to relieve those involved in the plan to kill Mr Newman from their work duties. The Crown case was that Dinh and Dao, in the green Ford, met the appellant, who was driving the white Camry, at the appellant’s home. T gave evidence that at 8.31 pm he used the Mekong Club mobile to call his girlfriend MP. After making the call he replaced it in the charger in the manager’s office. A little later, the girlfriend tried to call T on the Mekong Club mobile, which was answered by an unidentified man who said that T was unavailable. T deposed that he was telephoned by the appellant, who was calling on the Mekong Club mobile, and that the appellant asked him to bring the Fairfield Council mobile to the appellant’s home. It was the Crown case that the evidence of the phone call from T’s girlfriend corroborated T’s evidence of his possession of the Fairfield Council mobile, rather than the Mekong Club mobile at the time. Telstra records confirm that a call was made from MP’s home to the Mekong Club mobile at 8.41 pm lasting 12 seconds.
Following the appellant’s instructions, T left the Mekong Club and travelled to the appellant’s home. There he met with the appellant, Dinh and Dao. T then joined Dinh and Dao in the Ford. They travelled and parked near Mr Newman’s home. The Crown contended that the appellant also travelled to the vicinity of Mr Newman’s house in the white Camry. The shooting took place at approximately 9.30 pm.
The Crown case was that after the killing the appellant collected the murder weapon from Dinh at the intersection of Townview Road and Cabramatta Road and then drove to the Georges River at Voyager Point to dispose of the gun. Voyager Point is a small suburb immediately south of Hammondville. There was evidence from mobile phone records that the appellant was using the Camry phone within the 20 minute period following the shooting and that he drove from the Cabramatta/Bonnyrigg area, through the Liverpool CBD and then south east to Hammondville. The appellant was later seen at the Mekong Club at around 10.30 pm.
The appellant participated in two interviews with police, one on 14 September 1994 and one on 14 December 1994. A coronial inquiry into the death of Mr Newman was also held. During the inquest the significance of the Telstra records in indicating movements on the evening became apparent. Following the Inquest, the police were advised by Counsel assisting the Coroner to search the Georges River in the Voyager Point area for the weapon. Police then searched the Georges River at Voyager Point. Neither the appellant nor his counsel were advised that the search was to take place. The police located a pistol in the water. It had been immersed for a period of time. Experts could neither exclude nor confirm that this weapon was used in the murder because of the extent of deterioration.
Summary of the appellant’s case at trial
The appellant’s case at trial was that there were other individuals who may have organised the killing of Mr Newman. The appellant led evidence of some domestic disharmony between Ms Wang and Mr Newman. A neighbour had heard a disagreement between Mr Newman and Ms Wang in May 1994 and from time to time she heard reasonably loud voices emanating from the Newman home. In addition, the appellant led evidence that Mr Newman was not popular with the staff in his electoral office and with his colleagues in the ALP.
The appellant also sought to impeach the credibility of key crown witnesses, T and N and to highlight discrepancies in their testimony.
Ground 1 – failure to discharge the jury
The appellant submitted that his Honour erred when he did not discharge the jury on 9 May 2001 (the 41st day of the trial). On this day, during the cross examination of a ballistics witness by defence counsel, the prosecutor was reading a newspaper article at the bar table.
The ‘newspaper’ was a photocopy of an article containing a headline “ICAC to probe Viet game club”. The concern was that if the jury saw the headline, in the context of the trial, they would believe that it related to the Mekong Club, central to so much of the evidence placed before them by the Crown. They would then relate this to the appellant to his prejudice.
In the absence of the jury Mr Nicholson SC, trial counsel appearing for the appellant, referred his Honour to what he had seen the Crown Prosecutor reading. He said that he was sure that it was not intentional but his Honour should remind the prosecutor to be sensitive. Mr Nicholson was concerned with what the jury may have seen. His Honour said to the Crown “I saw you reading it, I didn’t see what it was. The way you were holding it I wouldn’t have thought the jury would have seen it. Just be careful anyhow”. The prosecutor said that he would, however he added that there was no way that the jury could have read the headline.
Mr Nicholson then read to the Court a note from his instructing solicitor which said that the forelady of the jury had looked towards the article and spoken to a female juror next to her. The prosecutor stated that he was leaning back in his chair and reading the article and did not believe that the jury could possibly have read it as he had been looking at it from under the lectern.
Counsel for the appellant then asked for a demonstration with him sitting in the forewoman’s chair. This apparently occurred although we query, with hindsight, whether this was necessarily a wise course to adopt. Mr Nicholson said that he could see the words “ICAC”, “probe”, “Viet” and “game Club”.
His Honour then said that he had seen the forewoman and the juror next to her speaking together. However, he did not relate it to what the Crown was reading and he did not see what it was that he was reading. He had assumed that the jurors were commenting on photographic exhibits relevant to the cross-examination then proceeding.
The prosecutor suggested to the Judge that if defence counsel was concerned, the proper thing to do was to ask the forewoman whether she saw anything. Mr Nicholson agreed and his Honour acquiesced. Again, we question, albeit with hindsight, to whether this was a wise course to adopt.
Be that as it may, the forewoman was then sworn and examined by his Honour. She told his Honour that she could see what looked like the back of a newspaper being read by the prosecutor. She could only see the letters “ICAC”. That was all. She spoke to the juror next to her about this and also “a bit of comment about other [unrelated] stuff”.
Mr Nicholson asked whether the Judge wanted to explore all that was said between the two jurors. His Honour said that he did not think that he should. We can well understand why his Honour would be cautious.
The luncheon adjournment was then taken and upon the resumption Mr Nicholson asked that the jury be discharged.
He submitted that there was immense prejudice to his client since he was the President of the Mekong Club and, on the Crown case, running the club. Moreover, what had occurred could not be cured by a direction particularly since the forewoman had been called at the request of the Crown, to which he had acceded.
The prosecutor again apologised and emphasised that what he did was unintentional. He argued however, that the matter could be cured by a direction.
His Honour then ruled on the application and declined to discharge the jury. During the course of giving reasons his Honour said:
“The piece of paper which the Crown Prosecutor was reading has now been produced and it is a photostat of a page of a newspaper, the heading of which is “ICAC to Probe Viet Game Club” and the article goes on to refer to an investigation into the Mekong Club. There is no evidence that anyone saw any part of the paper other than the letters “I-C-A-C”, or that they could relate it to the accused or to the Mekong Club.”
His Honour then referred to counsel’s submission that the jury should be discharged because a second juror’s attention had been drawn to the paper.
Dunford J stated the test as follows:
“The test for a discharge of the jury in a case such as this is whether the incident is such that, notwithstanding a proposed or actual warning by the trial judge, the incident gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not, or will not, discharge its task impartially.”
His Honour concluded that the incident did not pose any risk of unfair prejudice to any of the accused (including the appellant). In particular, there was no evidence that anyone saw anything except the letters “ICAC”. His Honour expressed doubts that the accused would have been unfairly prejudiced even if the whole of the title had been inadvertently disclosed.
The question then arose as to whether a direction should be given to the jury. His Honour’s initial view was that it was better if nothing was said. The prosecutor proposed a draft form of direction. Mr Nicholson submitted that a direction be given, “perhaps this one” proposed by the Crown. One other defence counsel agreed to this course while the other preferred that nothing be said.

His Honour then gave the jury the following direction:
“A concern has been raised about a newspaper article that the Crown Prosecutor was reading at the bar table shortly before lunch. The concern that has been expressed is that whilst the newspaper article had nothing to do with this case, you might speculate that it does and you may speculate that it is prejudicial to the Crown or the defence. I give you a direction, that while the article has nothing to do with the case at all, you must not speculate about it, you must put it out of your minds and confine your attention to the evidence.”
Mr Game suggested that his Honour did not apply the correct test as to whether the jury should be discharged. He contended that the test should have been posed in terms of impermissible material going before the jury. However he accepts that not a great deal turns on this.
The principal concern outlined by Mr Game was that the suggestion of corruption in relation to the Mekong Club constituted evidence of bad character of the appellant and would be very prejudicial in the context of the Crown case. Further, the direction given by his Honour did not dispose of the prejudice. Mr Game submitted that the jury would have been most unlikely to have accepted what the judge said. Further, because the judge did not direct the forewoman not to speak about it to other jurors, it may be concluded that the entire jury would have learned about the newspaper.
The submission is an interesting one but purely speculative. It assumes that the jury would ignore his Honour’s direction, notwithstanding that it was given with the agreement of trial counsel for the appellant.
The fact of the matter is that the only evidence before his Honour was that the forewoman saw only the letters “ICAC”. She apparently communicated what she had seen to the juror next to her in a conversation which also included reference to other unrelated aspects of the trial. On the evidence there seems to have been no more than a momentary exchange between the jurors.
The note of Mr Nicholson’s instructing solicitor and Mr Nicholson’s demonstration do not detract from the evidence of the forewoman, the only real evidence before the court. The forewoman saw only the letters “ICAC” and then briefly mentioned something about what she had seen to a fellow juror. She saw no reference to a “Viet Club”, let alone the Mekong Club, which was not in the headline.

In our opinion, there was simply no evidence before the Court which could lead his Honour to conclude that there was any risk of unfair prejudice to the appellant or the other accused.
The Court will not interfere with the exercise of discretion unless it can be shown that the Judge acted on a wrong principle or that there was a miscarriage of justice, R v Ball (1960) 61 SR (NSW) 37, Maric v R (1978) 52 ALJR 631. The advantage of the trial Judge over the Court on appeal is manifest and expressed by Brereton J in Ball (at 41) as follows:
“Initially, if allegedly damaging and irrelevant material be volunteered, the matter lies at the discretion of the trial judge. He knows what is being stressed and what is not, he is alive to the temper and the atmosphere of the trial, he can appreciate suggestions and reactions not conveyed by a typed transcript. He is in a much better position than an appellate court to determine what is specious or technical pretext and what is genuine complaint. Therefore, in considering whether or not his discretion was rightly exercised, an appellate court must make due allowance for these factors, and must, as far as it can, place itself precisely in the trial judge’s shoes, before it interferes. Before substituting its own discretion for his, the appellate court must be clearly of the view, not that it would have exercised its discretion differently, but that the trial judge manifestly exercised his wrongly.”
