R v Nguyen - [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 v State of Western Australia (2008) 232 CLR 397; Winning v The Queen [2003] WASCA 245, considered.

R v NGUYEN
[2009] SASC 91
Court of Criminal Appeal: Doyle CJ, Sulan and David JJ

DOYLE CJ: I would dismiss the appeal against conviction. I agree with the reasons given by David J for so deciding. There is nothing that I wish to add.
SULAN J: I would dismiss the appeal. I agree with the reasons of David J.
DAVID J: This is an appeal against conviction.
Background
The appellant, Thanh Cong Nguyen, was tried by a jury in relation to a charge of attempted murder, contrary to s 11 and s 270A of the Criminal Law Consolidation Act 1935 (SA), and in the alternative, a charge of aggravated causing serious harm with intent to cause serious harm, contrary to s 23(1) of the Criminal Law Consolidation Act. On 19 August 2008, the appellant was found not guilty of attempted murder, but guilty of the alternative charge.
The prosecution case at trial was that Coung Quoc Pham (“the victim”) was waiting in a vehicle outside of a pharmacy when he was approached by the appellant, who shot him twice in the groin with a sawn-off shotgun, causing him extensive abdominal injuries. Also present at the pharmacy were two unidentified associates of the appellant and a friend of the victim, Phuc Hong Tran (“Hong”). The victim identified the appellant as the person who shot him. The appellant gave no evidence at trial, but in cross-examination it was clear that the defence challenged the identification of the appellant as the gunman.
I turn to the background evidence in relation to each ground of appeal.
Grounds 2 and 3 – The Potential Witness Hong
2.The Learned Trial Judge should have directed the jury that they could have taken the view that the prosecution’s failure to call Hong as a witness meant that they could infer that his evidence would not have assisted the prosecution case.
3.The Learned Trial Judge should have directed the jury that if the quality of the evidence as to the presence of the appellant at the scene of the crime was diminished by the absence of the potential witness Hong then that is a matter relevant to the question of whether the case has been proved beyond reasonable doubt.
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.
The victim gave evidence that Hong pulled his vehicle up to the side of the pharmacy and the blue wagon pulled up behind it. Before they pulled in, the victim saw the appellant walking in front of the pharmacy with another male whom he did not recognise. As soon as they pulled up, the appellant approached the victim in the blue wagon. The victim said he pointed the appellant towards Hong, who was still sitting in his white Volvo hatchback a couple of metres in front of the blue wagon. The victim then heard a vehicle taking off quickly. He looked up and Hong’s white Volvo hatchback had gone. The victim then saw the appellant standing in front of him at the passenger’s side door of the blue wagon.
As the victim and the appellant both opened the door, the victim saw the appellant pull out a gun, hold it in both hands and point it at him. The victim said he grabbed hold of the barrel of the gun and attempted to push it away. He was then shot, but continued to hold the barrel of the gun pushing it away, while the appellant held the other end. They struggled and the victim said the appellant then dragged him out of the blue wagon, still holding the gun to him. The victim said he was then shot a second time. After the first shot, the victim kept asking the appellant why he had shot him. Apart from telling the victim to release the gun, the appellant did not say anything. After the second shot, the victim attempted to stand up, but fell back to the ground. The appellant walked away from the victim, but returned to him briefly, saying something like “don’t act smart”.
As to the description of the appellant when the shooting took place, the victim was asked the following:
Q.I want to go back a step now and ask you what you remember about the descriptions of some of the people that we have talked about. First of all, Cong Nguyen, about how tall is he.
A.Probably about 170 cm.
Q.That is tall or shorter than you.
A.Just a bit under me, or the same as me.
Q.And what about his build, what is his build like.
A.I think he’s just a bit more built than I am.
Q.A bit more built than you.
A.Yes.
Q.And on that day that you saw him when you got shot, could you tell what his hair was like.
A.No.
Q.Why couldn’t you tell.
A.He had something on his head.
Q.Do you know what he had on his head.
A.I don’t remember exactly what it was.
Q.Do you recall when [sic] he was wearing.
A.For sure I remember he was wearing shorts but other than that I thought he had a jacket on but I’m not too sure.
