R v Nguyen

[2010] HCATrans 185

[2010] HCATrans 185

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M23 of 2010

B e t w e e n -

THE QUEEN

Applicant

and

DANG QUANG NGUYEN

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 30 JULY 2010, AT 10.07 AM

Copyright in the High Court of Australia

MR T. GYORFFY:   If it please the Court, I appear with my learned friend, MR B.L. SONNET, for the applicant in this matter.  (instructed by Director of Public Prosecutions (Vic))

MR P.F. TEHAN, QC:   If the Court pleases, I appear with my learned friend, MR. P.J. MATTHEWS, for the respondent in this matter.  (instructed by Michael J Gleeson & Associates)

HAYNE J:   Yes, Mr Gyorffy.

MR GYORFFY:   Your Honour, the first matter that has to be dealt with is that the application was filed out of time.  There is an affidavit by Marjorie De La Fuente setting out the basis of that.

HAYNE J:   If time were counted from the delivery of reasons, you would be within time.  If time is counted from the date of the order, which I suspect is the right time, you are well out of time.

MR GYORFFY:   Yes, your Honour. 

HAYNE J:   Yes.  Perhaps if we hear your argument more generally and then later we will hear from Mr Tehan whether this question of time alone is reason enough to meet it.

MR GYORFFY:   Yes, your Honour.  Essentially, your Honour, this is an application brought within the concepts that are found in paragraph 54 of this Court’s decision in R v Hillier.  It is appreciated that it is a high hurdle to overcome to succeed on that ground.  The essence of the ground is that what occurred before the Court of Appeal was not in accordance with law and, therefore, what is sacrosanct, namely, a conviction by a jury, has been set aside not in accordance with law and, therefore, falls within that principle. 

HAYNE J:   Now, presumably, it is said that it is in the interests of justice in the particular case that there be a grant of leave.  One question which may bear upon that is the chronological question presented by the face page of the reasons in the court below.  Am I right to understand this man stood his trial in 2007?

MR GYORFFY:   Yes, your Honour.

HAYNE J:   Stood for sentence just in December 2007?

MR GYORFFY:   Yes.

HAYNE J:   Is there any explanation for why his appeal against conviction and sentence comes on for hearing in July 2009?

MR GYORFFY:   No, your Honour, other than it is fairly average in the court in Victoria for a conviction appeal to take about two years to get on.

HAYNE J:   Is there anything revealed by the papers which would explain why, having been heard in July, orders were made as late as December 2009 and reasons not published until February the following year?

MR GYORFFY:   There is nothing that would be seen in the papers to deal with that issue.  If I may be permitted to make an observation, your Honours, counsel who appeared for the Crown below, it was apparent that there was some resistance from one of the judges to the decision and that took a while.

HAYNE J:   The decision is unanimous. 

MR GYORFFY:   Yes, it ended up as unanimous.  In fact, what the indication was, that one of the judges, Justice Bongiorno, had not reached his conclusion as of December in terms of the matter.

HAYNE J:   Be it so, what is the custodial position of Mr Nguyen?

MR GYORFFY:   I understand he has been released and is free.

MR TEHAN:   He is in this Court now.

HAYNE J:   Does it not follow that the application is an application for leave to appeal to the Court which you would say would lead to what outcome?

MR GYORFFY:   What is sought, your Honour, is for the matter to be sent back to the Court of Appeal to be dealt with according to law, in essence, because if Crown says that ‑ ‑ ‑

HAYNE J:   Well, is that another year or so’s wait, possibly longer, in this matter?  I say it once to you, Mr Gyorffy, the chronology in this matter, speaking only for myself, is troubling and to be asked to bring the matter up, send it back, another year to elapse and matters that give rise to the charge against Mr Nguyen occurred in 2004 and here we are in 2010.

MR GYORFFY:   Yes, your Honour.  I cannot say when it would be heard, but the court does have the power to give an expedited hearing to these matters.

BELL J:   Mr Gyorffy, can I just raise this with you.  In the appeal before the Court of Appeal, initially the respondent did not make any complaint concerning the correctness of the judge’s directions including, with respect to the availability of a verdict of manslaughter on various alternative bases.  That was the subject of challenge on the part of the co‑accused, Khoa.  That challenge did not succeed in relation to Mr Khoa’s appeal. 

