R v Nguyen, Ho & Nguyen (Ruling no 4)
[2007] VSC 407
•3 October 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1529 of 2005
| THE QUEEN |
| v |
| DANG KHOA NGUYEN, BILL HO and DANG QUANG NGUYEN |
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JUDGE: | WILLIAMS J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 3 October 2007 | |
CASE MAY BE CITED AS: | R v Nguyen, Ho and Nguyen (Ruling No. 4) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 407 | Revised 31 October 2007 |
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CRIMINAL LAW – Murder – Complicity – Applications for rulings that prosecution be prevented from putting certain factual scenarios to jury -No case submission- Alleged foreshadowed change in way case put in opening.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Pirrie with Mr R Hammill | Office of Public Prosecutions |
| For the First Defendant | Mr W Toohey | Haines & Polites |
| For the Second Defendant | Mr W Stuart | Valos Black & Associates |
| For the Third Defendant | Mr M Rochford | Michael J Gleeson & Associates |
HER HONOUR:
Mr Khoa Nguyen and Mr Quang Nguyen are being tried for the murder of Mr Hieu Trung Luu and the attempted murder of Mr Chau Nguyen. Their co‑accused Mr Bill Ho admits shooting each victim and he faces the same charges. He denies that he acted consciously, voluntarily and deliberately when he shot Mr Luu or with the relevant intent when he shot either man.
The prosecution and defence cases are closed and counsel for the prosecution will address the jury tomorrow morning.
Counsel for the prosecution has foreshadowed submissions to the jury that Mr Khoa Nguyen and Mr Quang Nguyen are each guilty of the murder of Mr Luu and the attempted murder of Mr Chau Nguyen on the bases that they acted in concert with Mr Ho or acted in accordance with a common purpose or aided and abetted him in the commission of his crimes or that they did more than one of those things.
The prosecution has foreshadowed that it will submit to the jury that the three men arrived at the Carlton flat where the alleged crimes occurred, having previously agreed that they would kill, if necessary, in order to recover a debt owed either to Mr Khoa Nguyen or Mr Ho in relation to the supply of heroin.
Counsel for the prosecution told the court that he would argue that the understanding was on foot at the time the murder was committed and that the murder was within the scope of the understanding. He contends that there is circumstantial evidence from which the jury might infer that the accused had made such an agreement before arriving at the scene. He refers to the evidence as to events before, at the time and after the shootings.
The Applications
Counsel for Mr Khoa Nguyen seeks a ruling that the prosecutor be prevented from submitting to the jury that Mr Khoa Nguyen was already party to any agreement to the alleged effect at the time he arrived at the Carlton flat where the shootings occurred. He argues that the court should make the ruling in the exercise of its general discretionary power to act to ensure a fair trial to his client. He argues that there is not a scintilla of evidence which would support such a finding.
Counsel for Mr Quang Nguyen makes a similar argument in relation to the same allegation insofar as it affects his client. He adopts the submissions made by counsel for Mr Khoa Nguyen.
The prosecution points to circumstantial evidence and responds that the applications should be rejected.
Counsel for Mr Khoa Nguyen also makes a no case submission in relation to the charge of murder against Mr Khoa Nguyen. Once again counsel for the prosecution argues that the court should reject the submission.
Counsel for Mr Quang Nguyen seeks a further ruling that the prosecution be prevented from putting to the jury that his client aided and abetted the crimes allegedly committed by Mr Ho. He relies upon what he argues is the absence of any direct evidence as to the words or behaviour of Mr Quang Nguyen at the precise times of the two shootings. He also contends that, even if circumstantial evidence could be relied upon, there is no relevant circumstantial evidence to support such a case.
As I said, the prosecution does rely upon circumstantial evidence to prove the alleged liability of Mr Khoa Nguyen and Mr Quang Nguyen. Counsel for the prosecution told the court that he would be putting to the jury that Mr Khoa Nguyen and Mr Quang Nguyen each aided and abetted Mr Ho's commission of each crime. He would submit that each man, whilst being aware that the crime in question was being committed, aided and abetted Mr Ho by doing one of the following two things described by Smith, J. in his directions to the jury in R v Lowery & King [No.2] [1972] VR 560 at 561-2: intentionally encouraging [Mr Ho] by words or [his] presence or behaviour to commit it, or intentionally conveying to him by his words or [his] presence and behaviour that [he was] assenting to or concurring in his commission of the crime.
Counsel for the prosecution argues that there is circumstantial evidence upon which the jury could lawfully convict both Mr Khoa Nguyen and Mr Quang Nguyen of each of the crimes on one of these bases.