The victim was shown two photographs (P5). He identified the person in those photographs as the appellant. He was also shown a series of photographs taken from the CCTV footage outside the pharmacy where the shooting took place (P6). In those photographs he identified a person outside of the pharmacy wearing a red hat and a white jacket with a dark stripe on its side as the appellant. The victim also identified the old blue wagon in which he was sitting outside the pharmacy, but was unable to identify another person who was standing holding onto posts.
The victim was cross-examined about his relationship with Hong. The victim said that before the shooting he and Hong were like brothers and were very close friends. He said they met and spent time together in custody when he was incarcerated in relation to an offence of robbery in company. The victim said he knew Hong had given a statement to police, but did not know its contents. The victim said he last saw Hong when Hong came to see him in hospital following the shooting. He said he had not seen Hong since.
The victim was also cross-examined about the information he gave to police when at the hospital following the shooting. During this conversation, the tape recording of which was admitted into evidence, the victim initially said he did not know the identity of the gunman. He then said he had heard the gunman was a person by the name of “Cong Tung Dung”. He was cross-examined as follows:
Q.You are going to disagree with me, but the person who did this was not Cong Nguyen, or do you accept that that’s so; it was another: Cong, Tung, Dung, someone else.
A.What are you trying to say?
Q.That it was someone other than Cong Nguyen who shot you on 13 April.
A.No, I don’t agree with you.
In re-examination the victim said that he did not initially give the appellant’s name to police because he was confused as to why it had happened, he was in pain with his injuries and he did not want to take the matter to court. He was also re‑examined as to whether the appellant had a nickname and as to the proper pronunciation of his name. In the prosecutor’s closing address it was put that “Cong Tung Dung” was, by its pronunciation, consistent with the name of the appellant.
The evidence of other witnesses at the scene of the crime
A number of people from inside and nearby the pharmacy heard the gunshots and went to assist. None of the witnesses who attended the scene of the crime were able to identify the appellant as the gunman. All of the witnesses gave similar descriptions of the gunman, namely that he was of Asian appearance, had black hair, a slim build and was approximately 165 cm tall. However, as was argued by the defence at trial, there would be countless people who would fit that general description.
Two workers from the pharmacy, Nitsa Floridis and Christine Ching, gave evidence that they saw some of the events unfold through the glass entry door to the pharmacy. Ms Ching said that the gunman was wearing a white jumper and jeans and the other man was wearing a dark t-shirt and shorts or jeans.
A woman, by the name of Lillian Marion, who lived in a house across the road from the pharmacy, gave evidence that she heard two gunshots and rushed outside. She then saw what she thought was some sort of dispute between three men. She ran across the road waving her arms and shouting, “Stop please, can somebody help”. She gave evidence that two of the men fled, one of whom was wearing a thick dark jacket. She provided first aid to the third man, the victim, who was on the ground.
Two other people who were passing the scene in a vehicle, Peter Conroy and Allene Quigley, also gave evidence that they saw what they thought was some sort of fight or dispute.
Mr Conroy said he performed a u-turn, returning towards the pharmacy, beeping the horn of his vehicle. He said he saw at least one, possibly two men, get into an old green/blue station wagon and flee the scene. Two other men fled down Alexandra Street. He lost sight of one of the men in a location where the man might have ducked down an alleyway and jumped over a fence. Mr Conroy heard a rattly bang of tin consistent with the man having jumped over a fence or roof. He could not remember what this man was wearing. He followed the other man another 50‑100 m along Alexandra Street and spoke to him briefly. After returning to the victim and discovering the incident was more serious than he first thought, Mr Conroy again pursued the man to whom he had earlier spoken on Alexandra Street along Churchill Road. Mr Conroy said the man looked genuinely scared and told him “he had nothing to do with it”. He said this man was wearing a green t-shirt and jeans. In cross-examination, Mr Conroy accepted he had not told police that he had seen anyone get into the old green/blue station wagon and flee. He agreed he could not assist police as to the number of people in that vehicle.
Ms Quigley gave evidence that she saw two men standing over the victim. As she and Mr Conroy approached, one of the men, who was wearing a black puffy jacket, ran down Alexandra Street. She heard the rattling of a gate at the same time as they lost sight of him. She also gave evidence that she and Mr Conroy saw another man, who was wearing a green t-shirt and jeans and to whom Mr Conroy spoke, on Churchill Road. She said the man told them he was scared and did not know anything. When cross‑examined on her statement to police, Ms Quigley recalled also having seen this man on Alexandra Street around the time they lost sight of the other man over the gate.
