R v Nguyen

[1999] NSWCCA 451

CITATION:	R v Nguyen [1999] NSWCCA 451
FILE NUMBER(S):	CCA 60312/98
HEARING DATE(S):	28/05/99
JUDGMENT DATE:	28 May 1999
PARTIES :	Regina v Phuoc Nguyen
JUDGMENT OF:	Ireland J at 36; Kirby J at 37; Carruthers AJ at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	97/11/0288
LOWER COURT JUDICIAL OFFICER:	Howie DCJ

COUNSEL:	S R Norrish QC (Appellant) L M B Lamprati (Crown/Respondent)
SOLICITORS:	Heenan & Co (Appellant) C K Smith (Crown/Respondent)
CATCHWORDS:	Criminal law; appeal; whether convictions unsafe and unsatisfactory.
DECISION:	Appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

CCA60312/98


IRELAND J
KIRBY J
CARRUTHERS AJ

28 May 1999

REGINA v Phouc NGUYEN

JUDGMENT

1   CARRUTHERS AJ: The appellant Phuoc Nguyen was arraigned before His Honour Judge Howie QC and a jury of twelve at the Sydney District Court on 16 February 1998 upon an indictment containing five counts. The first count (as amended) was that the appellant on or about 22 October 1996 at Cabramatta and Lansvale in this State, being in company with Phuc Thien Tran (“Tran”), Dhan Tham Pham (“Pham”), and Ngoc Huy Nguyen (“Nguyen”), and a person unknown, did rob Billianson Sou (“Sou”), of certain property, to wit, a watch, a wallet, a driver’s licence, membership cards of Medicare and two clubs, a set of keys and $30 in cash, the property of Sou, and that at the time of the robbery grievous bodily harm was inflicted upon Sou. 2 This was a count under s 98 of the Crimes Act, 1900 (the “Act”) (robbery with wounding) which specifies a maximum penalty of 25 years penal servitude. The second count was an alternative count under s 97 of the Act (robbery in company), which specifies a maximum penalty of 20 years. 3 The third count was that on or about 22 October 1996 at Warwick Farm in this State being in company with Tran, Pham, Nguyen and a person unknown, the appellant did rob Choi Heuang Lay (“Mrs Lay”), of certain property, to wit $2,200 cash, $US5, certain jewellery and a quantity of Cambodian currency, the property of the said Mrs Lay. 4 The fourth count was that on or about 22 October 1996 at Warwick Farm being in company with Tran, Pham, Nguyen and a person unknown, the appellant did rob Siew Ping Riew (“Riew), of certain property, to wit, a necklace, $340 cash, and coins to the value of $1,000, the property of the said Riew. 5 The fifth count was a further count under s 97 of the Act that on or about 22 October 1996 at Warwick Farm being in company with Tran, Pham, Nguyen and a person unknown, the appellant did rob Siew Long Lay (“Lay”), to wit, a chain, the property of the said Mr Lay. 6 The appellant pleaded not guilty to each count, and on 19 February 1998 the jury returned a verdict of guilty to counts 1, 3, 4 and 5. As there was a conviction on the first count, it was not necessary for the jury to return a verdict upon the second count. 7 On 19 March 1998 the appellant was sentenced as follows. As to count 1, a minimum term of four years six months penal servitude to commence on 4 April 1997 and to expire on 3 October 2001 with an additional term of two years six months to commence on 4 October 2001 and to expire on 3 April 2004. As to counts 3, 4 and 5, his Honour imposed a fixed term of penal servitude for three years to commence on 4 April 1997 and to expire on 3 April 2000. The sole ground of appeal is that all convictions are unsafe and unsatisfactory. The appellant has not sought leave to appeal against sentence in the event that the appeal upon conviction is dismissed. 8 The appellant was born in Vietnam on 8 July 1977 and arrived in Australia with his family in 1990. At the time of the alleged offences he was an unemployed single man of no fixed abode living in the Cabramatta area. However, at times he stayed with his sister once or twice a week at her residence, 12/11 Acacia Street, Cabramatta. He was a close friend of at least two of the alleged co-offenders and probably a close friend of three of them. The Crown case was wholly circumstantial in that there was no direct identification of the appellant as one of the participants in the four robberies and no evidence of admissions. 9 For present purposes, the Crown case may be briefly summarised as follows. At about 7.30pm on Tuesday 22 October 1996, Sou attended the St Johns Park Bowling Club, having driven there in his Toyota Hilux utility, registration number ULR-270. He conducted a business as a mobile mechanic and at about 10.30pm when his mobile telephone rang he left the club in response to a call. Whilst driving to the location specified by the caller, Sou received another telephone call on his mobile and was directed to attend at the Cambodian Temple at Bonnyrigg. Whilst stopped at traffic lights on the way to the temple a blue Suzuki Swift motor vehicle came from behind his vehicle and stopped in front of him. 10 In evidence, Sou said that there were about six or seven persons in the Suzuki. One was a non-Asian female, the remainder were young Vietnamese males. Two of the males got out of the Suzuki, one of whom was carrying a torch, and approached the utility. They then threatened Sou. The man who held the torch opened the utility door and pushed Sou over to the left-hand side of the seat. He sat next to him and the other male positioned himself in the driver’s seat. At first the utility could not be started and the man holding the torch unlocked the passenger side door and the driver of the Suzuki also got into the utility. Thus by this stage four persons were in the utility. It was then started and driven to Cabramatta Road with the Suzuki following behind. The utility was stopped at Lansvale Park and all occupants of Sou’s vehicle got out of the car. There was a demand to Sou for $20,000 and his jacket was pulled over his head so that he could not see. He was struck a number of times and was pushed to a point approximately 30 to 40 metres from his vehicle. His wallet was removed, as was his watch. He deposed that he saw a person looking through his wallet who found his driver’s licence and said, “Oh, yes, I know this address now.” This constituted the first count in the indictment. 