Counsel for Mr Quang Nguyen then submits that the prosecution should not be permitted to put to the jury in its final address what he argues is a fundamentally different case from that opened to the jury. Essentially, he says that, as counsel for the prosecution made no reference to “extended common purpose”, as opposed to “common purpose”, his client has suffered some unfairness. He does concede that, if the term used encompasses the principles relating to “extended common purpose”, his submission should fail.
Relevant Evidence
It is common ground that I should approach the assessment of the evidence on the basis that all the evidence upon which the prosecution might rely in support of the subject allegations were accepted and the inferences most favourable to the prosecution reasonably open were drawn.[1] (I refer in this regard to Case Stated by DPP (No.2 of 1993) 70 A Crim R 323 (CCA) 327 and what was said by King, C.J. in that case at p.327). I do so.
[1]See: Case Stated by DPP (No 2 of 1993) 70 A Crim R 323 (CCA) 327 per King CJ.
There is evidence from the witness Mr Mau Duong that he had purchased one ounce of heroin on credit from Mr Khoa Nguyen on three separate occasions in the period of some 14 days leading up to the shooting. Each ounce cost in the vicinity of $5,000 and the agreement was that he should pay when he had sold the drug himself. He said that he gave his mobile telephone number to Mr Khoa Nguyen and was given Mr Khoa Nguyen's telephone number in turn. Mr Duong claimed to have made all arrangements in relation to the transactions in the course of telephone conversations with Mr Khoa Nguyen. He denied that he spoke to Mr Ho during these telephone conversations.
There is evidence that Mr Mau Duong arranged for the first delivery of heroin to be made to the Carlton flat where the alleged offences occurred and that it was delivered by Mr Ho.
Mr Duong says that he did not return a call from the handset using the number given to him by Mr Khoa Nguyen on one or other of the days immediately preceding the shooting. There is evidence from telephone records that calls were made between the handsets related to the numbers exchanged by Mr Khoa Nguyen and Mr Mau Duong between 27 October 2004 and the day of the alleged offences on 8 November 2004. The records list one 19 second call from the handset related to the number provided by Mr Khoa Nguyen to Mr Duong, at 6.54 on the night before the shooting. The records then show seven calls initiated by the handset relating to the number provided by Mr Khoa Nguyen, where it would appear that no connection was made between 10.35 and 10.48 p.m. on the night of the shooting. The jury might infer that Mr Khoa Nguyen was attempting to contact Mr Mau Duong on each of these occasions. It might infer that he made the attempts before Mr Khoa Nguyen left the flats in Richmond at about 12.20 a.m. early the next morning, in the company of his brother Mr Khoa Nguyen and Mr Bill Ho.
Security video surveillance footage indicates that the men left the Richmond flats (where Mr Quang Nguyen lived) approximately an hour after Mr Ho had arrived at those flats. I note that there is evidence from which it might be concluded that Mr Quang Nguyen told police after his arrest that his brother Mr Khoa Nguyen had been staying with him that night.
Video surveillance footage also shows what the jury might infer is the end of a sword, later used by Mr Quang Nguyen in the Carlton flat, protruding from his sleeve and in his hand, as he stands in the lift leaving the Richmond flats. The surveillance footage shows Mr Quang Nguyen apparently adjusting his clothing or moving so as to accommodate a sword held in his left hand. The jury might infer that Mr Khoa Nguyen was aware from his brother's movements that he had a weapon with him. This is so in the context of Mr Ho's evidence that the sword was approximately 70 centimetres long and that the three men had travelled to the Carlton flats in a car. Video surveillance footage at the Carlton flats does not show where Mr Quang Nguyen was holding the sword.
There is evidence that, when the men entered the Carlton flat, Mr Ho and Mr Quang Nguyen were enquiring as to the whereabouts of Mr Mau Duong. Mr Quang Nguyen was seen by witnesses to have produced a sword which was described as being of varying lengths, which would accommodate Mr Ho's description of it being about 70 centimetres long. There is evidence that Mr Quang Nguyen was laughing at “the whole incident”. Mr Quang Nguyen waved the sword around, asking as to Mr Duong's whereabouts. He held the sword against the neck of one of the occupants of the flat and cut two of them with it.
The first victim of the shooting, Mr Chau Nguyen, said that Mr Quang Nguyen was seated at the end of the bed in a position from which it might be inferred he saw the gun which Mr Ho said he was holding. Mr Ho said that he was fiddling with the chamber of the gun to instil fear in those in the room, so that they would reveal the whereabouts of Mr Duong. Earlier Mr Ho had been seeking Mr Duong's phone number from Mr Tien Manh Pham, who knew him and Mr Duong. Mr Ho said in the evidence that he fired the shot which hit Mr Chau Nguyen for the same purpose of extracting information about Mau Duong.
