R v Nguyen

[2001] QSC 99

SUPREME COURT OF QUEENSLAND

CITATION:

R v DUNG NGOC NGUYEN [2001] QSC 099

PARTIES:

THE QUEEN
v
DUNG NGOC NGUYEN

FILE NO:

93 of 2000

DIVISION:

Trial Division

DELIVERED ON:

6 April 2001

DELIVERED AT:

Brisbane

HEARING DATE:

21 March 2001

JUDGE:

Mackenzie J

ORDER:

1.  Leave is granted to the Director to reopen the ruling made on 27 September 2000.
2.  That ruling is set aside.

CATCHWORDS:

CRIMINAL LAW – JOINT OFFENDERS – MURDER - Application for leave to re-open a ruling under s 592A – whether jurisdiction to give leave can only be given after the trial has commenced – whether the trial commences when plea given – whether further evidence constitutes a “special reason” to give leave to re-open a previous ruling.

Criminal Code s 7, s 8, s 592A
Penalties & Sentences Act 1992 (Qld) s13A

R v Andrews [1987] 1 Qd R 21
R v Hall [1986] 1 Qd R 462
R v Williams [2000] QCA 409

COUNSEL:

P Ridgway for the Crown
D Lynch for the accused

SOLICITORS:

Queensland Director of Public Prosecutions for the Crown
Legal Aid Queensland for the accused.

1. MACKENZIE J: This is an application by the prosecution for leave to reopen a ruling under s592A that Dung Ngoc Nguyen should be tried separately. This may only be done if the trial judge for special reason gives leave. It will be necessary to return to s592A later.

1. Indictment 93 of 2000 was presented on 21 February 2000 charging Dien Cong Duong, Tam Chi Ngo, Dung Ngoc Nguyen and Vinh Chi Pham with murder.   The "special reason" relied on by the prosecution is that since the ruling was given, one of the persons jointly charged with the offence has pleaded guilty to a charge which the prosecution has accepted in full discharge of the indictment against him.  In this connection a fresh indictment, 555 of 2000 was presented against him and a nolle prosequi entered against him on 93 of 2000.  This person, Vinh Chi Pham, has given an undertaking pursuant to s13A of the Penalties & Sentences Act to give evidence against other accused persons.

1. The argument on behalf of the prosecution is that the new evidence removes a critical factor which led to an order being made that Dung Ngoc Nguyen be tried separately from the other accused on indictment 93 of 2000.  To consider the application further it is necessary to recite some of the history of the matter. 

1. Originally six members of the Vietnamese community were charged with the murder of another Vietnamese.  Only the four included in indictment 93 of 2000 were committed for trial.  As previously mentioned Vinh Chi Pham pleaded guilty on indictment 555 of 2000 to assault occasioning bodily harm.  Tam Chi Ngo pleaded guilty to being an accessory after the fact to murder on indictment 549 of 2000.  A nolle prosequi was entered against him on 93 of 2000.  A new indictment 548 of 2000 was presented against Dien Cong Duong and a nolle prosequi entered against him on 93 of 2000.  The effect of this is that Tam Chi Ngo and Vinh Chi Pham are no longer involved in any proceedings before the court.  Dien Cong Duong is currently indicted separately on 548 of 2000. 

1. The next development was that, on the basis of Vinh Chi Pham's evidence, the two men who were originally discharged at committal, Dung Lam Quoc and Lam Thanh Bui were subsequently committed for trial and indictment 86 of 2001 has been presented against them.

1. The prosecution wishes to have the trial of all four remaining accused heard together.  The intention is to present one indictment including all four accused for that purpose to replace the three separate indictments, 93 of 2000 against Dung Ngoc Nguyen, 548 of 2000 against Dien Cong Duong and  86 of 2001 against Dung Lam Quoc and Lam Thanh Bui jointly. 

1. Because of the complex situation with regard to management of the trial no trial date has been set. That, upon reflection after the matter had been argued, raised the question whether there is a "trial judge" within the meaning of s592A(3).

1. At the moment there is an order in favour of Dien Cong Duong that he be tried separately from Dung Ngoc Nguyen. There is currently no direction or ruling at all under s592A as to the conduct of the trial of Dung Lam Quoc and Lam Thanh Bui. It would certainly be technically open to the Crown to join Dien Cong Duong and Dung Ngoc Nguyen with them in one indictment since the allegation is that all four are parties to the offence of murder.

1. However, in consequence of the previous ruling, Dung Ngoc Nguyen has an order, in his favour in respect of the same offence, that he be tried separately from Dien Cong Duong. In my view the order in his favour cannot be overridden simply by presenting a fresh indictment for the same offence. That would be contrary to the legislative intent of s592A. However at the time the order was made there was jurisdiction to do so because there was an indictment before the court against him (even though a nolle prosequi has subsequently been entered against each of the others on it) and an order that he be tried separately for the particular offence was made. That ruling, in my view, remains binding unless the trial judge for special reason gives leave to reopen it.