In our view his Honour did not misstate the test to be applied (Webb v The Queen (1993-1994) 181 CLR 41). The type of bias alleged appears to fall within the fourth category mentioned by Deane J in Webb at 74 ¯ disqualification by extraneous information. It consists of knowledge on the part of a juror of some prejudicial but inadmissible fact or circumstance which gives rise to an apprehension of bias.
On the evidence, indeed even on the wider material before the Court, Dunford J was perfectly entitled to conclude that there was no reasonable apprehension of bias by the jury because the forewoman saw the letters “ICAC” and spoke briefly to the juror next to her about what she had seen. There simply was no basis to apprehend that the jury would make any connection between the letters “ICAC” on the paper and the Mekong Club or the appellant. There is plainly no foundation for the suggestion that there was a miscarriage of justice.
Nor do we accept that his Honour should have interrogated the forewoman further or called the fellow juror. If his Honour had done either he would have run the real risk of complaint that he had improperly separated the jury and impermissibly intruded into the jury’s role and deliberations. Any further inquiry of a juror by his Honour would have been fraught with danger.
As to the direction to the jury given by his Honour, Mr Game submitted that it exacerbated rather than overcame the prejudice. We do not accept this proposition. The jury were clearly told to put the document to one side since it had nothing to do with the case. They were told not to speculate about it. It was to be put out of their minds. The form of direction was generally supported by Mr Nicholson even though his Honour initially expressed the view that it might be better if nothing was said.
We do not accept that the direction exacerbated any prejudice. There is no reason to accept a proposition that the direction was not a sufficient cure to what had occurred. The direction was clear and the jury would have understood it. It cannot be assumed that the jury simply ignored the direction. A fair minded and informed person would perceive the warning of the trial Judge as adequate to combat any perceived bias, Webb at 55.
On the issue of the refusal to discharge the jury, there is no material which could lead the court to conclude that his Honour’s discretion miscarried. Accordingly this ground of appeal is dismissed.

Ground 2 – the video link evidence

This Ground of appeal concerns the successful Crown application at the trial to have the evidence of Mr L and Mrs L given by audiovisual link from a remote location. While the jury, the presiding Judge and counsel could hear and see the witnesses on the video screen, the appellant and the other accused were not permitted to see the witnesses. It seems that in order to overcome any prejudicial inference that might be drawn against the accused, a subterfuge was contrived in the form of a non-operating monitor in front of the accused to give the jury the impression that the accused were seeing the same material as the jury.
The appellant submitted that the trial Judge erred both in granting the application by the Crown under the Evidence (Audio and Audio Visual Links) Act 1998, and in restricting the appellant from seeing the faces of the witnesses.
Dunford J’s judgment on the application is reported: R v Ngo (No 2) (2001) 124 A Crim R 151. His Honour said that he was satisfied that the fears of the witnesses were genuine and that they would probably not give evidence if required to do so in the courtroom in the presence of the accused. He concluded that it was in the interests of the administration of justice to make the order.
Dunford J then addressed what he described as the more substantial objection. Both witnesses said that they had met the appellant and were familiar with his appearance from newspapers and television.
It was submitted at the trial that since issues of identity were involved, the appellant should be entitled to see the witnesses because otherwise he would not have the opportunity to properly contest that evidence. His Honour said at [18]:
“I gave this submission serious consideration, but ultimately rejected it because the issue is not whether Phuong Ngo could identify the witnesses, but whether the witnesses could identify Phuong Ngo. As a councillor and prominent local identity it is apparent that Phuong Ngo would have met many of the local citizens, and it would not be expected that he would remember them all, and I have no doubt that Mr L would come into this category.”
His Honour noted the general rule in a criminal jury trial that the Crown case be presented in the presence and hearing of the accused. An accused should normally be able to confront his accusers. Dunford J however noted that both statutory and common law exceptions had been made to this rule, eg the Evidence (Children) Act 1997. The trial Judge referred to cases where an accused was not permitted to see an accuser but could still hear what the witness said.
His Honour referred to s 20A(a) of the legislation and said that it:
“… requires that persons in the courtroom must be able to see and hear the person giving the evidence and vice versa. I am satisfied that the facilities in the present case will be such so that everyone in the courtroom, except the accused, will be able to see and hear the witnesses, and the accused will be able to hear them though not see them. Section 20A is a general provision and it refers to persons in the courtroom in general, without specifying any particular persons in the courtroom, and it does not in terms require that each party must be able to see the witness.”
The Judge continued:
“Moreover, the Act is not to exclude or limit any other law that makes provision for the taking of evidence in this State, and so is not to be interpreted as limiting the operation of Pt 36 r 2A of the Supreme Court Rules. Those Rules still apply and they do not require that every person including every accused be able to see, as well as hear, the witnesses. Part 75 r 8 prevents an order being made under Pt 36 r 2A preventing an accused from “attending” any part of the proceedings, except with his or her consent, but there is no requirement in the rule that the accused must be to “see” each of the witnesses.”
We set forth the relevant provisions of the Evidence (Audio and Audio Visual Links) Act 1998 (the Act) as amended by Act No 16 of 2000 and in operation at the time of the trial. As to the application of the statute section 5(1A) provides:
“This Act is not intended to exclude or limit the operation of any other law of the State or another place that makes provision for the taking of evidence or making of submissions in the State for the purposes of a proceeding in the State.”
Section 5(2) states that:
“Unless a contrary intention is shown, nothing in this Act limits or otherwise affects any discretion that a NSW court or a recognised court has with respect to the conduct of a proceeding.”
Section 5B is important to this appeal and relevantly states:
“(1)Subject to any applicable rules of court and subsection (2A), a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.
(2)          The court must not make such a direction if:
(a)          the necessary facilities are unavailable or cannot
reasonably be made available, or
(b)the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or
(c)          the court is satisfied that the direction would be
unfair to the party, or
(d)          the court is satisfied that the person in respect of
whom the direction is sought will not give evidence or make the submission.
(2A)       …
(3)In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.”
Also relevant to the appellant’s submission is s 20A which provides as follows:
“Evidence must not be given, and a submission must not be made, by audio visual link under this Act unless the courtroom or other place where a NSW court is sitting, and the place where the evidence would be given or the submission would be made, are equipped with audio visual link facilities that enable:
(a)persons who are at the courtroom or other place to see and hear the person giving the evidence or making the submission, ….”
It is submitted on behalf of the appellant that the trial Judge erred in granting the Crown application and in restricting the appellant from seeing the faces of the two witnesses. Mr Game submits that his Honour erred in concluding that the granting of the application would not be unfair to the appellant (s 5B(2)(c)).
It is submitted that his Honour was not in a position to find, as he did, that the issue was whether the witnesses could identify the appellant and not vice versa. This was because if the accused was prevented from seeing the witnesses’ faces, he could not instruct counsel as to whether he recognised them; and if he did, whether there were any matters which might affect their reliability or credibility. This was all the more so because the jury believed that the appellant could see the witnesses. The jury would assess the reliability of the witnesses on the assumption that there was no basis to challenge their credibility.
It is further submitted that his Honour was wrong to conclude that the making of the direction was in the interests of the administration of justice (s 5B(3)). In so finding his Honour failed to address himself to the forensic disadvantage suffered by the appellant, who was effectively denied the opportunity to test the witnesses so that their demeanour could be assessed.
Mr Game also submitted that his Honour’s construction of s 20A of the Act was erroneous and that Part 36 rule 2A of the Supreme Court Rules did in fact require that a party “see and hear” a person giving evidence.
Part 36 rule 2A(1) provides:
“The Court may give directions for and in relation to the conduct of proceedings, including the evidence, by any audio-visual method or by telephone.”
Part 75 rule 2(8)(b) provides that directions may not be given under Part 36 rule 2A “that prevents an accused from attending any part of the proceedings.”
The Crown submitted that the evidence given on the voir dire by Mr and Mrs L as to their fears, supported by the evidence of Superintendent Kaldas, was sufficient to justify his Honour’s decision to allow them to give evidence via video link. Accordingly, his Honour’s conclusion in para [15] of the judgment revealed no appellable error.
So far as unfairness to the appellant is concerned, the Crown submitted that Mr L was asked before the jury if he had ever met the appellant face to face and he replied in the negative. There was no evidence to suggest that the witnesses had any personal dealings with the appellant. Mr L said that he had seen the appellant on more than 20 occasions in the local area, in restaurants, at community functions, in the streets as well as on television and in the newspaper. It would have been obvious to the appellant, from the voir dire and trial evidence, as well as from the inquest held in 1998, that the witnesses lived locally. The appellant knew that they both worked at a garage in the area. If the appellant had had any dealings with them significant enough to raise credibility issues, it was extremely unlikely that he would not have been able to give instructions until he saw their faces. Moreover, there was nothing to prevent the solicitors for the appellant from making inquiries. If it was thought that the non-publication order posed a barrier, an application could have been made to the Court. None was made.
The Crown submitted that s 20A is directed only to the physical standards that must be met by the equipment. The provision does not seek to usurp the discretion of the trial Judge to make appropriate orders as to who may view the screen.
As to Part 36 rule 2A, it is submitted by the Crown that his Honour was correct and the rule does not require that the accused must be able to “see” each of the witnesses.
The Crown makes the point that while it is a fundamental common law right of an accused to have the Crown case presented in his presence and hearing, a fair trial involves fairness to the Crown as well as to the accused, see McKinney v R (1991) 171 CLR 468 at 488 and R v Lowe (1997) 98 A Crim R 300 at 318 - 319. It was essential that the two witnesses be able to present their evidence to the best of their ability and not in circumstances where they would be too intimidated to do so. The trial judge recognised the risk of unfairness to the appellant and carefully considered all matters of fact and law raised in the application.