There is evidence that Mr Khoa Nguyen was seated on a stereo at the time Mr Ho had produced a gun and was about to shoot Mr Chau Nguyen. There is evidence that Mr Khoa Nguyen was laughing.
Mr Chau Nguyen said that Mr Khoa Nguyen specifically directed Mr Ho to shoot him, using the expression, "Get him off" or, "Fuck him off". He said that Mr Ho then shot him.
A neighbour says that there was an interval of up to 15 seconds between the first and the second shots. The first shot fired by Mr Ho hit Mr Chau Nguyen on the forehead, but he survived. The second hit Mr Luu in the head and killed him.
Mr Quang Nguyen approached Mr Luu, felt for his pulse, and declared that he had died. There is evidence that he went on to ask again as to Mr Duong's whereabouts afterwards. There is evidence that Mr Khoa Nguyen pulled Mr Quang Nguyen away from Mr Hung Nguyen. There is no evidence that he did anything to stop Mr Ho from shooting a second time, after firing the first shot at his direction. There is no evidence of Mr Quang Nguyen intervening or protesting in relation to the shooting.
There is evidence that the three men were still in the room at the time each of the shots was fired. There is evidence that at various points in time - including after the second shot was fired - that Mr Khoa Nguyen suggested that the men leave the flat. They did leave shortly after the second shot.
I have not attempted to canvass all the relevant evidence. In my view, there is more than a scintilla of circumstantial evidence from which the jury might infer that Mr Khoa Nguyen and Mr Quang Nguyen had agreed with Mr Ho before entering the flat that someone would be killed, if necessary, to recover the debt owed by Mr Duong. That is so, despite the absence of any direct evidence that Mr Khoa Nguyen or Mr Quang Nguyen knew that Mr Bill Ho had a gun with him before he produced it at the flat.
Conclusions
I will not make the ruling sought by counsel for Mr Khoa Nguyen or Mr Quang Nguyen in relation to the prosecution address.
I am also of the view that there is evidence upon which Mr Khoa Nguyen could lawfully be convicted of the offence of murder of Mr Luu. I take into account the not unusual absence of direct evidence of the necessary intent that Mr Luu be shot with the intention that he be killed or that really serious injury be inflicted upon him.
This is a circumstantial case and the circumstantial evidence of all the events that night is capable, in my view, of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and is capable of “causing a reasonable mind to exclude any competing hypotheses as unreasonable”, (and I refer again to Case Stated by the DPP (No 2 of 1993) (1993) 70 A Crim R 323).
In my view even if the jury were not to be satisfied that the alleged agreement between Mr Khoa Nguyen and Mr Ho had been made before the men entered the flat, it could take the view that such an agreement, arrangement or understanding arose immediately before the two incidents of shooting took place.
Further, I also consider that there is evidence upon which the jury could be satisfied beyond reasonable doubt that Mr Khoa Nguyen is guilty of the murder on the basis of the principle of extended common purpose (in that he contemplated the possibility of Hieu Luu being murdered) and, or on the basis, that he aided and abetted the commission of that crime by Mr Ho in the ways alleged. I reject the no case submission.
I also reject the applications made by counsel for Mr Quang Nguyen for a ruling based upon the proposition that there is no evidence from which a jury could infer that Mr Quang Nguyen intentionally encouraged the commission of the crimes by Mr Ho, or intentionally conveyed to Mr Ho his assent or concurrence in relation to each crime.
Whilst again, there may be no direct evidence as to what Mr Quang Nguyen was saying or doing at the precise moment each shot was fired, there is circumstantial evidence, as to what he was saying or doing beforehand and afterwards, from which the jury might draw an inference in relation to those matters of fact.
I am, finally, not persuaded that there is any foreshadowed departure by the prosecution from the way in which it put its case in opening. The issue as to what was meant by the expression “common purpose” was raised during the trial, and the possibility that the prosecution was referring to the notion of extended common purpose canvassed. It is apparent from the authorities that there is some overlap between the meanings of the various terms used to describe the bases of liability on the grounds of complicity, (and I refer in this regard to Tilmouth Australian Criminal Trial Directions Butterworths (2005) [2-700] at 2‑700 and R v Tangye [1997] 92 A Crim R 545 at 556 per Hunt CJ at CL).
Counsel for Mr Quang Nguyen did not point to any alleged unfairness resulting from any misunderstanding on his part. Suffice it to say that I am not satisfied that any unfairness has resulted to Mr Quang Nguyen in the defence of the charges brought against him if the prosecution addresses the jury in the foreshadowed terms.
I will not rule that the prosecution be prevented from addressing the jury on the basis of extended common purpose.
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