Crime scene officers examined the gate where one of the men might have fled when followed by Mr Conroy and Ms Quigley. John Lewis gave evidence that he found a fingerprint impression pointing downwards on the gate. He said he could not identify the fingerprint, but excluded it as being that of the appellant.
Ms Jasmin Dowdy gave evidence that on 13 April 2007 she was employed as an accounts clerk at Plumbtec, which is located on the corner of Churchill Road and Alexandra Street. She gave evidence that on that afternoon, when she was returning to Plumbtec after having done the company banking, she heard what she thought was a vehicle backfiring. Ms Dowdy saw two people standing on the opposite side of an old blue sedan which came around the corner and parked in front of the pharmacy. She said she continued walking into her workplace. She said that when she reached the gateway to the trade centre she heard another bang which she then thought was a gunshot. She said she turned briefly and saw two men having a scuffle, one of whom was on the ground, but she could not see what either man was wearing.
Ms Dowdy also gave evidence that two men, who were of Asian appearance and who were heading towards the pharmacy on foot before the old blue sedan had arrived, had earlier cut her off as she was entering the Plumbtec car park. One of these men was wearing a white shirt with a red symbol on the front. The other man was wearing a hat or cap and a coloured t-shirt. Ms Dowdy said she could not say whether they were the same two men she later saw scuffling in front of the pharmacy. In cross-examination, Ms Dowdy said she could not remember telling police when giving her statement that one of the men she had seen in the scuffle was one of the same men who had cut her off as she was driving into the car park.
Mr Gary Newcombe attended Plumbtec on 13 April 2007 in the course of his business. He gave evidence that he was standing on the corner of the car park and the showroom of Plumbtec when in the space of 30 seconds he heard two bangs which came from the direction of the pharmacy. Mr Newcombe said that after the first bang, which he thought was the sound of a blown tyre or vehicle backfiring, he saw four men of Asian appearance alight from an old vehicle. He said he thought one of the men, a man who was slumped on the ground, was checking the vehicle. He said another of the men was very close to that man and had his arms outstretched. He said he could not say what that man or any of the men were wearing and he did not see in which direction the old vehicle went.

The prosecution case at trial was that there were three men involved in the shooting as well as the victim. The gunman, who was wearing a white jacket, fled in the old blue wagon and his two associates, namely one wearing a green t‑shirt and another wearing a black puffy jacket, fled on foot up Alexandra Street.
The statement of the witness Hong
In his statement to police dated 1 May 2007, Hong said he met the victim when he was in custody in 2002. When he was released he gave his mobile telephone number to the victim. The victim contacted Hong some months later when he was also released from custody. In his statement Hong said they had been friends since that time and occasionally smoked heroin together.
In his statement Hong said that at the beginning of April 2007 he and his girlfriend hired a white VW Polo hatchback. A few days after hiring it, someone broke into it through the front passenger’s side window while it was standing outside the garage roller door overnight. Hong said he did not report the break-in to police and simply had the window repaired. Hong had soon realised that his mobile telephone was missing. As he could not find it in their residence or in the vehicle, he thought it had been stolen from the vehicle. He said a lot of heroin users had the number of the mobile telephone and that it may have been stolen so that the thief could supply those users with heroin.
After searching everywhere for his mobile telephone, Hong said he called the victim and asked him to come to his house. The victim obliged. Hong said the next day he and the victim went and had the vehicle’s window temporarily repaired. They had to wait another week for the correct window to be re-fitted.
To that point Hong’s statement was largely consistent with the victim’s evidence. It started to diverge, perhaps more significantly, when it came to describing the circumstances leading to, and surrounding the shooting.
In his statement Hong said that on 13 April 2007 the victim called him and told him he knew who had his mobile telephone. Hong said the victim told him to meet him at the pharmacy. He said he could not remember whether the victim told him who had his mobile telephone. He drove his white VW Polo hatchback to the pharmacy and he did not notice any other vehicles behind him.
