R v Nguyen, Ho & Nguyen (Ruling no 5)
[2007] VSC 408
•11 September 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: | 11 September 2007 | |
CASE MAY BE CITED AS: | R v Nguyen, Ho and Nguyen (Ruling No. 3) | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 408 | Revised 31 October 2007 |
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CRIMINAL LAW – Evidence - Application for exclusion of evidence as unreliable in exercise of discretion – Where witness informed of that others were providing accounts of events to police - Whether admission of evidence unfair to accused – Whether probative value outweighed by prejudicial effect
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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:
Dang Khoa Nguyen (“Mr Khoa Nguyen”), Bill Ho and Dang Quang Nguyen (“Mr Quang Nguyen”) are being tried for the murder of Mr Hieu Luu, the attempted murder of Mr Chau Nguyen and the intentional injuring without lawful excuse of Mr Hung Nguyen.
It is alleged that the offences were committed on 8 November 2004 at a Carlton flat in the presence of a number of people. It is also alleged that the accused men came to the flat looking for one Mr Mau Duong, to obtain payment of a debt owed to Mr hoa Nguyen in relation to a drug deal. The prosecution contends that, once there, one or all of the men were enquiring as to Mau’s whereabouts.
It is conceded that, whilst they were at the flat, Mr Ho shot and killed Mr Luu and shot Mr Chau Nguyen in the head. It is alleged that Mr Quang Nguyen intentionally injured Mr Hung Nguyen by cutting him with an implement variously described as a knife, sword and machete, which he admits having in his possession at the flat.
On the ninth day of the trial, just before the eye-witness, Ms Kathleen Quach, is to be called in the prosecution case, counsel for Mr Khoa Nguyen has challenged the admission of her evidence.
Ms Quach made two statements to police on the day of the alleged offences. She did not give evidence at the committal, but testified in a Basha enquiry in a voir dire hearing on 14 and 15 November 2006.
Counsel for Mr Khoa Nguyen argues that the Court should not permit Ms Quach to give evidence of conversations involving the accused recorded in her second police statement. He contends that any such evidence would be unreliable or potentially unreliable and of limited probative value. He relies upon passages from her evidence under cross-examination in a Basha inquiry. He refers to her acknowledgment that, before she gave her account of events in her second statement, police had already told her what others had said. He argues that her subsequent account of conversations was potentially tainted or affected by the suggestions made by police as to their content and was potentially inadmissible hearsay. He asks the Court to exclude the evidence in the exercise of its discretion to do so to ensure fairness to the accused.
The application is supported by counsel for each of the other defendants. Counsel for Mr Quang Nguyen contends that it this a most exceptional situation: being one in which the witness is actually acknowledging having been told things by police which might have affected the content of her statement and, accordingly, her evidence.
Counsel for Mr Khoa Nguyen and counsel for Mr Quang Nguyen also argue that the prejudicial effect of the evidence outweighs its probative value and seek its exclusion in the exercise of the Christie discretion. They argue that the prejudicial effect of the evidence would be the risk that the jury might misuse it as evidence of propensity, notwithstanding the prosecution’s denial of any intention to lead the evidence as probative of propensity. Counsel contend that the risk of misuse of the foreshadowed evidence is so high that it could not be cured by a direction from the Court against the impermissible reasoning.
Counsel for Mr Quang Nguyen further submits that the evidence could not properly be used as retrospectant evidence which the jury could take into account in determining whether the prosecution had proved the elements of the crime alleged to have been committed by his client.
The prosecution responds that the reliability of the evidence is a matter for the jury which can assess its reliability in light of any challenges properly made under cross-examination of Ms Quach and other prosecution witnesses, including police. Counsel for the prosecution says that there is nothing remarkable about the evidence sought to be excluded. He refers to the facts considered by the Full Court in Rozenes v Beljajev.[1]
[1] [1995] 1 VR 533.
Counsel for the prosecution argues that the evidence is circumstantial evidence which could be used by the jury in relation to the proof of elements of the offences charged.
The impugned evidence
I will now turn to the impugned passages in Ms Quach’s second police statement.
She told police that, before the men entered the lounge room, they were calling out “Meow” and that, subsequently, all three were walking around asking for “Meow”. She went on to say that the man police contend is Mr Ho asked as to “Meow’s” whereabouts, as did the man whom police will allege is Mr Quang Nguyen.