1. The remaining technical question which arose, upon reflection, was whether there was jurisdiction to give leave to reopen a ruling by using s592A outside the trial, or whether it must be done only after the trial has commenced. Section 594(3) provides that the trial is deemed to begin and the accused person is deemed to be brought to trial when the person is called on to plead to the indictment and to say whether he is guilty or not guilty of the charge.

1. Section 592A(3) specifically refers to the "trial judge". It may have been the legislative assumption that no circumstances would arise where it was convenient to provide for reopening of a ruling except at the trial. That appears to be consistent with the use of the expression "trial judge".

1. The present case is a clear example where it would be far more convenient to allow the question of separate trial to be determined outside the context of the trial itself. It is the very sort of issue which was a major factor in the enactment of s592A. However, the wording in terms of s592A(3) seems to require that the trial be taken to have commenced prior to the application for leave to reopen the ruling being made. In those circumstances a minimum requirement appeared to be that the accused be called on to plead to enable the application to be made in the expectation that an indictment jointly charging him with other persons (accepting that there is already an order which entitles him to be tried separately from one of the other people on the indictment) would be presented. Joinder of parties in the one indictment and ordering a separate trial of one or more on the indictment are not incompatible.

1. On this view of the matter the only way in which compliance with s592A could be achieved was to call on the present applicant to plead, make the ruling as to whether leave to reopen would be given, determine the outcome of the application if leave was given and adjourn the trial to a date to be fixed.

1. I have acted on the view that use of a device of this kind in the knowledge that the judge dealing with the application will not necessarily be the actual trial judge is permissible.  Since the trial is deemed to have begun when an accused is called on to plead and there is power to adjourn a trial, in my opinion it is.  Both counsel accepted this approach without reservation, and repeated and relied on submissions previously made in the trial commenced by the applicant's plea of not guilty.

1. The reasons for granting Dung Ngoc Nguyen a separate trial are set out in the decision given on 27 February 2000.  In summary he had admitted very limited involvement in the killing in the record of interview.  He admitted striking only one light blow.  Vinh Chi Pham's record of interview ascribed to the respondent a far more direct and serious involvement in the killing than could be established by evidence admissible against the respondent.  I ruled that standing alone, the case for granting a separate trial on this ground would be near the borderline.  However, there was a further disadvantage which, in combination with the evidentiary disparity, clearly tipped the scales in favour of a separate trial.

1. The records of interview of the other three accused then charged were in English and were electronically recorded whereas the applicant was questioned electronically in Vietnamese.  There was also a further disadvantage concerning the way in which the questioning was translated which in my view at the time placed him at a disadvantage as well.

1. Now, evidence similar to the version given in the record of interview by Vinh Chi Pham will be given by him as a witness provided he adheres to his s13A undertaking.  This evidence will be admissible against the respondent whereas previously it was inadmissible and had a tendency to be unduly prejudicial against him. 

1. It was accepted that the principles relating to separate trials set out in the previous reasons govern the present application.  So far as the application concerning a separate trial from Dien Cong Duong is concerned there has plainly been a material change in the evidence admissible against him as to the extent of his involvement.  The disparity between the strength of the cases against Dung Ngoc Nguyen and Dien Cong Duong is greatly lessened. 

1. Had this been an application for a separate trial the current state of admissible evidence against each would not have been an influential matter on the question of whether one should be tried separately from the other.  It is true the difference between the methods of presentation of the record of interview before the jury will remain.  However, this would not be enough on its own to justify a separate trial if the matter had been an application for a separate trial in the first instance.  As between the two accused originally indicated there is no compelling reason why they should be tried separately had the matter come before me as an application for a separate trial on the present evidence.

1. A further element is that there are now two other persons both of whose records of interview were taken under translation from the Vietnamese.  In that respect and with the reservation that the translation difficulty is not quite as marked in their cases, they are in the same position as the appellant with regard to their versions being put before the jury. 

1. I have had access to the records of interview of Dung Lam Quoc and Lam Thanh Bui which are largely exculpatory of themselves and not particularly detailed as to the role of others in the killing.  There is nothing in them which places the present respondent at an unjust disadvantage if he is tried with them.  In real terms the case against him depends on acceptance of the evidence of Vinh Chi Pham since his own record of interview is largely exculpatory and that of Dien Cong Duong is inadmissible against him. 

1. Had the application been one for a separate trial, as the case now stands, no grounds for a separate trial would have been made out.  However, the ruling was previously given on the case as then framed and the ruling can only be reopened if leave is given "for special reason".  Mr Lynch's submissions focus on a number of matters which are said to influence this question. 