11 Whilst being assaulted, he heard the two cars drive off and then heard them return. At that point several people who were in the Suzuki got out and joined those who had been assaulting him. When Sou heard the two vehicles drive off he was left with a person whom he described as “the man with the long hair and the original driver of the Suzuki - altogether three people.” As I understand the evidence, Mr Sou was identifying “the man with the long hair” as the man with the torch. 12 The three people whom he described as joining his group at this point included a person whom he described as “the person who drove my car”; this person being described as “young, a Vietnamese. He wear Nike shoes...about 155-160 centimetres, a male...he have a gun in his jacket pocket.” On the Crown case the man in the Nike shoes, although not identified as such by the victim, was alleged to be the appellant. Sou said that the person wearing the Nike shoes had kicked him in the face, breaking his teeth. He had also kicked him in the face breaking his nose. Sou said that he was struck with a stick by another person from the Suzuki car. 13 Sou was then taken in the Suzuki towards his home address and then, in circumstances upon which it is not necessary to dilate, he was then take to his mother-in-law’s home in Warwick Farm, his mother-in-law being Mrs Lay. Sou knocked on the door. His brother-in-law opened the door and five of the Vietnamese entered the house. The family was gathered in the lounge room and a blanket put over them. Sou heard the house being ransacked. He then heard the men leave. 14 Mrs Lay gave evidence that she was awoken on the night of 22 October 1996 by knocking on her door. A group of people then forced their way into her house. They the legs of all the family members and put a blanket over them. Mrs Lay heard the house being ransacked. The men took two rings from her finger, a bracelet, and a necklace. After the men had left Mrs Lay discovered that $2,700 in cash had been stolen from her purse as well as a quantity of old Cambodian currency. Two sons of Mrs Lay gave evidence that they were present during the robbery. They both had property stolen, that is to say a necklace, $1,000 in cash, and a chain. The robbery of Mrs Lay’s property constituted the third count and the robbery of her two sons constituted the fourth and fifth counts. 15 The young female in the Suzuki was Natasha Sarkissian. She was granted an indemnity and gave evidence on behalf of the Crown. As at the date of the alleged offences she was having an association with Pham whom she regularly met in Cabramatta. She met him on the evening in question when he was with a group of six or seven friends. She had met most of these men before, but not two of them. One of the men she had not met before was referred to as “King Kong”. The second was described by her as having long hair halfway down his shoulders. On the Crown case this was said to be the appellant. Ms Sarkissian was given some six or seven Rohypnol tablets which she immediately consumed. The group then left in the Suzuki which was owned by her. From time to time during the events of the evening she fell asleep, which was perhaps not surprising, bearing in mind her consumption of Rohypnol. 16 Her cross-examination was restricted to the following question. “Have a look at this man, here in the dock. Have you met him before?” She answered, “Not that I can remember.” In re-examination she was asked, “You were asked the question whether you had met the gentleman in the dock before.” And she answered, “I haven’t met him before.” 17 At the time of the trial the appellant had short hair, although it was common ground at the trial that, as at the date of the alleged offences, his hair extended to a point below his shoulder. During the course of the investigation, police officers showed Ms Sarkissian photographs, including one of the appellant, and she did not identify him to the investigating officers. 18 The appellant was arrested on 6 January 1997 and took part in an electronically recorded interview with police in which he denied taking part in the robberies and the assault upon Sou. Relevantly, he denied owning a pair of Nike shoes or knowing anyone who owned a blue Suzuki Swift. 19 The appellant gave evidence at the trial in which he repeated his denials of any involvement in the robberies. 20 Effectively there was no dispute at the trial that the various victims had been robbed and, in the case of Sou, assaulted. It seems to have been accepted on behalf of the appellant that if the Crown could establish beyond reasonable doubt that he was one of the robbers then he would necessarily be found guilty of all charges. Alternatively, if the Crown had not satisfied the jury beyond reasonable doubt that he was one of the robbers he would have been found not guilty of all charges. 21 It is convenient now to refer to the concatenation of circumstances upon which the Crown relied to establish the appellant’s participation in the robberies and assault beyond reasonable doubt. They may conveniently be summarised as follows. 