MR GYORFFY:   What happened, your Honour, was that leave was given to the respondent to also avail himself of that ground and he failed, too.  That ground was not accepted by the court and he succeeded, as my learned friend rightly puts on the further ground of unsafe and unsatisfactory.

BELL J:   If you were successful on your ground ‑ ‑ ‑

MR GYORFFY:   It goes back.

BELL J:   Yes.  I wonder if I might raise with Mr Tehan, is there any issue, in the event that were to occur, Mr Tehan, concerning the disposition of the ground dealing with the directions concerning manslaughter?

MR TEHAN:   Not here, no.

HAYNE J:   Would there be if the matter came up here?  Would it be said that or would it later be sought to be said in a Court of Appeal if it were to be remitted there, look, the complicity directions were wrong and that it is a retrial point?

MR TEHAN:   Maybe.

HAYNE J:   That seems to lead to this conclusion, Mr Tehan.  You should understand that when it comes to your time, if we call on you, to address it.  If it comes up here, it all comes up here, I suspect, and that may have to include the complicity issues.  There seems to have been a considerable elaboration, possible over‑elaboration, of what may have been a singular set of factual disputes, but there we are.  Perhaps we should continue to hear from Mr Gyorffy.

MR GYORFFY:   Thank you, your Honours.  Yes, your Honour, that stays there.  Should the Crown succeed, it is asking that it go back precisely because this matter has not been dealt with according to law below and it enables those matters to be looked at again.  Your Honours, the main point of this complaint by the applicant is that it is not possible for the court to assess the strength of the evidence before the jury unless it clearly identifies, in the course of the decision, what that evidence is.  What has been done here by the applicant is to do that in paragraph 2.2 of the appeal papers and the applicant’s summary of argument in paragraph 2.2.  I note that not one of those paragraphs is contested by the respondent in the respondent’s submissions. 

The respondents simply say that that is an over‑selective view of the facts.  In my submission, we are entitled to take an over‑selective view of the facts when we come from the position of a conviction by a jury and what we are looking at is that evidence which was open to the jury in order to come to that conclusion of a conviction.  Now, not having isolated those facts in that way, their Honours had a series of facts which contained inconsistencies in it which were never resolved.  Perhaps the key inconsistency was the time between the shots.  Which witness’ evidence was going to be accepted there?  The second nature complaint that is made is, in effect, when one goes to ‑ ‑ ‑

BELL J:   I am sorry, Mr Gyorffy, but before you move to that, can I take up with you, in your summary of the facts there was some evidence from some witnesses that the respondent was asking for the man, Mau, when he entered the lounge room, is that correct?

MR GYORFFY:   Yes, your Honour.

BELL J:   I am just not quite sure whether I see that in your ‑ ‑ ‑

MR GYORFFY:   That is actually dealt with, I think, in the respondent’s submissions.  It was the witness, Kathleen Quach, I think, and then she was cross‑examined and she became less certain as the cross‑examination went on.  I think your Honour will find that in the submissions of the respondent.

BELL J:   Yes, I see, thank you.

MR GYORFFY:   But certainly Kathleen Quach was the one who said that he was the first into the room.

HAYNE J:   But asking for Mau?

MR GYORFFY:   I am sorry?

HAYNE J:   But he was asking for Mau?

MR GYORFFY:   I believe she said that, your Honour, yes, and that was what she was challenged on later.

HAYNE J:   Because I saw that the trial judge, in sentencing the respondent, in her remarks on sentence found as a fact that he had come into the room asking for Mau and whether armed with a sword then or later, when he arrived at the flats or when he entered the flats, he was asking for Mau at a time approximate to his being armed with a weapon.

MR GYORFFY:   At a time, we would submit, when he was armed with the weapon.  While your Honour is looking at the findings of the sentencing judge, the other important fact is that she did find beyond reasonable doubt that the other accused, Khoa, had indicated in one or other ways that the first victim should be shot.  She found that beyond reasonable doubt as well.  I raise that because it is important for the final point the Crown makes which is the advantage that the jury had in assessing the evidence which was not addressed at all by the court. 