The Crown submitted that it is a reasonable assessment of the complaint of the appellant under this ground that it is not so much concerned with the direction made under the legislation, but with the fact that the appellant was not permitted to see the witnesses. The appellant claims that this was unfair.
In R v McHardie and Danielson (1983) 2 NSWLR 733 at 739 the Court of Criminal Appeal said:
“… the procedure of a normal criminal jury trial provides for the presentation of the Crown case in the presence and hearing of the accused, and includes the right of the accused to test the evidence by cross-examination, either by himself, or by his legal representative. It also includes the right to give evidence (or to make a statement), the right to call evidence, and the right, either by himself or his counsel, to address the jury. We think it correct to describe these procedural steps as “rights”, which may or may not be exercised by the accused at his option.”
It may be noted that McHardie was regarded as having waived the right when he escaped from custody during the trial.
Many examples were provided to the Court where procedural measures that depart from the traditional concept of the “right of confrontation” were adopted. Some are based upon the interests of the administration of justice, some upon the need to protect witnesses. The Court usually seeks to balance all of these considerations with the right of the accused to a fair trial. Examples include the use of pseudonyms for informers (R v Savvas (1989) 43 A Crim R 331)), see also Re Mr C (1993) 67 A Crim R 562 at 564 - 565.
The legislature has also enacted measures to protect vulnerable witnesses, for example the Evidence (Children) Act. Modern technology has provided opportunities to receive the evidence of witnesses from a place remote from the Court. The Evidence (Audio and Audio Visual Links) Act permits the departure, in certain circumstances, from the traditional concept of the presence of witnesses in Court so that the accused many confront them. The measures permitted by the Act seek to accommodate the rights of the public, witnesses, and the accused.
Before examining the proper application of the NSW legislation, it is useful to consider the approach of other courts to similar issues.
The earliest authority (and referred to by his Honour) is R v Smellie (1919) 14 Crim App Reps 128. The Court of Criminal Appeal was hearing an appeal against conviction of a father for an assault on his daughter. Before the daughter was called to give evidence the appellant was removed from the dock to sit on its stairs so as to be out of sight of the witness while she gave her evidence. Coleridge J delivered the judgment of the Court, which is succinct in the extreme. His Lordship said:
“If the judge considers that the presence of the prisoner will intimidate a witness there is nothing to prevent him for securing the ends of justice by removing the former from the presence of the latter.”

A helpful case is R v Taylor (Gary) (1994) TLR 484 Court of Appeal 17 August 1994. A witness was permitted to give evidence behind a screen so that the accused could not see her although they could view her on a video monitor. The judgment of the Court was delivered by Evans LJ. The Court accepted that it was a fundamental right of an accused to see and know the identity of his accusers. This right should only be denied in rare and exceptional circumstances. [Subsequent authorities have doubted the breadth of this proposition].
The Court held that the decision was pre-eminently one for the trial judge’s discretion. Five factors were seen as relevant to be considered:
(i)There must be real grounds for fear of the consequences if the evidence is given and the identity of the witness revealed.
(ii)The evidence must be sufficiently relevant to make it unfair to the Crown to make it proceed without it. The creditworthiness of the witness could be relevant to this.
(iii)The Court must be satisfied that the creditworthiness of the witness has been investigated and disclosed.
(iv)The Court must be satisfied that there would be no undue prejudice to the accused, although some prejudice is inevitable even if it was only the qualification placed on the right to confront a witness as accuser.
(v)The Court could balance the need for protection of the witness against unfairness to the accused.
It is this last notion which permeates many of the cases, for example, R v Watford Magistrates Court ex parte Lenman [1993] Crim LR 388. This case involved the use of a screen coupled with the distortion of the voices of the witnesses. The Court said that the balance of fairness was a statement of general principle and not confined to cases involving child witnesses.
Another example is Re DJX and Ors (1990) 91 Cr. App R 36. In this case the balancing of fairness was said to include fairness to the prosecution and its witnesses, as well as to the defendants (see Lane LCJ at 40). Both of these decisions stressed the discretionary nature of the order.
In R v Governor of Brixton Prison [2002] 1 AC 556 the House of Lords discussed these authorities, including Taylor. Lord Hutton referred to the tension between the supposed “fundamental right” of an accused and the five discretionary factors enumerated in Taylor, which might modify that right. He thought it best to emphasize that justice was best served by striking a balance of fairness between all the parties. Given the acceptance of the principles established in Taylor his Lordship doubted that departure from the ‘right’ would only occur in rare and exceptional cases.
A more recent English case is R v Camberwell Green Youth Court and Ors, Times on Line Law Reports Edition 2W 13 February 2003 p 42. This is a decision of the Queen’s Bench Divisional Court of 4 February 2003 constituted by Rose LJ and Henriques J. The case involved the receipt of evidence by live video link and the question of whether the enabling legislation breached the right to a fair trial under Article 6 of the European Convention on Human Rights. The Court held that neither a live link, nor a video recording of evidence infringed the article provided the defendant’s lawyers could see as well as hear the witness and cross-examine [48].
The Court noted a submission that the reassurance to a witness from a live link or video recording was an important safeguard to the rights of witnesses, which needed to be balanced when considering the rights of a defendant. Although as a general principle witnesses and defendants should be present and in sight of each other, there was no absolute right in English law to face to face confrontation.
Before turning to the Australian decisions, it is instructive to refer to the jurisprudence in Canada, the United States and New Zealand. The Supreme Court of Canada considered the issue in two cases in 1993: R v Levogiannis [1993] 4 SCR 475 and R v L (DO) [1993] 4 SCR 419. The decisions were delivered by L’Heureux-Dubé J. Provisions in the Criminal Code permitted the interposition of a screen and the receipt of remote evidence in certain circumstances. The question of whether this was contrary to the Charter of Rights and Freedoms was answered in the negative. The “right” of confrontation was held not to be absolute but subject to qualification in the interests of justice. In the necessary balancing exercise the defendant’s right to face his accusers in court could be outweighed by competing considerations. Levogiannis was another screen case, however it should be noted that unlike here, the screen did not prevent the accused seeing the witness but only the witness seeing the accused.
The United States’ position is premised on the Sixth Amendment to the Constitution which provides an accused with the right to confront the witnesses against him. However, this right can be forfeited by disruptive behaviour, cf R v McHardie and Danielson at 739.
In Maryland v Craig 497 US 836 (1990) the United States Supreme Court held that evidence received by way of one-way closed circuit television was not contrary to the Sixth Amendment to the Constitution. There was no absolute right to a face-to-face trial with witnesses. The majority judgments identified the key issue as being the ability of the accused to ensure the reliability of such testimony by rigorous adversarial testing.
In New Zealand R v Accused (T4/88) [1989] 1 NZLR 660 involved the imposition of a screen between a child witness and the accused. Cooke P opined that the interests of justice demanded that Courts (in the absence of legislation) modify procedures where necessary to protect child witnesses. The procedure adopted at the trial did not prejudice the accused who had a fair trial. McMullin J pointed out that, unlike the Sixth Amendment, the New Zealand Crimes Act gave an accused (as did the common law before it) the right to be present at his trial, but not necessarily a right to confrontation [670]. “Present” in the statute was not to be construed in a confrontational sense. So long as the accused had the right to remain in court throughout his trial in a position where he could hear the proceedings, understand them and communicate with his counsel, there was no breach of the provision.
We turn now to the Australian authorities. McHardie has already been mentioned as setting forth the basic position in a criminal trial. R v West (1990) 51 A Crim R 317 concerned a rape trial in Queensland where the complainant was screened from the appellant during her evidence. The Queensland Court of Criminal Appeal concluded that the procedure did not result in the accused being unfairly prejudiced. While a balancing was needed, it did not require the total elimination of prejudice to an accused (321). Any potential prejudice was amply covered by the directions given to the jury.
In R v Jarvie (1995) 1 VR 84 the appeal concerned the anonymity of undercover police operatives. The Court held that a balancing exercise must be undertaken between aspects of the public interest, including the entitlement of an accused to a fair trial.
Brooking J observed however that a fair trial did not mean a perfect trial, “free from possible detriment or disadvantage of any kind or degree to the accused”, see also Jago v District Court (1989) 168 CLR 23, R v Glennon (1992) 173 CLR 592 and Dietrich v R (1992) 177 CLR 292.
The last case to mention is R v Sparkes (1996) 88 A Crim R 194 at 217 – 218. This was another case where a screen was interposed between the complainant and the accused so that the witness could not see the accused and vice-versa (at 216). In the Supreme Court of Tasmania Underwood J considered that it was appropriate and permissible that he make the order. His Honour saw no prejudice to the accused in the arrangement proposed whereas, if the screening direction was not made, it was likely that justice would not be done to the complainant, who would not be able or would be unwilling to give her evidence properly.
For completeness we mention that the Crown Prosecutor also referred the court to the decision of the International Criminal Tribunal for the Former Yugoslavia, Prosecutor v Tadic, Unreported, 10 August 1995. In that proceeding the facial image of witnesses was withheld from the defendant. The Tribunal discussed many of the authorities referred to above and set forth the principles which it saw as applicable (see paras 62 – 66).
We turn to the subject legislation. It provides both the machinery by which the Court may receive evidence by either audio or audiovisual links and sets out the circumstances in which it is appropriate for the court to receive such evidence. First enacted in 1998 the statute has evolved significantly in accordance with amendments made by Act No 16 of 2000, relevant to these proceedings, and Act No 46 of 2001, which were not applicable to the subject trial.
It is important to note that the Act does not seek to be the exclusive provision for the means of taking evidence in proceedings. We have already set forth ss 5(1A) and (2). They make it plain, for example, that other laws continue to apply and are not limited by the Act. One example is the provisions in Part 4 of the Evidence (Children) Act. Another, which has relevance to this appeal, is Part 36 rule 2A of the Supreme Court Rules.
The key provision for this appeal is s 5B. Again, it may be noted that the introductory words of ss (1) of s 5B stress that the section is “subject to any applicable rules of court …”. It should also be observed that the court can give a direction to take evidence by audio or audiovisual link either on its own motion or on the application of a party.