As Hong approached the pharmacy, he slowed his vehicle down and turned onto the side street, parking on the corner near the pharmacy. He said he did not see anyone at the pharmacy and remained sitting in his vehicle, with the engine still running, waiting for the victim to arrive. Less than a minute later Hong heard someone open the front passenger’s door of his vehicle. He did not see the person approach the vehicle. He only saw the trunk of the person through the front passenger window as the door was being opened. He said he could not see the person’s head. Hong said he then saw the person pull a shortened shotgun from his waist. He then panicked, immediately put the vehicle into gear and drove away. He said he drove away with such speed that he could not see the face of person who had pulled the shotgun on him, other than a “quick flash”. He could only say that he was an Asian male. He said he could not remember the male’s attire.
About ten seconds after he left, Hong said he heard a loud bang which sounded like a gunshot. He said he called his girlfriend and asked her to attend the pharmacy and find out what had happened. Ten minutes later, she called him and told him the victim had been shot and was being taken to hospital in an ambulance. He said he went to the hospital to see the victim and the victim told him the person who shot him was named “Coung”, but he said he did not know anyone by that name.
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.
After the jury retired to consider its verdict, defence counsel raised the following in relation to this issue with the trial judge:
MR ANDERS:    …The direction given in relation to Hong Tran, because we do know that his statement cannot assist the Crown case, we know that positively, we have the benefit of that statement, we as counsel and your Honour as the judge presiding in this matter.
HIS HONOUR:    I don’t know that that is necessarily so. There may have been something said to assist the Crown case. I think it was just that Ms Telfer said that, generally speaking, she was not prepared to present this witness as a witness of credit that in the opinion of the Crown he had no reliability. I don’t think she said everything he said would be against the Crown.
MR ANDERS:    On considering the statement it is readily appellant [sic] on its face that there is no meeting before this happened. This suggestion that he tells us that Hong was on the phone, is completely without support, in fact, it is directly contradicted.
…
MR ANDERS:    We hope for a direction that given the witnesses [sic] in the Crown camp, given we have seen the statement and know it only serves to gravely undermine the version of Pham, it certainly does not assist in any way, a Jones v Dunkel type direction, you might readily infer his evidence has not assisted the Crown case and would certainly be appropriate here.
Defence counsel accepted the rarity of the direction in argument before the trial judge, but nevertheless sought the direction, relying upon the witness’ affinity with the victim, the importance of the witness’ potential evidence and the fact that it would not have assisted the prosecution. The trial judge considered that the prosecution had not breached its duty to call material witnesses by not calling the witness Hong, and ruled against the defence application for a Jones v Dunkel[1] type direction.
[1] (1959) 101 CLR 298.
Discussion in Relation to Grounds 2 and 3
The appellant now argues that the direction the trial judge gave to the jury not to speculate on the evidence that Hong might have given, if called, was inadequate. He argues that consistent with the principle in Jones v Dunkel,[2] the trial judge should have directed the jury that they were entitled to infer that the evidence of Hong, who was not called, would not have assisted the prosecution. He also argues specifically in relation to ground 3, that there should have alternatively been a direction that if the quality of the evidence was diminished by the absence of Hong as a witness, then that was relevant to whether the charge had been proved beyond reasonable doubt.
[2] Ibid.
In so arguing, the appellant points out that the High Court decision of Dyers v The Queen[3] does not stand for the proposition that a trial judge should not direct the jury that they are entitled to infer that the evidence of witnesses who were not called would not have assisted the prosecution. In their joint judgment, Gaudron and Hayne JJ said:[4]
As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.
Further, as a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those it did call as witnesses. It follows that, as a general rule, the judge should not direct the jury that they are entitled to infer that the evidence of those who were not called would not have assisted the prosecution. A direction not to speculate about what the person might have said should be given. Again, exceptions to these general rules will be rare and will arise only in cases where it is shown that the prosecution’s failure to call the person in question was in breach of the prosecution’s duty to call all material witnesses.
[Footnote omitted.]
The appellant points out that the remarks concerning a direction about an absent witness not assisting the prosecution were obiter and were not commented upon by any of the other members of the bench.
[3] [2002] HCA 45; (2002) 210 CLR 285.
[4] Dyers v The Queen [2002] HCA 45 at [5]‑[6]; (2002) 210 CLR 285 at 291.