So that is the most important aspect, that it is submitted that it is impossible to go and assess the strength of the case if you do not work out what precisely that case is made up of and what was done here was simply a recitation of the facts which contained a series of inconsistencies which were never resolved by the court before seeking to apply the test in M.  The other aspect, which is submitted is of significance is what is said in paragraph 3.14 of the submissions.  That is a point I have just made. 

Paragraph 3.4.  The second major complaint that the applicant has is that when one looks at the paragraphs where the court gives its reasons, 104, 105 to 107, what is done is certain items are taken and they are used to say there should have been a reasonable doubt and it is submitted that most, if not all, of those items are irrelevant to the question of assessing what the strength of the Crown case was.  To say that there was no evidence that the respondent knew that the others were involved in heroin trafficking does not say anything about the weight of the evidence that exists about what happened and his actions and words when he was inside the flat – again whether he knew about the drug debt. 

The lowest the evidence reaches so far as the Crown case is concerned is that Ho had said that he was going to collect money at the flat.  Everybody knew that.  That was the reason why they diverted to the flat.  None of those factors there, whether Ho was carrying a gun and it was known before they went into the flat, none of those factors go to determining the weight of the Crown case as it was presented.  They are, in effect, irrelevant.  So the submission is that not only has the court not identified the relevant facts, but it has acted on irrelevant considerations to quash what was, it is submitted, a perfectly proper verdict by the jury.

I have touched on the jury had the advantage of looking at these witnesses.  If ever there was a case where that was important, this was it.  It had interpreters.  Interaction between the interpreters and the witnesses would be a key element in determining to what extent one could rely on that evidence.  It was a case in which there was obviously quite a bit of trauma

because people who had been cut had no memory or gave no evidence of the fact that they had been cut.  These were difficult aspects that could only be assessed by the jury looking at those witnesses and forming its own view.  That is not something that comes through on the transcript.  Hence, I go back to the point that your Honour Justice Hayne has raised about the trial judge’s interpretation of facts and the other matter I have raised there.

The effect of all of this is that the analysis of facts that is required by M v The Queen to determine whether there should have been a reasonable doubt in the jury just has not occurred.  This proper verdict of the jury has been set aside on grounds which are irrelevant and which are matters that have not been tested against the relevant facts and it is submitted that that falls right into the category of the test as found in Hillier. 

I suppose, in relation to the time issue, I understand what your Honour is saying.  The question is whether or not the fact that a perfectly legal conviction by a jury represents a serious matter of importance to the public outweighs the time delays that have occurred because, in essence, the person who has been properly convicted of one of the most serious of crimes is walking free.  Thank you, your Honour.

HAYNE J:   Yes, thank you, Mr Gyorffy.  Yes, Mr Tehan.

MR TEHAN:   Your Honours, could I say firstly in relation to the matter of time that it is the case that in the Court of Appeal in its criminal jurisdiction in this State there are significant delays and the criminal list is such that it does take up to and sometimes more than two years to get on in relation to convictions and sentencing matters.

Your Honours, special leave should not be granted in this case because this Court is not a Court of Criminal Appeal.  The intermediate court reached the view that the verdicts were unsafe after a complete review of all the evidence and consideration of counsel submissions.  The conclusion by the court that a jury acting reasonably must have had a reasonable doubt about the respondent’s guilt was in conformity with this Court’s judgment in M v The Queen.  Complicity, in this case, was put three ways; acting in concert, extended common purpose and aiding and abetting.  The court was correct in concluding that none of these paths was made out because, first and critically, there was no evidence that the respondent knew that his co‑accused, Ho, had a gun.

BELL J:   Does that assume somewhat lesser significance in circumstances where the evidence was capable of establishing that the respondent was waving a weapon himself, threatening people at a time when demands were being made for the man, Mau, and, indeed, had inflicted an injury to at least one person before the gun was fired?

MR TEHAN:   No, your Honour, it ‑ ‑ ‑

BELL J:   Why is that not relevant to a determination or a possible determination of the understanding or arrangement that existed between the respondent and the man who did produce the gun when he produced the gun?

MR TEHAN:   If one looks at the gun cases, such as Gillard, Zappia and Johns in this Court, they are all cases where knowledge of the gun on the part of the accused in person has been established.