Section 5B(2) contains four pre-conditions to the making of any such direction. Subparagraphs (a) and (b) are not here relevant. Subparagraph (c) is crucial and we shall return to discuss it. Subparagraph (d) is important and the appellant challenges, albeit rather faintly, his Honour’s ruling in relation thereto. It appears to the Court that there was ample evidence before Dunford J on the voir dire to justify his conclusion that the fears of Mr and Mrs L were genuine.
In our view, his Honour was entitled to conclude, given that the fears of the Ls’ were genuinely held, that they would probably not give evidence if required to do so face to face with the appellant in the courtroom. Although sub-para (d) is a pre-condition to the exercise of the power, it involves a discretionary assessment. His Honour saw and heard the evidence on the voir dire and was in a much superior position to this Court to make the necessary assessment. The nature of the subject matter, whether the Ls’ genuinely held fears for their safety and that of their family would prevent or impede them from giving adequate evidence in court, is pre-eminently one for a trial judge and this court would not interfere unless the principles enunciated in House v The King (1936) 55 CLR 499 at 504 – 505 were breached. No such breach is apparent.
Accordingly, we may proceed to subpara (c), which is critical. There are some tensions between this clause and s 5B(3) but we think that they dissolve if the Court entertaining such a direction, on its own motion or on application, first considers whether the preconditions under s 5B(2) are satisfied. It is only if they are satisfied that the court visits s 5B(3).
Making a direction that the evidence of an accusing witness be received by audiovisual link external to the courtroom must, by its very nature, involve unfairness to an accused because it deprives him or her of a face-to-face confrontation with the witness. The provision cannot mean any unfairness, however small. The Court must consider the degree and effect of the unfairness. In a criminal trial, the best measure is whether the making of a direction will cause the trial to be an unfair one to the accused. An accused person has the fundamental right to a fair trial. A direction should not be made if it would mean that an accused could not have a fair trial.
The appellant argues, with some force, that the unfairness of the direction was compounded because the appellant was not permitted to see the faces of the two witnesses on the monitor. The accused only heard the evidence while everyone else in the Court, including the jury, saw the video screen. Of course, the appellant’s legal representatives could view the screen.
The core of the appellant’s complaint is his inability to give instructions on whether he recognised either Mr L or Mrs L and whether that recognition would lead to cross-examination concerning their reliability or credibility.
The question of whether Mr L had met the appellant presents a curious situation. On the voir dire when asked by counsel for the appellant if he had ever met the appellant face to face, he said that he had. This answer was not further explored.
However, before the jury, he was asked the same question and replied in the negative. In fact, there was no evidence to suggest that either of the witnesses had any acquaintance with the appellant or any personal dealings with him. Mr L said that he had seen the appellant on more than 20 occasions in the local area, in restaurants, at community functions, in the streets and on television and in the newspaper.
What is plain is that from the inquest in 1998 onwards, it would have been apparent to the appellant that the two witnesses lived in the local area. Besides the inquest, they had given evidence on the voir dire in the aborted trial before Wood CJ at CL when a similar order was made to that currently under review. They had also given evidence at the committal. It seems to us most unlikely that the appellant would, in all of the circumstances, have been unable to give instructions concerning the credibility of the witnesses until he saw their faces. One thing is clear, the appellant knew that both Mr L and his wife worked at a local garage.
The appellant’s solicitors could, and perhaps did, make inquiries relating to the witnesses. While the suppression order may have been thought to deter any such inquiries, even if it did, an application could have been made to the Court to appropriately relax it. None was made.
For his Honour what was important was whether the witnesses recognised the appellant and not the reverse. Certainly Dunford J was entitled to infer that the appellant, with his local prominence, would have met many many people in the area. The appellant would obviously not remember them all and Mr L was likely to be one such person. Importantly no credibility issue relating to either witness was raised by the appellant’s trial counsel. One would have thought that complaint would have been made if the objection had any cogency.
As the Crown points out, the appellant’s submission seems to be premised on nothing more than mere possibilities. That is, it is possible that the appellant might by chance have recognised the Ls if he had seen them on the video screen. If this possibility had occurred, then it might be possible that he knew them adversely. In that event, it may then be possible that some material might be available to confront the witnesses in order to attack their credibility. Bearing in mind the absence of complaint by the appellant’s trial counsel, all this seems inherently improbable. The more likely situation is that the appellant did not know either witness except to the extent that, like vast numbers of the local citizenry, he may have come across them as constituents. The appellant would most likely have no real chance of recalling anything relevant about either of them.
The appellant submitted that the trial judge did not have regard to the forensic disadvantage suffered by the appellant because he was not allowed to see the witnesses. His Honour’s reasons however make it clear that he did consider whether the proposed procedure would prevent the appellant from properly contesting the evidence. Dunford J said that he gave the issue “serious consideration”.
In approaching the issue of unfairness to an accused, it is reasonable to start with the proposition that confrontation is a fundamental right of an accused, who is entitled to see and know the identity of his accusers. Yet, as observed by the House of Lords in R v Governor of Brixton Prison, there is clearly tension between this right and the discretionary decision that may be made to erode that right.
The right is by no means an absolute one and it has been accepted for a considerable time that misconduct of an accused can lead to a waiver of the right. Even in the U.S., where the right of confrontation is entrenched in the Sixth Amendment, the Supreme Court has held that the right to a face to face trial with witnesses is not absolute. In England and Wales the right to face to face confrontation is also not an absolute one. The same appears to be the position in Canada and New Zealand.
Not infrequently jurisdictions have enacted legislation which has the effect of eroding the right to confrontation. Statutes concerning the receipt of the evidence of children in sexual cases are an example. The protection of informers is another. Advances in technology have also spawned legislation permitting the receipt of evidence by live audio and video link. The subject Act is one such example. The Act seeks to temper the effect that the provision of remote evidence may have on a trial and on its participants, by outlining prerequisite considerations and protections to any such direction. The unfairness precondition in s 5B(2)(c) is one such protective mechanism, particularly important in a criminal trial.
What the local and overseas authorities make clear is that the need to protect witnesses must be balanced against the unfairness to the accused. One of the important factors often seen as critical to such a decision is the question as to what is demanded by the interests of justice. This notion seems to be embraced by s 5B(3) to which we will refer presently.
Many of the cases discussed earlier involve situations where the accused can still ‘see’ his accuser, whether in Court or on a video screen. The appellant stresses that here, although the appellant’s legal representatives could see the witnesses on the screen, the appellant was not permitted to do so. However, it may be pointed out that a number of the authorities discussed above do involve the accused not ‘seeing’ his accuser, see eg R v Smellie, R v Accused, R v Camberwell Green Youth Court, R v Jarvie and R v Sparkes.
In our opinion, there was no error by his Honour in the exercise of the discretion involved in s 5B(2). His Honour considered the unfairness to the appellant and balanced it with the position of the witnesses. We are unable to conclude that his discretion miscarried in this part of the exercise.
This means that we can now address the requirements of s 5B(3). Where a party opposes a direction being made, the court “must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so”. This places an onus on the prosecution, which made the subject application, to so satisfy the Court. The phrase, “in the interests of the administration of justice” is a broad one and not susceptible to precise definition. The particular context of the use of the phrase will provide assistance as to its content. In the subject context it must include the impact on the parties and the trial of making or not making the direction. This involves assessing the impact on the fairness of the trial for the accused. It also involves the issue of the fairness to the witnesses and to the Crown. There may be many things which can be said to be relevant to the interests in the administration of justice. Some will be interests of the accused, some of a witness, some of the Crown and some of the general community or the public interest in a fair and efficient system of criminal justice. However, what appears to be required is a balancing of these interests.

Dunford J said that, absent a direction of the nature sought by the Crown, it was probable that the Ls’ would not give evidence if required to do so face to face with the appellant. He added that even if they did, because of their genuine fears of the appellant, they would not do justice to themselves as witnesses. His Honour concluded that it was therefore in the interests in the administration of justice to make the order.
In our opinion, it was legitimate for his Honour to conclude that he was satisfied that the making of the direction was in the interests of the administration of justice. His Honour carried out a discretionary balancing of the relevant considerations and his decision involves no appellable error. The unfairness to the appellant was clearly balanced with the fears of the witnesses and the probability that they would not give evidence if the direction was not made.
Two issues still need to be addressed under this ground. First, the role of s 20A and second, the applicability of the Supreme Court Rules, in particular whether Part 75 rule 2(8) excludes the making of a direction under Part 36 rule 2A.
Dunford J held that s 20A was a general provision and referred to persons in the courtroom in general without specifying any particular persons. It did not in terms require that each party must be able to see the witness. His Honour said that the provision is directed rather to suitable equipment being provided.
In our view, this is the correct approach to the provision for a number of reasons.
First, s 20A appears in the “Miscellaneous” provisions of the Act. Many of the provisions in this Part are mechanical and procedural, especially ss 20A to 20F.
Secondly, by contrast it is Part 1A (and s 5B) which sets out the preconditions which the court must consider when exercising its discretion in relation to the making of a direction under the Act.
Thirdly, there was a need for the legislation to provide for minimum technical requirements for an audiovisual link and this was met by s 20A.
In our opinion, s 20A does not usurp or limit the discretion of a trial judge to make appropriate orders as to who may view the screen. His Honour was correct in his approach to s 20A that it was a general provision which did not require the appellant to see the witnesses.
Turning to the Supreme Court Rules, the Act makes it plain that their application is not precluded, see ss 5(1A), (2) and 5B. Part 36 rule 2A(1) provides that the Supreme Court may give directions in relation to the giving of evidence by an audiovisual method or by telephone. The question raised by the appellant is whether Part 75 rule 2(8)(b) prevents a direction being given which restricts an accused “seeing” the remote witness on the screen. This is said to be so because such a direction “prevents an accused from attending” a part of the trial proceeding. The question is answered by determining what is meant by “attending” in the rule. In our opinion “attending” ought be given its plain and ordinary meaning.