The prosecution’s responsibility, in particular circumstances, to call persons to give evidence other than those that it did call as witnesses is well established by other authority. In R v Apostilides,[5] the High Court set out the following general propositions in relation to the prosecution’s responsibility:[6]
[5] [1984] HCA 38; (1984) 154 CLR 563.
[6] [1984] HCA 38 at [13]; (1984) 154 CLR 563 at 575.
1.The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown.
2.The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3.Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness.
4.When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor’s reasons for his decision as the prosecutor thinks it proper to divulge.
5.Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.
In relation to the prosecution’s reasons for deciding not to call a witness, the Court said:[7]
A decision whether or not to call a person whose name appears on the indictment and from whom the defence wish to lead evidence must be made with due sensitivity to the dictates of fairness towards an accused person. A refusal to call the witness will be justified only by reference to the overriding interests of justice. Such occasions are likely to be rare. The unreliability of the evidence will only suffice where there are identifiable circumstances which clearly establish it; it will not be enough that the prosecutor merely has a suspicion about the unreliability of the evidence.
In Dyers v The Queen,[8] Gaudron and Hayne JJ noted:[9]
As was held in R v Apostilides, it is for the prosecution to decide what evidence it will adduce at trial. The trial judge may, but is not obliged to, question the prosecution in order to discover its reasons for declining to call a particular person, but the trial judge is not called upon to adjudicate the sufficiency of the reasons that the prosecution offers. Only if the trial judge has made such an inquiry and has been given answers considered by the judge to be unsatisfactory, would it seem that there would be any sufficient basis for a judge to tell the jury that it would have been reasonable to expect that the prosecution would call an identified person. There would then be real questions about whether, and how, the jury should be given the information put before the judge and then a further question about what directions the jury should be given in deciding for itself whether the prosecution could reasonably have been expected to call the person. Only when those questions had been answered would further directions of the kind contemplated by Jones v Dunkel have been open and they are not questions which arise in the present matter. Nor is it necessary to consider whether some direction of this kind can be given when a party, who has called a witness, does not ask questions of that witness about a particular topic.
[Footnotes omitted.]
[7] [1984] HCA 38 at [14]; (1984) 154 CLR 563 at 576.
[8] [2002] HCA 45; (2002) 210 CLR 285.
[9] [2002] HCA 45 at [17]; (2002) 210 CLR 285 at 295.
It has been held by both the Western Australian Court of Criminal Appeal in Winning v The Queen[10] and, more recently, in this State by the Full Court of the South Australian Supreme Court in Police v Kyriacou,[11] that the remarks of Gaudron and Hayne JJ in Dyers v The Queen[12] accurately reflect the law.
[10] [2003] WASCA 245.
[11] [2009] SASC 66.
[12] [2002] HCA 45; (2002) 210 CLR 285.
In Police v Kyriacou,[13] Gray J addressed the remarks of Gaudron and Hayne JJ in Dyers v The Queen[14] as to the prosecutorial duty to call witnesses in the context of a Jones v Dunkel[15] direction as follows: [16]
It has been pointed out that this statement is no more than obiter.[17] However in my view, as a general rule it is correct. If a prosecutor does comply with his or her duty, no reason arises to give a Jones v Dunkel direction. If a prosecutor does not comply with his or her duty then, generally speaking, the opportunity to give a Jones v Dunkel direction is enlivened. Having said that, the direction should not be given without the trial judge first inquiring of the prosecutor as to why he or she has not called a witness who it is expected can give material evidence on a fact in issue.[18]
Sulan J similarly stated:[19]
I consider that the principle in Jones v Dunkel has limited application to criminal trials, and should rarely be given in respect of the prosecution’s failure to call witnesses. Insofar as its application in cases in which it is argued that the prosecution has failed to call a material witness, there are a number of factors to which a court should have regard before applying the principle.
First, the prosecution has a duty to call material witnesses. The prosecutor has a discretion as to what evidence will be adduced by the prosecution. The prosecutor, nevertheless, is under a duty to call all relevant witnesses or, if he has determined not to call a material witness, then that witness’s statement, if available, should be provided to the defence. Secondly, if no statement is available, then the identity of a potentially material witness should be provided to the defence and steps should be taken by the prosecution to make that witness available to the defence. Thirdly, it is open to defence counsel to ask the judge to make an inquiry of the prosecutor as to why the witness is not [to] be called.[20] If an explanation acceptable to the court is given, then it is not appropriate for a Jones v Dunkel direction to be given in respect of the failure of the prosecution to call that witness. In deciding whether an explanation is acceptable, the court will have regard to the prosecutor’s discretion not to call a witness who the prosecutor considers is not honest or not reliable.