BELL J:   How does Johns help you?  How does Johns help in this circumstance? 

MR TEHAN:   Simply make the critical comparison with Johns that here the applicant did not know that Ho had a gun.  Now, that goes ‑ ‑ ‑

HAYNE J:   The difficulty, Mr Tehan, is, accept that to be so, that leaves the applicant as the person armed with the offensive weapon in the group that is demanding to know where Mr Mau is, the avowed purpose being to get money.

MR TEHAN:   Money for a drug debt that he knows nothing about.

HAYNE J:   The avowed purpose was to get money and the applicant is in the position, if he does not know of the arming of any of the others, where he is the man who is armed, threatening and asking for where Mau is.

MR TEHAN:   With a sword that he did not bring to the premises.  In fact, there was no evidence that he had brought the sword to the premises.  Indeed, the evidence tended to be the other way, a matter reinforced by the judge in her reasons for sentence.

BELL J:   But whether he brought the sword to the premises or picked it up and used it, it remains that it was used in a threatening way and, indeed, he had inflicted violence by a wound, I think, to the neck of one of the occupants of the premises before the gun was produced.  Now, one possible line of reasoning, when considering what was in his mind in terms of an understanding or arrangement with the shooter, was that his production of a weapon and use of the weapon in the circumstances in which it occurred pointed to his agreement that in order to collect this debt, whatever it was for, he had contemplated the use of violence, including the infliction of GBH surely?

MR TEHAN:   It could not go, in our submission– any agreement could not go past, in his case, an agreement to assault in order to find out the whereabouts of Mau.  That is as high as the evidence went in his case.  That finding was made by the Court of Appeal and clearly all the evidentiary material, in our submission, it was the correct finding.  Our learned friend says that there is no contest with matters of fact that he identifies.  That is not correct.  As we point out in our submissions, we take issue with the contention that the applicant continued to walk around with the sword asking where Mau was.  That is simply not supported by the evidence.  As we point out, the only witness who touches upon that matter is Kathleen Quach and, ultimately, in cross‑examination she conceded that she could not say what the applicant was doing. 

We also take issue with the use of the sword to cut Tien Pham on the neck and slashing Viet Tran on the knee and chin.  The injuries, which can be observed at least by way of photograph from the application book, are such that the injury to the knee is superficial, there is a scratch to the chin in relation to Viet Tran.  In relation to the other person, Tien Pham, he is seen to be saying, and we make this point in our submissions, of course, that his own movement caused a cut to the neck, and that view is reinforced by the trial judge.  Now, all of this happens before the gun is produced.  He does not know the gun was going to be produced.  There is no unity of purpose in that sense and that is why we would say that the lack of knowledge on his part about both the drug debt and the production of the gun is so important.

Now, when you add other matters – and the other key factual matters in reaching the conclusion are that the time between the production and firing of the gun was a few seconds.  The time between the first and second shots was also short.  After the first shot, no witness could ultimately say, in our submission, what the respondent was doing.  I referred to the evidence of Kathleen Quach.  He was intoxicated, giggling at one point and behaving strangely, apologising, it seems, for causing injury and the court found that the respondent’s conduct following the shootings was neutral on the issue of complicity. 

Now, they were all factual matters, none of which depended upon an assessment of the demeanour of the witnesses, but they spoke from themselves from the transcript.  This is a very different case from that of R v Hillier.  In that case, this Court found that the conclusion by majority of the Australian Capital Territory Court of Appeal that it was “impossible” that it was open to the jury to find guilt beyond reasonable doubt given “other aspects of the evidence” was erroneous.  It was so characterised because the conclusions could only be made if the significance to be given to those other aspects of the evidence was assessed separately from the rest of the evidence. 

That did not occur in this case.  I mean, there are many other criticisms one might point to in Hillier, including the fact that the Court of Appeal did not take account of Hillier himself giving evidence on oath and what one was to make of that.  Indeed, the Court acted upon scenarios disowned at trial and matters not the subject of evidence.  This was not the approach of this intermediate court.  The approach of this intermediate court was to review all of the evidence in the light of counsel’s submissions and to come to a conclusion in accordance with authority.