Accordingly, it means that a direction should not be given which prevents an accused from being present at the proceedings. “Attending” does not impart any requirement that an accused not only be present in court but also able to see and hear everything. In our opinion, the reasoning of McMullin J in R v Accused is applicable.
It cannot be concluded that the appellant was prevented from attending that part of the trial in which the evidence of Mr and Mrs L was taken.
Accordingly, we are of the opinion that Ground 2 should be rejected.
Ground 3 - Admission of identification evidence of Mrs L
Under this ground the appellant makes a two-pronged attack on the admission of the evidence of Mrs L. First, it is submitted that his Honour should have rejected her evidence that she recognised the appellant on the evening of 3 September 1994 standing near a white sedan in Judith Street, Cabramatta, close to the house of Mr Newman. The basis for the application was s 137 of the Evidence Act 1995. It was argued that its probative value was outweighed by its unfair prejudicial value. The second line of attack follows his Honour’s admission of the evidence. At the close of Mrs L’s evidence, junior counsel for the appellant made an application that her evidence be withdrawn. His Honour refused the application.
The importance of the evidence, if accepted by the jury, is that it supported the Crown case that the appellant was carrying out surveillance on the Newman house only two nights before the murder. Mr L also gave evidence of his recognition of the appellant.
Mrs L said in evidence that she was sitting in the back seat of the car being driven by her husband. She was holding her sleeping baby son. As the car was turning into Judith Street she saw a man standing beside a white four-door sedan car. She recognised him as someone familiar. Then her husband said that it was Councillor Phuong Ngo. She then looked again and recognised the man as the appellant. He was about a metre away and moving as if to cross the road. She had previously known the appellant from seeing him in the streets of Cabramatta and his photograph in the local papers.
Mrs L’s cross-examination confirmed that her first observation was of someone familiar. Her second observation followed her husband’s remark. She said that when she looked at the man again, it looked like Ngo.
Mrs L conceded that she could not be certain because she only got a glimpse of him. She accepted that she was influenced by her husband’s identification. Finally, she agreed that she could have easily been mistaken.
In ruling against the application to reject the evidence under s 137, his Honour referred to the distinction between identification evidence and recognition evidence. Mrs L’s evidence was of the latter kind since it was the evidence of the recognition of a person previously known to her.
His Honour found that the evidence had its limitations but they were as obvious to a layperson as to a lawyer. Clear warning would be given in the Summing-Up and his Honour did not see that the jury would have any difficulty. Accordingly, there was little risk of unfair prejudice to the accused.
The evidence was not without some probative value, said his Honour, because if accepted, it tended to confirm the recognition of the appellant by Mr L as the man outside the car who they both saw. The fact that the recognition followed a suggestion from another person should not preclude its admission.
Dunford J concluded that while the probative value of the evidence was limited, it was not negligible or insignificant. It was evidence of a circumstantial nature which, to a limited degree, confirmed the recognition allegedly made by her husband. Its probative value was not outweighed by the danger of unfair prejudice.
On 4 June 2001 his Honour refused to accede to the application made on behalf of the appellant to withdraw Mrs L’s evidence. His Honour said that the assessment of her evidence was a matter for the jury.
Mr Game submitted that his Honour’s rulings were erroneous. The recognition evidence of Mrs L was extremely weak and any probative value that it had was far outweighed by the prejudice to the appellant. It should have been rejected under s 137. Alternatively, any probative value that it had before cross-examination was gone by the end of her evidence. By contrast the prejudice to the appellant was great. The evidence was even more prejudicial given that it was left as evidence corroborating that of Mr L. Accordingly, his Honour was wrong not to withdraw Mrs L’s evidence.
Directions regarding Mrs L’s evidence were given in the Summing-Up. Her evidence was summarised in detail. Very extensive warnings were given by his Honour on the special caution needed in accepting identification evidence in the context of the evidence given by Mr and Mrs L, see SU 16 – 20. His Honour added that:
“In relation to both witnesses, you should bear in mind that it was night, you should have regard to the state of the street lighting, that they were in a moving car and were not expecting to be making an observation of a relevant or important matter which only became significant, if at all, two days later, and it was some time after that that they were required to make detailed statements to police. Because they were moving, their period of observation of the person they saw was very limited.
In the case of Mrs L …, there is the added consideration that she only made her identification after her husband made the remark “There’s Phuong Ngo”, thereby suggesting the identification to her.
These are the matters which you are bound to consider when deciding whether you will accept the identification evidence in this case is reliable.”`-
The Crown concedes that the evidence of Mrs L had limited probative value, as found by his Honour. Nonetheless, it is submitted that the limitations in the evidence were obvious to any layperson, as his Honour observed. The warnings given to the jury in the detailed directions were comprehensive and included specific mention of Mrs L’s recognition being made only after her husband’s remark suggesting identification. In the circumstances, the Crown suggests that there was little danger of unfair prejudice to the appellant.
The remarks of McHugh J in Festa v The Queen (2001) 208 CLR 593 at [51] are apposite. His Honour said:
“But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.”
We do not see, given that the shortcomings of Mrs L’s evidence were plain for all to see, coupled with his Honour’s directions, that the jury were likely to give her evidence more weight than it deserved. Nor could it be concluded that the nature and content of Mrs L’s evidence was likely to inflame the jury or divert it from its task. See also R v Nguyen [2002] NSWCCA 342 at [18] and R v Coe [2002] NSWCCA 385 at [33].
His Honour was entitled to admit the evidence of Mrs L notwithstanding that it was weak. Further, his Honour was entitled to conclude that its probative value, although limited, was not outweighed by the danger of unfair prejudice to the appellant. Assessing the evidence of Mrs L was not a difficult matter and its limitations were obvious and drawn to attention in the Summing-Up and doubtless in the closing address by counsel for the appellant. The jury would be able to assess to what extent, if at all, Mrs L’s weak evidence of recognition provided any support for Mr L’s evidence.
In our view this Ground of appeal should be rejected.
Ground 4 - Inadequate directions on identification evidence of Mr and Mrs L
This ground follows on from Ground 3. Mrs L’s recognition of the appellant was made only after it had been suggested by her husband. It is submitted on behalf of the appellant that her evidence was equivocal and left to the jury as supporting that of Mr L.
His Honour directed the jury that the fact that more than one witness had identified an accused may be taken into account in determining the weight to be placed on their evidence. His Honour added an important rider that the jury “must clearly understand that such a fact does not mean that there is necessarily less chance that a mistake has been made. Two or more honest witnesses can be just as mistaken as one”.
The appellant accepts the general proposition that one identification may be strengthened by another. However, Mr Game submits that it has little application in circumstances where the witness whose evidence is strengthened is the witness who suggested the identification to the other person. This danger, submits counsel for the appellant, should have been specifically drawn to the jury’s attention.
With regard to this submission, it should be recorded that his Honour was not asked to direct the jury in such terms. No complaint was made.
Notwithstanding, it is plain from a reading of the Summing-Up that his Honour comprehensively warned the jury of the dangers of identification evidence, both in general terms and concerning the particular evidence of Mr and Mrs L in the trial.
His Honour specifically directed the jury that there was an added consideration regarding the evidence of Mrs L. This was that she only made her identification of the appellant after her husband made the remark “There’s Councillor Phuong Ngo”, thereby suggesting identification to her.
As mentioned earlier, his Honour reviewed the evidence in great detail, including that of Mr L and Mrs L. The summary included all evidence pointing both towards and against reliability. In his summary of the evidence his Honour specifically reminded the jury that Mrs L’s recognition of the appellant came only after the statement of her husband, and also of her concession in cross-examination that she could not be certain.
In our view, his Honour’s directions were adequate, especially since counsel for the appellant did not raise with his Honour any concern that he had for the directions.
While we are of the opinion that leave to rely upon this ground ought be refused, it is plain that the ground has, in any event, no substance and should be rejected.
Ground 8 – inadequate directions on evidence of T and N
The Ground is:
“The judge’s directions to the jury as to the caution with which they should approach the evidence of the witnesses T and N were inadequate in the circumstances.”
The submissions of the appellant take as their starting point the proposition that both T and N were accomplices.
The Evidence Act does not define who is to be regarded as an accomplice. Section 165(1) of the Act, dealing with the subject matter of warnings about unreliable evidence, speaks of, inter alia, “a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to” the proceeding in which that witness is called to give evidence: s 165(1)(d).
In the case of such a witness, the obligations of the trial Judge are set out, as follows, in s 165(2), (3) and (4):
“(2)        If there is a jury and a party so requests, the judge is to:
(a) warn the jury that the evidence may be unreliable; and
(b) inform the jury of matters that may cause it to be unreliable; and
(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3)          The judge need not comply with subsection (2) if there are good reasons for not doing so.
(4)          It is not necessary that a particular form of words be used in giving the warning or information.”
Over-arching those specific statutory obligations is the general power, and by logical extension the general obligation, that are preserved by s 165(5) which provides that the other provisions of s 165 do not affect “any other power of the judge to give a warning to, or to inform, the jury”. This entails what Howie J described in Reg v Stewart (2001) 52 NSWLR 301 at 327[120] as “a considerable overlap between the common law and the provisions of the Act” in connection with the giving of warnings to juries in criminal trials.
At the appellant’s trial a s 165 request was made, and so it became the duty of the learned trial Judge to comply with the requirements of s 165(2), bearing in mind the flexibility made available in that connection by s 165(4). [It is unnecessary to tarry over s 165(3) since it is plain that the learned trial Judge accepted, and correctly so as we respectfully think, that in a trial such as that of the appellant, a s 165 warning, if requested, could not fairly be refused.]
The Summing-up, inclusive of applications for and rulings upon further directions, occupied five sitting days. The transcript of the Summing-up, inclusive of those applications and rulings, occupies 443 typescript pages.
At page 10 of the Summing-up the trial Judge told the jury that there were three particular types of evidence to which his Honour would be referring:
“The first is what is called hearsay evidence. The second is the evidence of a person criminally concerned in the events giving rise to the present proceedings, commonly referred to as the evidence of accomplices, or accomplice evidence, and the third is what is commonly referred to as identification evidence.”