I have borne these observations in mind in this case.
[13] [2009] SASC 66.
[14] [2002] HCA 45; (2002) 210 CLR 285.
[15] (1959) 101 CLR 298.
[16] Police v Kyriacou [2009] SASC 66 at [15].
[17] R v Riscuta [2003] NSWCCA 6 at [99]‑[103] per Heydon JA, with whom Hulme J and Carruthers AJ agreed.
[18] Dyers v The Queen [2002] HCA 45 at [17]; (2002) 210 CLR 285 at 295; R v Apostilides [1984] HCA 38 at [13]; (1984) 154 CLR 563 at 575.
[19] Police v Kyriacou [2009] SASC 66 at [62]‑[63].
[20] Whitehorn v The Queen (1983) 152 CLR 657 at 674‑5 per Dawson J.
As the respondent argues, the prosecution fulfilled its obligations as required by the decision of R v Apostilides,[21] and gave a clear explanation as to why the witness Hong was not called, namely that his evidence was inconsistent with the victim, other witnesses and the CCTV footage in such a way as to suggest he was positively dishonest. The decision not to call him was based on more than the prosecutor’s mere suspicion that he was unreliable. The witness was made available to the defence at trial and the evidence that the witness would have given went to issues of credit, not to the core matter of the identity of the gunman. As was said in Dyers v The Queen,[22] occasions where a Jones v Dunkel[23] direction is appropriate in a criminal trial must be rare, and this is clearly not one of them. In my view, the trial judge’s directions to the jury not to speculate on the absence of the witness were correct.
[21] [1984] HCA 38; (1984) 154 CLR 563.
[22] [2002] HCA 45; (2002) 210 CLR 285.
[23] (1959) 101 CLR 298.

Similarly, a direction as to the fact that the absence of the witness may impinge upon the prosecution’s ability to prove the case beyond reasonable doubt was not required. The trial judge directed the jury to reach its verdicts on the evidence before it and the quality they were prepared to attach to that evidence. Proper directions were given on the onus of proof and they applied to the evidence that was called. Nothing more was required.
Since the preparation of these reasons, counsel for the appellant has directed the Court to the decisions of Louizos v The Queen[24] and Mahmood v State of Western Australia.[25] In my view, both decisions confirm the remarks in Dyers v The Queen[26] that a Jones v Dunkel[27] direction should not, as a general rule, be given in a criminal trial. The Court in Mahmood v State of Western Australia also said:[28]
In the joint reasons in RPS v The Queen it was pointed out that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. Similar views were expressed by Gaudron and Hayne JJ and by Callinan J in Dyers v The Queen.
[Footnotes omitted.]
As I have earlier observed, the prosecution gave an explanation as to why the witness Hong was not called. The remarks of the Court in Mahmood v State of Western Australia[29] have no application to the circumstances of this case.
[24] [2009] NSWCCA 71.
[25] [2008] HCA 1; (2008) 232 CLR 397.
[26] [2002] HCA 45; (2002) 210 CLR 285.
[27] (1959) 101 CLR 298.
[28] [2008] HCA 1 at [27]; (2008) 232 CLR 397 at 406.
[29] [2008] HCA 1; (2008) 232 CLR 397.
I would dismiss those grounds of appeal.
Ground 5 – Trial Judge’s Failure to Admit Statement of Tien Quoc Pham
5.The Learned Trial Judge has erred in failing to admit as evidence under s 45a and s 45b of the Evidence Act the statement of Tien Quoc Pham, brother of the complainant.
5.1     The statement was crucial to the defence of case in that it tended to establish that the complainant was a member of a gang (a crucial part of the defence case).
5.2     The Learned Trial Judge could have excised [sic] or directed the jury to ignore the maker’s expressed belief that the fight in the nightclub might have been a fight between two groups.
5.3 Section 45b of the Evidence Act admits the inference of a fact or the implication of a fact and the fact that the fight was between two gangs may be implied or inferred from the asserted belief of the maker.