HAYNE J:   Where do I find in Justice Neave’s reasons her consideration of whether Mr Nguyen came into the room asking for Mr Mau? 

MR TEHAN:   Sorry, your Honour?

HAYNE J:   Where do I find in the reasons of Justice Neave her consideration of whether Mr Nguyen came into the room asking for Mr Mau?  I think I do not find it there.

MR TEHAN:  Yes, that may be right, your Honour.

HAYNE J:   Well, is that not a bit of a difficulty?

MR TEHAN:   Yes.  She is clearly aware of it because at application book 346, paragraph 61, it is stated:

Hung Manh said that Quang was waving the sword at people and asking for the whereabouts of Mau.

So there it is, at least some reference to it.  I mean, there is no disputing that he came into the room asking for the whereabouts of Mau.  Again, I mean, that was a fact that was conceded to be ‑ ‑ ‑

HAYNE J:   Can I say this.  I think a difficulty that your side has to confront is if an available view of the evidence for the jury, if an available view of the evidence for the jury, was that three men enter the room, the respondent, Mr Nguyen, soon after entering the room at least, has a sword which he is brandishing, and at or about that time is asking for Mr Mau in circumstances where the accepted fact is that they had gone to the flat to seek money ‑ ‑ ‑

MR TEHAN:   Yes, and that is it.

HAYNE J:   But then does it not follow that an available view for the jury is that the common purpose of these three men was to collect money and, at least in the mind of Mr Nguyen, to collect money if needs be by use of force involving a weapon.

MR TEHAN:   Not the use of force involving a weapon.

HAYNE J:   No, he has a weapon which he is brandishing. 

MR TEHAN:   Assault.  It was an agreement to assault.  That the Court of Appeal, we would say, was correct in saying that it could go no further than to indicate an agreement on his part to assault.  One has to take account of the reality that the injuries in this case were absolutely minor.  In relation to the first person, it was nothing more than a scratch on the chin and a very minor injury to the knee.  In relation to the other, the evidence was, and the court seemed to accept this, as did, I think, the sentencing judge, that the victim in that case may have caused the injury himself in the sense of him moving backwards as the sword was produced, and that is as far as it goes.  It does not go any further than that. 

That is why I point to cases such as McAuliffe and Johns and those other cases where you have got knowledge – the critical factor in those cases is you have got knowledge of the actual weapon which was used and when it is not there, you have got overwhelming evidence of unity of purpose.  It was quite correct, in our submission, for the court to properly find that the agreement on the part, if there was one – and that is why we say things like lack of knowledge of the drug debt, lack of knowledge of trafficking from there, lack of knowledge of the gun, no sword either before or after when he leaves the premises, they are all matters which are highly relevant to take into account.  If any agreement could be inferred, it clearly could not be an agreement to go any further than to assault, in our submission.  If the Court pleases.

HAYNE J:   Yes.  Yes, Mr Gyorffy.

MR GYORFFY:   Just two matters, your Honours.  My learned friend referred to Kathleen Quach’s evidence.  The fact that she did not know what was being done was confined to the time of the second shot, and that is clear in paragraph 9(c) of the respondent’s submissions.  So it is after the first shot.  She did not know what he was doing after that.  That is the limitation she put on it. 

The other matter is that no mention has been made by my learned friend of what the jury was to make of paragraph (t) in 2.  It was not a case of this gun just suddenly appeared.  It was a case that the gun was brought out, the magazine was revolved and there was some delay before the first shot was fired.  That is the time when the respondent was present in the lounge room where all these events occurred and it was open to the jury to infer, just as other witnesses saw that gun before it was fired, so too did he and he did nothing to dissociate himself in what was going on.

HAYNE J:   There is one matter, Mr Tehan, which you did not address and that is the question of time.  Is there anything particular that you wish to say about the question of time?

MR TEHAN:   No, your Honour.  The Crown did not have the reasons and so we do not oppose that aspect.

HAYNE J:   I thought that would be the position, but you should at least have a chance to be heard.  We are minded to refer the matter for further argument before an enlarged Bench as on appeal, but that proposal entails a corollary.  Mr Gyorffy, as your notice of appeal presently stands – see page 380 – the relief you see is remitter for rehearing.

MR GYORFFY:   Yes, your Honour.