1. It was submitted that the onus of demonstrating special reasons sufficient to warrant overturning the earlier ruling had not been discharged.  It was submitted that the records of interview of the other persons presently accused implicate the respondent either expressly or by implication to a greater degree than his own record of interview does.  It was submitted that the fact that the record of interview of Dien Cong Duong is capable of being led in electronic form and the others, and in particular the respondent's are not had to be taken into account.  I have referred to the last two matters above.  I do not think they are decisive for the reasons given.  

1. The other line of attack against the application is that it is fundamentally unfair and akin to an abuse of process to now require the respondent to be tried jointly.  It is submitted that the use of the evidence of Vinh Chi Pham at this stage is a "tactical response" to seek to subvert the previous ruling.

1. The history of the case is relied on in support of this proposition. In summary, the construction placed on the history is that after Dung Lam Quoc and Lam Thanh Bui were discharged at committal, the prosecution chose to indict the remaining four together and resisted the argument that they should not be tried together. Then, having been pressed, the case was particularised against the respondent as being alternatively under s7(1)(b), s7(1)(c) or s8 of the Code.

1. It was submitted that the Crown chose not to adopt the course of trying Vinh Chi Pham on his own first and then calling him as a witness against other persons. There was some debate as to the process of this. The argument seemed to run that he could have been tried and convicted and then called as a witness, whether reluctant to do so or not. The prosecution would be able to rely on the record of interview using s101 of the Evidence Act if he proved to be unwilling to give evidence. 

1. The legitimacy of such a practice is established by decisions of the Court of Appeal in R v Hall [1986] 1 QdR 462; R v Andrews [1987] 1 QdR 21; R v Williams [2000] QCA 409, but in my view has unsatisfactory features especially if the witness is known to be unwilling to give evidence prior to being called. It is not necessary to elaborate further on that issue for present purposes.

1. It was submitted that if Pham's evidence was relied on, a change of particulars would be necessary and that it was unfair that the Crown should be allowed to change the basis of its case at this stage.  It was submitted that to do so represented a back flip which I take to mean that indicting the respondent with murder when, if he had been tried separately he may well have been acquitted on the state of the evidence as it then stood, but now preceding against him on considerably strengthened evidence, is unconscionable. 

1. It seems to me that when the respondent was given a separate trial it was not surprising that the Crown chose to proceed against the three remaining persons jointly rather than to select the respondent's trial to be the first in the series. 

1. With regard to the submission that the decision to accept the plea of guilty from Pham and call him as a witness was a tactical manoeuvre by the director, it is noted that he pleaded guilty to an offence of assault occasioning bodily harm at the commencement of the trial of the three accused who could be tried together.  There was no evidence to suggest that this plea was accepted for an ulterior purpose.  There is nothing in the evidence to suggest that what happened at the commencement of the trial was other than an offer to plead to a lesser charge, which the prosecution was prepared to accept in discharge of the indictment.  It was a case where Pham then was prepared to give an undertaking give evidence pursuant to s13A of the Penalties & Sentences Act. 

1. When the evidence which is in essentially similar terms to Pham's record of interview and which attributed a greater role to the respondent than he admitted became available, it is not surprising that the prosecution took the view that the nature of the case had fundamentally changed.  It is true that the respondent's chance of acquittal became rather less then than it would have been if the trial had proceeded on the evidence originally available, but the fact that additional evidence became available in the circumstances existing cannot render it unfair to proceed on the basis of that additional evidence.

1. It cannot be overlooked that the offence of murder is a most serious offence.  There is a substantial public interest in the prosecution of persons who are alleged to be guilty of it if there is evidence available which may establish the offence.  In this connection it cannot be overlooked that refusal of the present application would not effect a stay of proceedings.  All that refusal would mean is that the respondent would be tried in any event on the evidence presently admissible against him in a separate trial.  Where offenders are alleged to have committed an offence jointly, ordinarily it is appropriate that they be tried together.  The question is whether an order that the respondent be tried separately from Dien Cong Duong having been made, the fact that further evidence has now become available is a "special reason" for giving leave to reopen the previous ruling. 

1. Use of the term "special reason" suggests that reopening should not be allowed as a matter of routine.  In a case where the obtaining of additional evidence is said to constitute a "special reason" I would not exclude the possibility that there may be questions of degree involved in deciding the question.

1. However, I am satisfied that the present case falls into a category where the evidence significantly changes the complexion of the prosecution case against the respondent and is of a kind where cogency is, as the matter appears at this point, not likely to be affected by major inconsistencies with what the proposed witness said in his record of interview.  Further, a joint trial would not confer an undue advantage to the prosecution on the evidence now available and on a consideration of the context of other evidence which the jury would hear which may not be admissible against him.          

1. Weighing up the various factors I have come to the conclusion that there is "special reason" in this case for reopening the ruling. The effect of setting aside the ruling will be to allow the rules of joinder of parties to operate to the extent that the Criminal Code allows at the election of the Director of Public Prosecutions.

1. I make the following orders:

1.Leave is granted to the Director to reopen the ruling made on 27 September 2000;

2.That ruling is set aside.