5.4     Given the ability of the Learned Trial Judge to give directions about the use of the statement and the use of the statement to establish further lies of the complainant, it could not be positively established that it “would be otherwise contrary to the interests of justice” to admit the document.
The defence case was that the victim had reason to lie about the identity of the gunman and persons other than the appellant had reason to be the gunman.
The statement of Tien Quoc Pham
In the statement sought to be admitted into evidence, Tien Quoc Pham said:
Coung and his friends form a crew called the “Shadow Dragons” or “SDs”. I am not a part of that crew or any other gang. I believe that the fight in the nightclub may have been a fight between the Shadow Dragons and another crew called “Team Revolution” or “TRs” and somehow I got caught up in it, probably because I’m Coung’s brother.
The evidence of the victim
The victim was cross-examined extensively about his involvement in the heroin trade and gang violence, his personal drug use, his criminal history and his interest in weaponry. The cross-examination was directed at attacking his credit.
The victim was also cross-examined about why he used his brother’s name and had several identifications on his person at the time of the shooting:
Q.What was the name you gave as being your own to, for example, ambulance officers and police at the scene.
A.My brother’s name, I think.
Q.And did you have his identification on you as well.
A.Yes, I think – I think I had his wallet that day.
Q.And what other identification did you have on your person, can you remember.
A.No.
Later in cross-examination, the victim said he also had the identifications of Benedict Cabral and Jameson Lam in his possession on the day he was shot.
The victim gave evidence that he was familiar with gang conflict as a juvenile, having been a member of a gang named Asian Pride for 11 months to one year when he was 16 years old – some seven years before. He said he was not a founding member (nor a member at all) of a gang named Shadow Dragons.
The victim was also more specifically and extensively cross-examined on the contents of the statement of Tien Quoc Pham dated 11 January 2007. He again denied being a member of the Shadow Dragons. He was aware of the incident in relation to which his brother had provided the relevant statement. He denied that the incident related to a conflict between he and his friends, who formed the Shadow Dragons, and others who formed Team Revolution. The victim said he knew both gangs and believed the incident related to a conflict between them. He said he had never seen his brother’s statement, nor did he know whether it mentioned him.
The defence closing address and the trial judge’s summing up
In relation to this issue, in his closing address to the jury, defence counsel said:
Ladies and gentlemen, there is also evidence in relation to gangs that was accepted to a very limited extent. The fact is his brother was the victim of an attempted murder only months before this. The fact is that Mr Nguyen obviously had absolutely nothing to do with that. The fact that I know a bit about it does not reflect on my client. I know a bit about it through inquiries made on his behalf, so don’t confuse the fact that I know this from anything within my client’s knowledge. In any event, in that incident I am obliged to look into these things, that is my job. In that incident he accepted that Team Revolution or a gang called Team Revolution attacked his brother. He said he had heard of the Shadow Dragons and did not accept that he and his friends formed a gang called Shadow Dragons and that was why his brother was attacked. He didn’t accept it was all started by him telling people to “stay away from the window or they would be shot”, and you will note his brother didn’t give evidence at this trial, and there is a limit to the relevance of these matters.
In any event, it’s of note also that he does have this ID from Benedict Cabral in his possession. Mr Cabral has an involvement in gang related violence which I suggested to the witness was in trial before the court this very week. The reality is there are a lot of people out there in doubt. Not people that I know or my client knows, but things we can start to explore which tells you Mr Pham may have been the target of violence from a hell of a lot of different sources. There are people out there who may well want to have done him some harm. We don’t need to prove who precisely that was but in any event it’s of some note that there is this very clear suggestion circling around.
Also in his summing up to the jury, the trial judge said:
Now while I am talking about those questions relating to credibility, I mention one other matter which Mr Anders raised, that was the lifestyle that he put to the witness Pham as he led it, and he said that that could have been a motive, or could have been the source of evidence of a motive, to carry out the attack on Pham; that is to say, it could have been somebody else who had a grudge in relation to Pham, and he mentioned those incidents which you will take into account.
In his ruling on the voir dire, the trial judge stated:
I was advised that Tien Pham was in Vietnam during the trial of the accused and that he could not be located.