Having given directions concerning hearsay evidence, his Honour gave the following directions concerning what his Honour had described, in short-hand, as accomplice evidence:
“The second type of evidence that may be unreliable is the evidence of persons engaged in a criminal activity relating to the proceedings, or accomplices. In this regard, I am referring to the evidence of T and N. Also Robert Morris, who was, it is claimed, involved in dealings concerning the purchase of the Ruger and the Magnum, and the approach to H. Also CC, Tong Ngoc, and M, but particularly N and T. They have each received indemnities and/or undertakings in respect of their participation in the offence, and that is a further ground for caution on your part in assessing their evidence.
Like the other warning I gave you about hearsay evidence, this is a direction which is given in every case in which the Crown relies on this type of evidence: that is, the evidence of a person criminally concerned in the events giving rise to the proceedings. It is not given in this case because I have not formed any view concerning the evidence which witnesses have given. Such a direction must be given in every case in which the Crown relies on the evidence of a person who himself participated in some way in the criminal activities associated with the events with which the accused has been charged.
Once again, the need to give up [sic] a direction arises because the courts have, over the years, accumulated a deal of experience concerning the reliability of evidence given by such persons. That experience would not readily be known to general members of the public such as yourselves. That experience has shown that the evidence given by such persons is often unreliable.
I do not intend to suggest that their evidence is always unreliable. My purpose in giving these directions is only to warn you that the evidence of such a person may be unreliable and for that reason alone you must approach that evidence with considerable caution.
There are, no doubt, many reasons why the evidence of such a person may be unreliable. It is only natural, you may think, that an accomplice or a person associated in some way with criminal activity may want to shift blame from himself onto others, and to justify his own conduct.
In the process, such a person may construct untruthful stories which tend to play down his own part in the crime and to play up the part of others, even to blaming quite innocent people. Experience has shown that, once having given that version to the police, such a person may feel that he is locked in to that version and that he is bound to relate the same version when giving his evidence.
In the present case, as I say, each of the persons concerned has been given undertakings and/or indemnities to the effect that they will not be prosecuted for their involvement in the murder of John Newman or any previous attempt on his life or any agreement to murder him.
Moreover in each case the agreement or undertaking states that it is conditional on them cooperating with the authorities, giving evidence against these accused, and that such evidence be the truth, the whole truth, and nothing but the truth.
It follows that once they have given a version to police or to the Crime Commission they may feel that if they change their evidence or did not come up to what they had previously said it may be claimed that their evidence was not the whole truth and that they may be in danger of losing their indemnity.
This may, therefore, be a further reason for them to feel locked in to their original version to the authorities, even if it contained inaccuracies, or even if it were substantially untrue.
In assessing their evidence, therefore, you have to take heed of the warnings I have just given you that their evidence may be unreliable. You also need to look to see whether their evidence is supported or confirmed by any other evidence which indicates that their evidence is true, and what you must look for is evidence from an independent source which tends to show not only that the crime was committed but that these three accused were implicated or involved in it.”

When his Honour came to “some general submissions” which had been made on behalf of the Crown and various accused, he said:
“The Crown case against Phuong Ngo, as put by the Crown Prosecutor, was that T and N were not acting on their own behalf. They had no motive to kill John Newman. Most of their evidence is corroborated. So, you would ask yourselves why would they do it, if not for Phuong Ngo, as they say?
…
It is not necessary as against Phuong Ngo to establish who was the shooter, Dinh, T, or someone else, provided that you are satisfied beyond reasonable doubt that such person was acting at the urging of, or by arrangement with, Phuong Ngo.
…
The Crown submits that Dao was engaged in a joint criminal enterprise as the driver. It does not matter, in the case of Dao, who the shooter was. Dao was still there to drive the shooter, whoever it was. That is the Crown case.
…
So, to summarise, the Crown submits that it does not matter if you feel that T may have had a greater role in 5 September than he admits. The Crown asked you to look at what he called the big picture and submits that at the end of the day you will be satisfied beyond reasonable doubt that the killing was organised or instigated by Phuong Ngo, that David Dinh was the shooter, and that Quang Dao was, with knowledge, the driver who drove the shooter, whoever that shooter was, to John Newman’s house. Each of the accused, through their counsel, submit that you would not be so fast satisfied of these matters beyond reasonable doubt”.
A submission was in due course made by Mr Cusack of counsel for the accused Dao:
“The other point is in relation to the accused Dinh. Your Honour has quite rightly said, if Dinh is acquitted, Dao is not entitled to an acquittal himself. If Dinh is acquitted, I would ask your Honour to tell the jury, if they find Dinh not guilty, it is a strong factor in relation to the credibility of T, and, using that, my client is entitled to rely on that on that basis as regards to the credibility of Mr T.
HIS HONOUR: I will think about that”.
His Honour further stated:
“HIS HONOUR: If Dinh is acquitted, it goes to the credibility of T.
CROWN PROSECUTOR: That involves an argumentative fallacy. The jury may nearly be in the position, in relation to Dinh, of not being satisfied, to the requisite degree, that he was the shooter because it is not required, in relation to Mr Dao and Mr Ngo, that Mr Dinh be the shooter.
HIS HONOUR: No. It goes to his credibility. It does not disprove the case against the other two. It is a bit like the sexual assault cases where, if they do not believe the complainant on the one count, and they do believe her on the other count, there is no supporting evidence. That fact that they do disbelieve her on one count means that they should have a reasonable doubt on the other one.
CROWN PROSECUTOR: That is not necessarily the case. It may be the case, but it is not necessarily the case”.
His Honour then gave a “dangerous to convict” direction in the following terms:
“I gave you a detailed warning about how the evidence of an accomplice witness, particularly one with an indemnity, may be unreliable. In addition to what I said, would you also bear in mind that if you do not find any corroboration or confirmation or support of the nature that I described to you, it would be dangerous to convict on such uncorroborated evidence of an accomplice without subjecting it to close scrutiny and unless you were satisfied of its truth and accuracy”.
In relation to what arose during the discussion just cited, his Honour directed the jury as follows:
“I certainly conveyed the impression, as I intended to, that, if Dinh was acquitted, that did not necessary mean that Dao had to be acquitted. Mr Cusack’s submission was that, if Dinh is acquitted, it would mean that you did not accept T’s evidence that Dinh was the shooter. If you did not accept T’s evidence that Dinh was the shooter, well then, that would affect the credibility of T, and you would take that into account in determining whether or not you accepted his evidence in relation to Dao”.
In relation to the last extracted matter, it is accepted by the appellant that his Honour’s observation was “literally correct”. However, the appellant points to what he says is the “apparent restriction” of the applicability of the approach to T’s evidence in relation to the accused Dao being unfairly prejudicial to the position of the appellant. It is argued that for the jury to appreciate the available use of the rejection by it of T’s evidence in relation to Dinh, it was necessary for them to be told that they could also take into account their rejection of T’s evidence when considering what he had to say against the appellant. The jury should have been given “further careful directions” about the consequences of an acquittal of both Dao and Dinh. First, it would have brought into play a doubt about the credibility of T; secondly, if would have affected any corroborative use of T’s evidence in the assessment of other witnesses; thirdly, the acquittal of Dao “may” have also involved the entertaining by the jury of a doubt as to the credibility of N, because N gave evidence against Dao in relation to preliminary steps and earlier attempts with respect to the deceased.
Further, the jury should have received “substantially more assistance” than it is submitted they did, to the effect that in the event that the jury entertained doubts about Dao and Dinh, they would have to, of necessity, look elsewhere in the evidence. It was argued that depending upon what view was taken of these witnesses the jury may have had to place reliance entirely on other evidence, namely, Mr and Mrs L, ballistic evidence and lies told.
What is described as a further “aspect” of the matter is those directions given to the jury in relation to the identity of the shooter set out above in the lengthy extract from the Summing-up first cited. Again, the appellant acknowledges that what his Honour said in relation to the suggestion that T may have been the shooter and what followed from that suggestion was “literally correct”. What is argued, however, is that it is far too “dogmatic” in the context of “likely” jury deliberations to say that “it does not matter who was the shooter”. The appellant argues that it was not as the directions suggested simply a case of substituting T as the shooter for Dinh as the shooter, the more so when the Crown case had been opened on the basis that Dinh was the shooter. The suggestion, as became clear in the course of oral submissions before us, that Dinh may have been the shooter, was advanced at trial by counsel for Dinh.
The appellant acknowledges that the Crown did not have to prove beyond reasonable doubt in the case against him that Dinh was the shooter. The appellant however submits that any suggestion that Dinh was not the shooter had the potential, in the absence of proper direction and assistance from the trial judge, to unfairly and adversely affect the jury’s assessment of the case against the appellant.
In the course of oral submissions it was acknowledged that no express further direction was sought especially after his Honour, in his charge to the jury, stated that he “certainly conveyed the impression” as set out above. The nub of the complaint is, as we perceive it, that the notion of T being the shooter should not have been introduced at all. It was. It was introduced by counsel for Dinh. A forensic explanation for such a step could be described as readily apparent. The introduction of the notion of T being the shooter was one that effectively, so Mr Game argued, enabled the avoidance, as it were, of the problem that the jury “would have had” if they were not satisfied beyond reasonable doubt on T’s evidence that Dinh was the shooter. Even in that context however Mr Game conceded that the jury could have still convicted. The statement by his Honour that “it does not matter who was the shooter” was seized upon and advanced to the contrary, namely, that it “does” matter and in “a very big way”. What, it is argued, that statement by his Honour involved is a process of reasoning to the conviction of Ngo measured against the credible account of which the jury was satisfied in the case of T. Whilst it was correct to say that the appellant could be convicted and Dinh and Dao acquitted, the appellant could not have been convicted based upon a line of reasoning founded in the acceptance of the proposition that T was the shooter or that “it does not matter” if T was the shooter. The suggestion advanced from the Dinh camp that T may have been the shooter, it is argued, does not convert a case against Ngo based on the proposition that T was the shooter. This last proposition is amplified in Ground 15B to which we will come shortly.