HAYNE J:   Now, it may be that the grounds you agitate could be determined and that the matter be remitted and that would leave undetermined, or may leave undetermined, any question that was to be agitated about the sufficiency of the complicity directions.  I think we need ‑ ‑ ‑

MR GYORFFY:   Is your Honour talking about manslaughter being an option?

HAYNE J:   And the attack that appears to have been made but failed in the Court of Appeal on what was done in connection with the complicity directions.

MR GYORFFY:   Yes.

HAYNE J:   A question that may be very relevant to whether leave is granted to the Crown is whether this would be the final determination of the appellate process.  Now, that entails, I think, Mr Tehan, your being in a position on a reference in to have earlier identified whether there is a point which your side of the record says can and should be agitated, whether in this Court, or were if the case to be remitted, to the Court of Appeal in the Court of Appeal about the sufficiency of the conclusions reached in the Court of Appeal which saw those grounds relating to directions about complicity fail. 

Now, I do not ask you to offer an answer definitively now, but I think that if there is to be a reference in to an enlarged Bench, both sides have to know well in advance of argument what your side of the record says on that issue.  I am not sure whether it is properly notice of contention material; I think it probably is.  It may perhaps even be cross‑appeal, but

regardless of the procedural form that is adopted, if this case is to be referred in, as we are minded to do, your side has to decide whether there is a point which you seek to preserve as live on those grounds.

MR TEHAN:   Yes, I understand.

HAYNE J:   Are we at one about what is to happen?

MR TEHAN:   Yes, exactly, your Honour.

HAYNE J:   Mr Gyorffy, that would then mean if there were no ground about that, then it may be that this Court could be in a position to conclude it finally, I do not know. 

MR GYORFFY:   Yes, your Honour.  Does your Honour require the applicant to then put in an amended ground to cover that situation?

HAYNE J:   I do not require it, Mr Gyorffy, but it occurs to me that the applicant might wish to consider whether to do so and if it does, it should do so within, can we say, seven days?

MR GYORFFY:   Absolutely, your Honour.  It is a generous time.

HAYNE J:   That, Mr Tehan, would put you under no doubt that if the Crown is saying that if they should win the appeal, that is the end of the road and that undoubtedly clears the procedural decks, I think.

MR TEHAN:   Yes.  The final matter, your Honour – I understand all that, your Honours – is that we would seek an undertaking that the applicant pay our costs on the reference in.  Such an undertaking was sought by the Bench and given by the Crown applicant in a matter of Tang.

HAYNE J:   That was the slavery case?

MR TEHAN:   The slavery case and we would ‑ ‑ ‑

HAYNE J:   What was done in Hillier?  Do you recall?  I do not.

MR TEHAN:   I thought the special leave was heard at the same time as the ‑ ‑ ‑

HAYNE J:   There was a reference in to an enlarged Bench again.

MR TEHAN:   Yes, I am really not sure what, in fact, was done on the reference in, your Honour.  I came into that matter at the appeal stage.

HAYNE J:   There is no order for costs made in Hillier. 

MR TEHAN:   No, no order for costs.  There have been orders for costs made in cases where the Crown is an applicant and that is not irrelevant to this point.  In Shrestha and Franklin, both sentence cases, and in Kahn and Benz, both conviction cases, orders for costs were made.  We would say that there ought be an undertaking sought by the Bench and given by my friend, and to cover the special leave matter application, your Honour.

HAYNE J:   Mr Gyorffy, what do you say?

MR GYORFFY:    Well, your Honour, I was seeking an order that costs be part of the cause and effect.  I have got no instructions from the Director in relation to that, perhaps if that question is reserved to be dealt with later.

HAYNE J:   I think we have to get to a landing on it, Mr Gyorffy.

MR TEHAN:   It is an appeal against an acquittal, your Honour.

HAYNE J:   Yes.  Having regard to the fact that this is not a proceeding raising issues of the kind that were considered in Tang, we are not minded to exact an undertaking of the kind you seek, Mr Tehan.  The application for special leave to appeal will be referred for consideration by an enlarged Bench of the Court.  The applicant has leave within seven days to file and serve an amended proposed notice of appeal. 

AT 10.51 AM THE MATTER WAS CONCLUDED