I proceed on the basis that the declaration was a business record. However, I refused to admit the document in the exercise of my discretion.
One of the purposes put forward for the admission of the declaration was that it would establish that Coung Pham lied about his membership of the gang. In my view, the main reason for establishing this was the impact it would have on the credibility of the witness. I took the view that this was a collateral issue and not one which could be the subject of rebuttal evidence.
However, it was also put to me that the statements in the declarations went to a fact in issue in that, if the statement by Tien Pham proved that Coung Pham was a member of a gang, it would support the argument that there were others who had a motive to cause him harm.
In my opinion, the bare statement in the declaration that “Coung and his friends form a crew called the Shadow Dragons” and the expression of belief that the fight in the nightclub may have been a fight between the two gangs left too much open speculation. It is not known on what basis Tien Pham stated that his brother was involved in the Shadow Dragons. Furthermore, the comment about the cause of the fight does not reveal why Tien Pham formed this belief.
I concluded that it would be unsafe to direct the jury that the declaration provided a basis from which they could infer relevant facts and that it would be against the interests of justice to admit the document.
Discussion in Relation to Ground 5
The appellant argues that the relevance of the statement sought to be tendered was that if the victim was a member of a gang, it would open the possibility of others having a motive to do him harm. It was not merely a matter going to credibility. As the author of the statement could not be called, the appellant argues that he was entitled to call in aid either s 45A or s 45B of the Evidence Act 1929 (SA). I set those sections out in full:
45A—Admission of business records in evidence
(1)An apparently genuine document purporting to be a business record—
(a)     shall be admissible in evidence without further proof; and
(b)     shall be evidence of any fact stated in the record, or any fact that may be inferred from the record (whether the inference arises wholly from the matter contained in the record, or from that matter in conjunction with other evidence).
(2)A document shall not be admitted in evidence under this section if the court is of the opinion—
(a)     that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b)     that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c)     that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(3)For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document is produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(4)In this section—
business means business, occupation, trade or calling and includes the business of any governmental or local governmental body or instrumentality;
business record means—
(a)     any book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business; or
(b)     any reproduction of any such record by photographic, photostatic, lithographic or other like process.
45B—Admission of certain documents in evidence
(1)An apparently genuine document purporting to contain a statement of fact, or written, graphical or pictorial matter in which a statement of fact is implicit, or from which a statement of fact may be inferred shall, subject to this section, be admissible in evidence.
(2)A document shall not be admitted in evidence under this section where the court is not satisfied that the person by whom, or at whose direction, the document was prepared could, at the time of the preparation of the document have deposed of his own knowledge to the statement that is contained or implicit in, or may be inferred from, the contents of the document.
(3)A document shall not be admitted in evidence under this section if the court is of the opinion—
(a)     that the person by whom, or at whose direction, the document was prepared can and should be called by the party tendering the document to give evidence of the matters contained in the document; or
(b)     that the evidentiary weight of the document is slight and is outweighed by the prejudice that might result to any of the parties from the admission of the document in evidence; or
(c)     that it would be otherwise contrary to the interests of justice to admit the document in evidence.
(4)In determining whether to admit a document in evidence under this section, the Court may receive evidence by affidavit of any matter pertaining to the admission of that document in evidence.
(5)For the purpose of determining the evidentiary weight, if any, of a document admitted in evidence under this section, consideration shall be given to the source from which the document was produced, the safeguards (if any) that have been taken to ensure its accuracy, and any other relevant matters.
(6)     In this section—
document means—
(a)     any original document; or
(b)     any reproduction of an original document by photographic, photostatic or lithographic or other like process.
The appellant’s application to tender the statement of Tien Quoc Pham pursuant to the above sections faced an initial formidable hurdle. There was no proper basis for the opinion as to the victim’s membership of the gang the Shadow Dragons in the document. Also, the belief of the author of the statement that the fight may have been a fight between the Shadow Dragons and another gang Team Revolution was mere speculation. Even if the author of the document was called to give evidence, what he intended to say would not be admissible.
As a result, as the trial judge himself concluded, pursuant to s 45A(2)(c) or s 45B(3)(c) of the Evidence Act 1929, the admission of the statement would have been contrary to the interests of justice.
I would dismiss the ground of appeal.
Conclusion
I would dismiss the appeal.