R v Nguyen

Case [2009] SASC 91

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v NGUYEN

[2009] SASC 91

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice David)

8 April 2009

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - POWER OF CROWN TO CALL OR REFUSE TO CALL WITNESSES - DISCRETION OF CROWN - GENERALLY

EVIDENCE - BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE - GENERALLY - CREDIBILITY AND WEIGHT - PARTY'S FAILURE TO GIVE OR CALL EVIDENCE

Appellant appealed against conviction on charge of aggravated causing serious harm with intent to cause serious harm - prosecution decided not to call witness listed on Information because it determined witness dishonest and unreliable - decision not in breach of prosecutor’s duty to call all material witnesses - whether trial judge erred in not directing jury they were entitled to infer evidence of that absent witness would not have assisted prosecution case - whether trial judge erred in not directing jury that if quality of prosecution evidence was diminished by the absence of that witness, then that was relevant to whether prosecution had proved charge beyond reasonable doubt.

Held (dismissing the appeal):  Because decision not to call witness listed on Information was not in breach of prosecutor's duty to call material witnesses, trial judge did not err in not directing jury they were entitled to infer evidence of that absent witness would not have assisted prosecution case - trial judge gave sufficient directions on evidence and onus of proof that applied to that evidence - trial judge did not err in not providing further directions.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES

EVIDENCE - DOCUMENTARY EVIDENCE - STATUTORY PROVISIONS AS TO STATEMENTS IN DOCUMENTS WHERE DIRECT ORAL EVIDENCE ADMISSIBLE - WHERE MAKER OF STATEMENT NOT ATTENDING AS WITNESS

At trial defence challenged identification of appellant as gunman - defence case was that victim had motive to lie and others had motive to harm him - passage of statement of witness, who could not be called, sought to be admitted by defence into evidence - whether trial judge erred in rejecting admission of passage of statement into evidence.

Held (dismissing the appeal):  Even if witness could be called to give evidence, what he said in passage of statement would not be admissible - as passage of statement would not be admissible, it would have been contrary to interests of justice to admit it.

Criminal Law Consolidation Act 1935 (SA) s 11, s 23(1), s 270A; Evidence Act 1929 (SA) s 45A, s 45B, referred to.
Police v Kyriacou [2009] SASC 66; R v Apostilides (1984) 154 CLR 563, applied.
Dyers v The Queen (2002) 210 CLR 285, discussed.
Jones v Dunkel (1959) 101 CLR 298; Louizos v The Queen [2009] NSWCCA 71; Mahmood…

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R v Nguyen [2009] SASC 91
Case
[2009] SASC 91
Decision Date

CaseChat Overview and Summary

In the case of R v Nguyen, the appellant was convicted of the offence of aggravated causing serious harm with intent to cause serious harm. The appellant appealed against his conviction, arguing that the trial judge had erred in not directing the jury that they were entitled to infer that the evidence of an absent witness would not have assisted the prosecution case and that the absence of that witness was relevant to whether the prosecution had proved the charge beyond reasonable doubt. The prosecution had decided not to call a witness, Hong, listed on the Information as they determined him to be dishonest and unreliable.

The legal issues before the court were whether the trial judge erred in not directing the jury that they were entitled to infer that the evidence of the absent witness would not have assisted the prosecution case and that the absence of that witness was relevant to whether the prosecution had proved the charge beyond reasonable doubt. The court found that because the decision not to call the witness was not in breach of the prosecutor's duty to call material witnesses, the trial judge did not err in not directing the jury that they were entitled to infer that the evidence of the absent witness would not have assisted the prosecution case. The court found that the trial judge gave sufficient directions on the evidence and onus of proof that applied to that evidence and that the trial judge did not err in not providing further directions.