22 There was evidence that on 23 October 1996 investigating police discovered latent fingerprints on the outside surface of the front offside of the utility. Photographs of those fingerprints are to be found in exhibit L at the trial. The prints come from the left index and middle fingerprints of the appellant. They were described as having been found on the driver’s door window surround pointing in the direction of the rear of the utility. Sou testified that he had acquired the utility about one or two months prior to the robbery. The appellant was neither a friend nor an acquaintance of his, and he had never lent him his utility. 23 In his evidence the appellant said that he could not recall ever having seen Sou’s vehicle. He said that he lived in Cabramatta and if he had touched the vehicle he could not recall it. In cross-examination he agreed that he could not account for his fingerprints being on the vehicle, except that he lived in Cabramatta and that he may at some stage or must at some stage have touched the vehicle whilst it was in Cabramatta. Learned counsel for the Crown has made the point during the course of argument before the Court that Cabramatta is a large, highly populated part of outer Sydney in which one could reasonably expect at any time a large number of motor vehicles to be present. It is significant, in this context, he submits, that the fingerprints of the appellant were found on Sou’s utility. One can of course add to that that, according to Sou’s evidence, the utility had only been acquired one or two months prior to the robbery. Learned counsel for the Crown also relies upon the position in which the fingerprints were placed on the vehicle as being, he contends, inconsistent with some inadvertent touching of the vehicle whilst it was parked in the Cabramatta area. 24 The second circumstance on which the Crown relies relates to the use of the mobile phone. Sou gave evidence that he had been asked by the robbers to telephone his mother-in-law, Mrs Lay, to facilitate the robbery of her premises. One of the robbers handed a mobile telephone to him to make the call. Sou said that the number called, twice in quick succession because of a flat battery, was that of his brother-in-law, 6007557. His brother-in-law to which he referred was Mr Lay who lived with his mother, Mrs Lay, at the home which was invaded during the course of the evening. Telephone records reveal that the number 6007557 was telephoned on 22 October 1996 at 11.53pm for six seconds and 11.55pm for 18 seconds by telephone number 04149 478077. The latter telephone number was registered to an owner who lived at 12/11 Acacia Street, Cabramatta, which it will be recalled, was the address of the appellant’s sister, which premises he regularly visited. 25 Mr Norrish QC for the appellant has made forceful submissions to the Court in relation to the Crown’s reliance upon the mobile telephone evidence and specifically focused upon the fact that there is no evidence that the appellant knew the person in whose name the mobile telephone was registered or that he had access to that telephone. The only connection between the appellant and the mobile phone is the fact that the appellant visited on a regular basis the premises 12/11 Acacia Street, Cabramatta. 26 The next circumstance relied upon by the Crown was that there was clear evidence at the trial that two of the offenders were Pham and Tran and both of these men were close friends of the appellant. 27 The Court has had the considerable benefit of most detailed submissions on behalf of the appellant, both in writing and orally. These submissions have carefully analysed what are contended to be weaknesses and inconsistencies in the Crown case. Much reliance is, of course, placed upon the inability of any Crown witnesses, particularly Ms Sarkissian, to identify the appellant as a participant in the subject robberies. It is submitted, indeed, that some of the Crown evidence is capable of negativing the appellant’s presence in the course of the robberies and his participation therein. 28 Particular reliance is made by senior counsel for the appellant upon the fact that the person whom the Crown says was the appellant as identified by Ms Sarkissian and the person who was identified as the appellant by Sou involve inconsistent descriptions. When I say identified by Ms Sarkissian and identified by Sou I mean, in this context, descriptions they have given which the Crown says fit the appellant. 29 I particularly note also the appellant’s submission that the evidence in the Crown case does not disclose that any property associated with the commission of the offences was recovered from the appellant, nor was any clothing found in the possession of the appellant which connected him in any way with the commission of the offence. There was no evidence of his ownership of a maroon jacket (of the kind said by witnesses to have been worn by one offender on the night in question) and, indeed, on one aspect of the Crown case, had been worn by the appellant, nor of ownership of Nike shoes. The appellant was subject to police surveillance in the Cabramatta area after the robberies and none of that surveillance discloses him wearing either a maroon jacket or Nike shoes. 30 The appellant’s senior counsel has also helpfully reminded us of the statements of principle found in the leading authorities relating to the unsafe and unsatisfactory ground. No criticism is made of the concise and helpful directions which the jury received from the learned trial judge. It is helpful to recall, as we were invited to do, that in Chamberlain v The Queen [No. 2] (1983-4) 153 CLR 521 at 535. Gibbs CJ and Mason J said:

“Similarly in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well-established that the jury must consider ‘the weight which is to be given to the united force of all the circumstances put together’.”

31   Gibbs CJ and Mason J were, in that passage, quoting the well-known passage from the judgment of Lord Cairns in Bellhaven v Stenton Peerage [1875] 1 AC 278 at 279.. And later, 1 AC 278 at 536. their Honours said:

“It follows from what we have said that the jury should decide whether they accepted the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt.”

32   As to the submissions which were made by senior counsel on behalf of the appellant with regard to conflicting descriptions and the like in evidence that was given by Sou and Ms Sarkissian, counsel for the Crown has pointed out that both these witnesses were subjected to fast moving experiences and, in Sou’s case, what could fairly be described as terrifying experiences. One must bear in mind also, as he points out, that Ms Sarkissian had ingested a considerable quantity of Rohypnol before she embarked upon the adventures that this night held for her. I should also add that, with regard to the final circumstance upon which the Crown relied, the point was again made that there is a large population in the Cabramatta area, which is to be borne in mind when considering the fact that the appellant was a close friend of at least two of the admitted participants in these robberies. 33   It is perfectly true, as has been put to us on behalf of the appellant, that the jury and this Court were required to look at the whole of the evidence. The great strength of the Crown case is, of course, as has been repeated on a number of occasions, the concatenation of circumstances - mobile telephone, the fingerprints, the friendship of the appellant with two of the admitted offenders - and the concatenation is in my assessment of the whole of the evidence of such probative force that it completely overwhelms the countervailing circumstances which have been brought to the attention of this Court and which were no doubt brought to the attention of the jury at the trial. 34   Having undertaken my independent examination of the evidence (as I am bound to do) and carefully considered the submissions of counsel, I am quite unable to conclude that the nature and quality of the evidence at the trial was such that, acting reasonably, the jury ought to have had a doubt as to the guilt of the appellant. As I have said, to my mind, the criticisms of the Crown case and the matters sought to be called in aid on behalf of the appellant are overwhelmed by the concatenation of circumstances relied upon by the Crown as pointing inexorably, as the jury must have held, to the guilt of the appellant. 35   I would propose therefore that the appeal be dismissed with time served pending the hearing of the appeal to count. 36   IRELAND J: I agree. 37   KIRBY J: I also agree. 38   IRELAND J: The orders of the Court will be as proposed by Justice Carruthers.