As the Crown contends, the appellant’s submissions appear erroneously to assume that an acquittal of Dinh meant that the jury “rejected” T’s evidence. The Crown points to the dubious validity of the proposition advanced on behalf of the co-accused Dao (relied upon by the appellant) that if the jury had a doubt about T’s evidence that Dinh was the shooter, that would have a bearing on the credibility of T’s evidence in relation to Dao. It is clear the cases against the two co-accused heavily depended upon the evidence of T. An acquittal of Dinh, however, may merely have meant, and we agree, that whilst the jury accepted the evidence of T, they were not prepared to return a verdict of guilty because they were not satisfied by the degree of or the existence of corroboration of his evidence in relation to Dinh. This has more force given the “dangerous to convict” direction given where corroboration was absent.
The situation was different in respect of the case against the appellant. T’s evidence of course was an important component; he was a principal witness, but there was an abundance of other evidence as well. This would have been evident to senior counsel for the appellant at trial: the prosecution case against Ngo was more complex than the case against Dao and Dinh; no further submission was made or request for a specific direction. This can now be viewed as perfectly comprehensible when senior counsel had secured the trial Judge’s agreement to give the “dangerous to convict” warning. As was submitted by the Crown, nothing more advantageous to the appellant could be achieved.
We are of the view, noting the acknowledgment of the “literal correctness” of the directions to which reference has been made, that the discrete Ground 15 has not been made out. This is so when one views first, the introduction of the notion by Dinh’s counsel that T may have been the shooter, when one acknowledges that that scenario formed no part of the Crown case at all, and by viewing over all the Summing-up especially the portions extracted above. We are not persuaded in relation to Ground 15 discretely, that, in the context to which reference has just been made, any unfairness arose from an otherwise correct statement by his Honour as to it not mattering who the shooter was, in the context of the “dangerous to convict” direction, and taking into account the considered forensic stance adopted by senior counsel for the appellant.
When one considers the submissions for the appellant and the starting point of acknowledgment of correctness, it can be seen, with respect, that they involve an attempt to transpose what, in argument, might be a legitimate course of speculation as to a possible process of reasoning, to an assertion that that speculative course became an inevitable reality for the jury in the discharge of its function. A close and sensible examination of his Honour’s directions overall might give rise to the submission in the form in which it was presented, but cannot give rise to the conclusion that in any real sense the task of the jury was affected at trial by the same considerations to the prejudice of the appellant.
Ground 15B - the trial Judge erred in leaving as a possible basis for conviction in the case against the appellant, that the shooter was T
As stated above, this Ground of appeal is an elaboration of Ground 15. The Ground focuses on the proposition ultimately left to the jury to the effect that T was, or as we see it, “may” have been the shooter.
In aid of the development of the argument in support of the supplementary ground, the following extracted materials are highlighted from the Crown’s opening address and closing address.
In his opening the prosecutor said:
“In this case the Crown alleges that the actual shooter of the late John Newman was David Dinh. It is alleged that the mastermind of the killing of John Newman was the accused Phuong Ngo, and it is alleged that the driver of the car which took David Dinh to the scene of the shooting and then drove him away afterwards, was the accused Quang Dao”.
He continued:
“In this case … all three of the accused were engaged in a joint enterprise to kill John Newman on the day that he died, which was 5 September 1994.
The Crown case is that Phuong Ngo was not just the mastermind, but the instigator, the originator of the plan to kill John Newman and there were various people who came in and out of this joint enterprise at different times”.
Later he said:
“[T]he Crown alleges that there were some people who were involved that even Phuong Ngo didn’t know about, because they were lower down the chain and I will explain to you about that later. Who they are and what they did.
But these three accused were intimately involved on the night of the killing, all three of them were intimately involved on the night of the killing
Now, the other thing is that sometimes the Crown can’t prove what the exact role was of a participant in a criminal enterprise. If the Crown can prove that that person was involved, but the Crown can’t say exactly what that person did at a particular time, that doesn’t matter. If the Crown (sic) are satisfied that the person was involved in the joint criminal enterprise, that is sufficient.
And in some respects you will find that some of the people who were involved in this enterprise, we can’t say exactly how much they did at every conceivable point of time. And you might think that that’s perfectly understandable. This joint criminal enterprise went on for six months, so we can’t say exactly what everyone was doing for every bit of those six months. That doesn’t matter”.
Later again he said:
“The Crown alleges that this was a political assassination carried out by Mr David Dinh at the instigation of request of Phuong Ngo and with Quang Dao’s assistance and also with the assistance of other people whom you will hear about in the evidence”.
In closing his case against the appellant, the prosecutor said:
“Now, ladies and gentlemen, so far as the case against Phuong Ngo is concerned, it is not necessary for you to decide exactly who the shooter was. We say it was David Dinh. But so far as the case against Phuong Ngo is concerned, all that you have to be satisfied of in order to convict him is that he was involved in the enterprise that resulted in a shooter, whoever it was, killing John Newman. Let me give you some alternative hypotheses which are not part of the Crown case because I have to try and anticipate what your thought processes might be. Let’s assume at the end of the day that you are not sure whether T was there as an observer like he said he was. It may be you think he had some idea what was going to happen that night. That, in itself, would not prevent you from convicting Phuong Ngo. So long as you are satisfied that John Newman was killed by a shooter, whoever it was, that was part of the joint enterprise that Phuong Ngo was the mastermind of, then you could convict Phuong Ngo.
I will address you later in relation to the situation with Quang Dao and David Dinh. In relation to David Dinh it is somewhat different. So, even if you aren’t satisfied who the shooter was, you could still convict Phuong Ngo.
Now, of course the Crown case is unequivocally that David Dinh was the shooter and that T was there having been duped by Phuong Ngo to be in the car. He knew what was going to happen by the time of the shooting. There was nothing stopping him getting out of that car and saying, “Sorry, I’m not part of this; I’m out.” Because when he saw that white car he realised where he was and he knew that something awful was going to happen, and he had seen the gun and the gloves. So he is no angel, in a sense he was involved in the shooting because he knew something dreadful was going to happen, but he says he was duped into getting into the car. I will come a little later to consider that more closely, particularly in relation to the case against David Dinh”.
In closing, as to Dinh, the prosecutor said:
“Now, there is a little bit more that I would like to say about the identity of the shooter. In relation to the case against David Dinh because the Crown alleged that he was the actual shooter and that that was his role, the Crown, in relation to David Dinh, needs to prove that he was the actual shooter. That’s the only essential fact that needs to be proven beyond reasonable doubt in relation to David Dinh.
Now, again I don’t know what your conclusion might be on the facts or what your thinking may be on the facts. It is not necessary for you to come to any definitive conclusion about whether or not Mr T had any other role on that night, other than what he says he had, which was, in effect, as an observer, in relation to the case against David Dinh. Or to put it another way, if you are satisfied that David Dinh was the shooter, but you are not sure what T’s role was, that does not mean that you cannot convict David Dinh. You can still convict David Dinh. Of course, T says that he was duped into going in the car and he was just an observer that night. But if you were not satisfied of that beyond reasonable doubt that does not matter. All you need to be satisfied of beyond a reasonable doubt is that David Dinh was the shooter. If you are not satisfied that David Dinh was the shooter, then he is entitled to be acquitted. If you are satisfied that David Dinh was the shooter, then your duty is to convict him.
Of course, the Crown case is that Phuong Ngo would not have got T to be a shooter. He would not have got this man who would not even hold the gun at the John Newman home attempt. There was only one gun that was fired at John Newman’s home. Lucy Wang only saw one person. T had shown this reluctance to even touch the gun at John Newman’s home in the earlier attempt, let alone fire it in quick succession four times.
You might think that if a gun had gone off even once in Mr T’s hands he probably would have dropped it in fright. We submit that he could not have been the shooter. Even N thought that T was a hopeless assassin. That’s why he left the joint enterprise”.
The appellant then sets out the passages from the Summing-up cited above.
The appellant submitted that the only evidence as to T’s role in the car on the night came from T and it did not change. It was suggested to him by counsel for Dao that he was the shooter but this was denied. To counsel for the appellant T said that he played no role in the shooting at all. There was the evidence of gunpowder residue on T’s coat lining but that, as far as the appellant was concerned, was as far as the evidence went in pointing to T being the person who discharged the firearm.
The submissions outlined above in relation to Ground 15, especially those made orally, are repeated to the effect that in addressing the question of the liability of the appellant, the jury should not have been left with the proposition available to them for consideration that T was the shooter in the absence of any evidence in addition to the material above referred to. Even assuming that there was a foundation in the evidence for such a proposition – that T was the shooter – the appellant submits that it meant that the jury at least on that version must have rejected T in respect of fundamental aspects of his evidence. That, it was submitted, clearly would have had most serious implications in relation to his credibility in connection with the case against the appellant. It was argued that the directions given by the learned trial judge had the effect of downgrading the difficulties with which a trier of fact must have been confronted, if not satisfied that Dinh was the shooter, in the case against the appellant. In summary, as was contended essentially in relation to Ground 15, it was submitted that, first, the jury was told that an acquittal of Dinh would affect the credibility of T in relation to Dao (and, it is said, by implication, of the appellant). Secondly, and coupled with, the fact that the jury were invited to consider the proposition the T himself was the shooter without addressing the various “serious implications” that this would have had for T’s credibility in the case against the appellant, this combination of errors, the appellant contends, caused the trial to miscarry.

In oral submissions the Crown was understandably a little confused as to what precisely was being put by the appellant in relation to the Crown’s posture with respect to the proposition that T may have been the shooter. In so far as the appellant’s submissions seem to suggest that the Crown had changed its case late in the peace, there was no foundation for that. The suggestion, as has been stated, came from Dinh’s counsel. In relation to there being no evidence that T was the shooter there was material, as the Crown submitted, of which the defence in the trial took some advantage. The lining of the jacket seized from T’s home, a jacket that did in fact belong to him, was found to have upon it Winchester gunshot residue, Winchester gun powder conclusively having been shown to have been involved in the ammunition used in the crime. That constituted a basis for the defence to raise if not pursue the notion that T himself was the shooter.