The court dismissed the appeal and upheld the conviction. The court found that the trial judge had given adequate directions to the jury on the evidence and onus of proof that applied to that evidence, and that the absence of the witness Hong did not affect the quality of the prosecution evidence or the jury's assessment of it. The court found that the prosecution had proved the charge of aggravated causing serious harm with intent to cause serious harm beyond reasonable doubt and that the trial judge had not erred in his directions to the jury. The conviction was upheld, and no further orders were made.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is convenient to deal with these two grounds together as they are alternative propositions in relation to directions the trial judge ought to have given about the absence of the potential witness Hong.The evidence of the victim The victim gave evidence that between the ages of approximately seven and 12 he had lived in the suburb of Mansfield Park and had known and played nearly every day with the appellant, who had then lived down the street. They conversed in both Vietnamese and English. After the victim moved to another residence in Mansfield Park, he continued to see the appellant at karate and whilst playing basketball. In his evidence-in-chief, the victim was asked the following about when he had last seen the appellant:Q.In 2007, say taking the point of April 2007, how long had it been since you saw Cong Nguyen.A.Not very long, I don’t think. Depends on – Q.Putting aside the day you were shot, where was Cong Nguyen the last time you saw him before that.A.I saw him in town in front of Myer.Q.How long before the day you got shot was that.A.Probably one month.Q.When you saw him in front of Myer, did you speak to him.A.Yes. The victim gave evidence that he had known his friend Hong for approximately six to seven years. He thought Hong knew the appellant but was not sure. He said Hong called him and told him that his mobile telephone had been stolen from his motor vehicle, a white Volvo hatchback. The victim said Hong asked him to arrange for a female to call the number of the mobile telephone to find out who had it. Instead, the victim called the number, disguised his own voice and used a false name. Upon his call being answered, the victim recognised the voice of the person on the other end as the appellant. The victim then called Hong to inform him he knew who had his mobile telephone and that the victim would attempt to retrieve it without any hassles or troubles. He said this was approximately one month before the appellant shot him. The victim said that he and Hong knew a female by the name of Jackie. He said they had seen Jackie and had a conversation with her on Hanson Road approximately two weeks before the shooting. After that conversation the victim believed that Hong’s mobile telephone was being used to supply heroin. The victim or Hong then asked Jackie to call the person who had the mobile telephone to arrange a meeting on the pretence of obtaining heroin. The victim gave evidence that he was present at Hong’s residence when Hong received a call from Jackie at approximately midday on the day of the shooting The victim said that he and Hong then got into Hong’s vehicle, at which point Hong informed the victim that Jackie had called and arranged to meet the person who had the mobile telephone. The victim gave evidence that Hong drove them to see Jackie and went inside a residence to speak to her, while he waited in Hong’s vehicle on the street. Hong then returned to the vehicle and told him they were waiting for someone else to arrive. An old blue wagon arrived approximately half an hour later and parked in the driveway of the residence. Hong then pulled his vehicle up behind the old blue wagon in the driveway. A male, whom the victim did not recognise, alighted from the blue wagon. The victim said he could not remember what the male was wearing. Hong spoke to the male in Vietnamese about his mobile telephone, and it appeared to the victim that the male was concerned and did not want to be involved. The victim said the male suggested they call the appellant and arrange for him to meet them. The victim gave evidence that he and Hong also spoke briefly to the appellant during the call. He said that Hong then asked him to travel in the blue wagon with the other male so that in the event that no one appeared at the meeting place, they could again make contact with the appellant. The victim gave evidence that the male driving the blue wagon followed Hong in his white Volvo hatchback for approximately five minutes, until they reached the pharmacy where they had arranged to meet the appellant to retrieve Hong’s mobile telephone.

Decision

Reasons for decision

It is clear from Hong’s statement to police that he was either unable or unwilling to give any evidence as to the identification of the appellant.The prosecution’s decision not to call the witness Hong On the eve of the trial, the prosecution advised the defence that it may not call the witness Hong, whose name had been listed on the Information. On the defence application for a temporary or permanent stay pending the presentation by the prosecution of the witness Hong, the prosecutor informed the court that on proofing the witness, he had said nothing inconsistent with his statement. However, on the face of Hong’s statement and the inconsistencies between it, the victim, other witnesses and the CCTV footage, the prosecutor determined that Hong was not a witness prepared to tell the truth and that she would not call him. The prosecutor indicated that she was prepared to make Hong available to the defence, but she was not prepared to call him for the prosecution. The defence argued that due to Hong’s affinity with the victim, it would be at a disadvantage in calling him. The defence pointed out that on the one hand, the statement of Hong diverged from and undermined the evidence of the victim as to the circumstances leading to and surrounding the shooting, although on the other hand, because Hong was not in a position to identify the gunman, his statement did not diverge from or undermine the victim’s evidence on that issue. The trial judge refused the application for a stay.The defence closing address as to the absence of the witness Hong In his closing address to the jury, defence counsel made the following comments:What about Hong Tran? I would suggest to you, and it may be the case that his Honour will direct you to this effect as well, that you can safely assume that in his absence his evidence would not have helped the Crown case at all. It will be a matter for his Honour as to whether he will direct you in those terms, but you might think that he is not a witness the defence could possibly have called. It is someone the defence do not know, who is like a brother to Mr Pham, someone who is deeply within the prosecution camp, someone who is in no way affiliated with Mr Thanh Cong Nguyen. How are we supposed to be presenting a witness of that order - we can’t - but his absence does not in any way affect us, I would suggest to you, because it does tend to undermine the case for the prosecution.The trial judge’s summing up At the invitation of defence counsel, in his summing up to the jury, the trial judge stated:Mr Anders has commented on the fact that the prosecution did not call certain witnesses. He said Pham could assist the police in finding Jackie and he said the prosecution did not call Hong. He placed considerable reliance on the fact that the prosecution did not call Hong. As for Hong, you might think it is inappropriate to speculate on the evidence he might have given if he had been called as a witness as you do not know what evidence he would have given.It is also inappropriate for you to speculate on what evidence might have been given if DNA tests had been carried out, or identification parades had taken place, or cigarette butts at the scene had been analysed. Once again, speculation is involved in concluding what might have been. If the quality of the evidence which is led in a case is affected by inadequate investigation, that is a matter to take into account. But you are to decide this case on the evidence which was led before you and the quality of that evidence and the quality you are prepared to attach to it in your assessment of it.

Ratio Decidendi

Legal Principle Established

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