In relation to the appellant’s reliance on T telling senior counsel for the appellant that he played no role in the shooting at all, it is pointed out that T did not tell counsel for the appellant that “gratuitously”: the matter arose in the cross-examination of T by Mr Cusack for Dao:
“Q.Then you had to have a shooter. That’s a person who used the gun, didn’t you?
A.           That’s right, yes.
Q.           That was to escape your culpability, wasn’t it?
A.           Can you put the question again?
Q.            Is it the fact that you were the shooter?
A.            No, sir.
Q.           You deny that, do you?
A.           I didn’t do it”
Further, the gunshot residue on his jacket was something mentioned in the address of counsel for Dinh. The Crown case “was” that Dinh was the shooter.
The Crown points to the jury as having been reminded by his Honour, after further submissions were made, as to the role played by Dao. This further direction was given as a result of a question asked by the jury:
“The jury would like to know do we have to deliberate in whether Quang Dao was the driver on the night of the murder and if he was involved in the common purpose or just if he was involved in the common purpose?”
His Honour then said to the jury in answer to their question:
“The only part allegedly played by Quang Dao on 5 September 1994 was as driver of the vehicle. You must be satisfied beyond reasonable doubt that he drove the shooter to the scene and that he knew, when he did so, that they were going there to shoot John Newman. He must be part of the common purpose but the proof that he was part of the common purpose is his knowledge that they were going there to shoot John Newman. If he knew they were going there to shoot John Newman and he was the driver, that is it. That establishes his part in the common purpose. If you thought that he had been part of the common purpose prior to 5 September but were not satisfied beyond reasonable doubt that he was outside John Newman’s house on that night, he must be acquitted”.
No further direction was sought in relation to that by Mr Cusack.
His Honour said quite clearly that the case against Dao was a very confined one which did not necessarily involve the identity of the shooter.
As the Crown put it in oral submissions in relation to Dinh it was a very limited case: was he the shooter? - otherwise acquit. In the case of Dao: was he the driver of the shooter? - otherwise acquit. In respect of the appellant the case was much more broad involving responsibility, in the way in which his Honour described it, in which the identity of the shooter, correctly, was not an essential part.
There seems to have been a suggestion in the appellant’s submission that if T was the shooter then he was not doing it for the appellant. There was no material in the trial, as the Crown says, that if he was doing it, that he was not doing it for Ngo. The logic is missing because if T was the shooter it did not necessarily mean he was not doing the shooting for Ngo.
The appellant in reply, in brief oral submissions, referred again to the “propping up” of T as the shooter in the absence of evidence on the one hand and in the direction to the jury, on the other, that “it does not matter”. The floating of the notion that T was the shooter, the appellant repeated, created a whole different scenario in terms of credibility.
We are of the view that with the utmost respect to the submissions advanced for the appellant on Grounds 15 and 15B, in relation to the latter nothing was advanced further that would persuade us that the supplementary Ground 15B, discretely or in some way combined with Ground 15, has been made out. In the end, what the learned trial judge in his Summing-up did was conformable, first, with the fundamental structure of the Crown case relating to Dinh being the shooter, and secondly, by adverting to and placing in context, in our respectful view, the suggestion that T may have been the shooter, properly, firmly and with clarity reinforced for the jury, as was described during the course of oral argument, the very important proposition that in a joint trial of this kind the three cases have to be kept separate and that the only thing that was alleged against Dinh was that he actually fired the shot. That Dinh was the actual shooter was the essence of the Crown case against him. In relation to the other two accused, as his Honour quite rightly said, it really did not matter who the shooter was provided the Crown proved beyond reasonable doubt in the case of Dao that he drove the car; and that in the case of the appellant he was the mastermind.
A perception reflected in the appellant’s submissions as to the significance of the suggestion by one co-accused that T was the shooter has been elevated disproportionately in our respectful view. The suggestion made was properly dealt with by his Honour within the fundamental structure that it was the Crown case that Dinh was the shooter, Dao was the driver and the appellant the mastermind. We are not persuaded, viewing the whole of the Summing-up and the way in which his Honour dealt with each case in appropriate fashion, that the approach of the jury was imperilled by either the introduction of the notion of T being the shooter, his Honour’s dealing with it, or that there is any basis for concluding by reason of a conviction that the jury went astray in that regard.
Grounds 15 and 15B fail.
Ground 18 - the trial Judge failed to direct the jury adequately as to the limits on the use they could make of the evidence of the previous attempts and plans to kill the victim
There was evidence from T and N as to their involvement in two attempts to kill the deceased carried out at the direction of the appellant. N gave evidence of his and T’s involvement with the appellant in further plans to kill the deceased though T denied these matters. Both gave evidence of their purchases of firearms (at the behest of the appellant) and their attempts to recruit other persons to kill Mr Newman at the behest of the appellant. The broad canvas of the evidence has been covered in relation to Ground 8.
In relation to this material his Honour directed the jury as follows:
“Finally, let me draw your attention to the fact that the accused are charged with the murder of John Newman on 5 September 1994. They are not charged with any of the previous attempts on his life, or loitering in Judith Avenue or Bowden Street the previous week, or the illegal purchase of firearms. Evidence on these matters is only relevant insofar as it tends to prove the participation of the various accused in the murder of John Newman on 5 September and their involvement in the common purpose to bring about such a murder”.
The appellant contends that it was necessary for the learned trial Judge to warn the jury that if they were satisfied of the appellant’s involvement in any or all of these activities they were not entitled thereby to reason that he was more likely to have been involved in the murder by reason of being of bad character or having a propensity for criminal or violent conduct.
This Court was referred to the observations made by Kirby J in BRS v The Queen (1997) 191 CLR 275 at 331-2 as to the need for a direction clearly limiting the use of evidence that raises an accused’s propensity. That was a sexual assault case and, of course, in that trial no direction at all was given.
A substantial amount of time was devoted in the Crown case to the activities of the appellant preparatory to the offence. Thus, it was said, there was a danger that the jury would conclude that the appellant was of a violent or criminal disposition and use that conclusion improperly to fill any gaps that there might be in the Crown case and thus, without an appropriate warning and full directions, the trial miscarried.
As the Crown has pointed out, evidence of the earlier activity (the purchase of firearms and an attempt to recruit a shooter at the behest of the appellant and the abortive plans and attempts to kill the deceased) was evidence of the preparatory activity which culminated in the events of 5 September 1994. The evidence was relevant to the existence of a joint criminal enterprise, presided over by the appellant, to murder Mr Newman on that date. As the Crown, in our view correctly, points out, the quality and purpose of that evidence was different in nature to that with which the High Court was concerned in BRS. In that case the evidence was of the appellant’s similar sexual misconduct with another pupil on an occasion not the subject of any count in the indictment. It was led in rebuttal of evidence tending to establish the good character of the appellant.
It was argued for the Crown that evidence of events in the nature of preparatory activity leading to the commission of the subject offence does not, generally speaking, carry the risk of a jury adopting impermissible propensity reasoning. The Crown characterises the appellant’s submissions in relation to this ground as tantamount to saying that a trial judge has an obligation to warn a jury that evidence, for example, of the illegal acquisition of a firearm and the theft of a car cannot be used to reason that an accused must be guilty of the armed robbery for which the accused stands charged. That reasoning would be so illogical as to constitute an affront to the intelligence of jurors. The Crown suggests that dangers of improper reasoning are more likely to arise in sexual assault cases involving children, which trials arouse emotions especially. For the reasons stated above BRS, being a sexual assault case in which no direction was given, is not quite to the point.

It can be seen that his Honour gave the jury a clear direction as to the only use that could be made of the evidence. This direction, at least implicitly, warned the jury against making any other use of the evidence. It is the absence of the express warning as to how “not to” use the evidence that is the subject of complaint.
The general subject matter to which this ground relates, was only raised in the context of the period to be covered by the evidence of preparation in the course of Mr Nicholson’s closing address to the jury. Otherwise it must be observed that at the time the evidence was given no objection was taken to it. At the time the evidence was given no request was made by any counsel for his Honour then to direct the jury as to the use to be made of it. Further, upon his Honour directing the jury in the terms set out in the passage above, no application was made by any counsel for a further direction.
In the course of oral submissions on appeal much emphasis was placed on this failure in the course of the conduct of this substantial trial by experienced counsel. As was further remarked it has been consistently stated in this Court that trawling through a Summing-up after the conclusion of a trial when no complaint was made by the appropriate person at the appropriate time was a course to be “deprecated” to use the language of Street CJ in R v Chidley (1956) 73 WN (NSW) 376; see also R v Saffron (1988) 17 NSWLR 395 at 434. The failure to object or to seek a redirection can often indicate that the point taken on appeal was not, in the atmosphere of the trial, considered to be important and thus lead to the conclusion that there as been no miscarriage of justice.
In this instance it is quite correct, upon the analysis of the words used by his Honour in the cited paragraph, that his Honour does not in express terms indicate to the jury how they are not to use the evidence. He makes it perfectly clear, however, how they are to use the evidence. It is clear that this was a forceful and important concluding component within the structure of his Honour’s Summing-up. It did not, however, provoke the slightest protest or complaint.
During the conduct of the trial, leading to the creation of its very atmosphere, it is patent that the evidence of this other criminal behaviour was directed to the preparatory steps to the commission of that offence for which the three accused stood trial. No other characterisation occurred to counsel (and, it must be acknowledged, to his Honour) that warranted forensic intervention or judicial clarification.
We do not see how in those circumstances the appellant can now argue for the first time that he has suffered a miscarriage of justice, the more so in circumstances given the scale of this trial and the quality of legal representation when there was no perception of any risk thereof at the pertinent times.
This ground of appeal fails.
Orders
The appeal is dismissed.
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LAST UPDATED: 16/04/2003