Counsel for Mr Khoa Nguyen argues that Ms Quach should not be permitted to give evidence that more than one of the accused asked as to the whereabouts of the man the prosecution contends is Mr Mau Duong. He points to the inconsistency between the contents of her statement and Ms Quach’s evidence under cross-examination in the voir dire. In the voir dire she said that she first saw those three men “when they started arguing asking where Mau is”.[2] She also said that, after the shots which killed Mr Luu and hit Mr Chau Nguyen were fired, she thought that one man was drunk and was walking around asking for “that person Mau”. She also said that, before she saw a knife produced by the man the prosecution alleges is Mr Quang Nguyen, one of the men was asking as to Mau’s whereabouts.
[2]Voir dire T43 lines 7-8.
In my view, any inconsistency between Ms Quach’s police statement and her evidence in the voir dire can be addressed under cross-examination. There is no basis for limiting Ms Quach’s evidence to evidence that only one person was asking as to the whereabouts of Mr Duong. As counsel for the prosecution has pointed out, she gave evidence as to more than one of the men asking about Mau’s whereabouts at different times.
Counsel for Mr Khoa Nguyen also seeks to have excluded all evidence of statements by the accused men which he characterises as conversation taking place after the shooting. “the long hair guy”, Mr Bill Ho as “the dyed hair guy” and Mr Khoa Ngyen as “the short hair guy”. (Ms Quach said that she was an apprentice hairdresser at that time.)
It would appear that he seeks to exclude evidence reflecting the terms of the following sections of Ms Quach’s statement:
“At that stage Viet was closer to me. [Mr Quang Nguyen] was walking towards Viet. I think he was asking Viet where ‘Meow’ was.
I said to the long hair guy,
‘We don’t know anything, we’re from Springvale, it’s my first time being here.’
I heard [Mr Ho] saying.
‘Just leave them, let’s go’.
[Mr Quang Nguyen] then said,
‘Is that guy dead, I think he’s dead.’
He went up to Hieu. He bent down and put his fingers on his neck. I think he was feeling for a pulse.
He then kicked Hieu in the head with his left foot. He then said,
‘Oh he’s dead’.
[Mr Quang Nguyen] then walked around the room. He went back to Hieu about 3 or 4 times. Each time he kicked him in the head. He also put his hand on Hieu’s neck again. He then said,
‘Yeah, he’s dead.’
[Mr Quang Nguyen] then said,
‘Let’s kill all of them, because one of them is dead.’
[Mr Ho] said,
‘Don’t kill them, lets (sic) just get the 2 bodies, dump them and then we go.’
[Mr Quang Nguyen] said,
‘Later the police and shit, these are the witnesses. Let’s just kill them all so we don’t have to think of something.’
While he was saying this he was going around and pointing the knife at everybody.
[Mr Quang Nguyen] also said,
‘Don’t any one of you dare call the police or the ambulance after we leave. I will kill you’.
[Mr Ho] would repeat what [Quang Nguyen] said.
At this stage [Mr Khoa Nguyen] was at the front door. [Mr Khoa Nguyen] also had something in his hand I think it may have been a knife.
[Mr Ho] was now standing near the lounge room door. He said,
‘Let’s just go, don’t kill them let’s go.’
[Mr Quang Nguyen] said,
‘Let’s just kill them.’
The whole time he was saying this he was holding the knife.
I said,
‘Don’t please, don’t, I don’t know anyone’.
[Mr Quang Nguyen] was pointing the knife at everyone saying,
‘Remember you don’t know anything, you didn’t see anything.’
[Mr Ho] was saying the same thing.
They said,
‘If the police ask, you didn’t see anything and you don’t know anything.’
Then they all left the flat. The first out was [Mr Khoa Nguyen], followed by [Mr Ho], followed by [Mr Quang Nguyen].”
Ms Quach gave evidence that she made a statement to police at 4.20 a.m. on the morning after the shooting, which she said was not true and correct. The impugned passages are contained in a second statement which she made at 1.15 p.m. of the same day, after having been in police custody from the early hours. She said in examination-in-chief that she was “scared to tell the police everything at the start”. She confirmed the contents of her second statement.
Under cross-examination, Ms Quach said that the informant, Mr Kilpatrick, told her that he did not believe what was said in her first statement. He told her that he had been speaking to other people from the flat and that her statement was inconsistent with what they had said. She agreed that Mr Kilpatrick had told her what other people had said or what he said other people had said. She thought he mentioned that Viet said something. Her evidence in the voir dire was to the effect that she then thought that she might as well just say what she knew, as some of her friends were starting to tell the truth. So, she said, she told police what she knew.[3]
[3]Voir dire T22 lines 1-2.
Mr Kilpatrick had already told her what other people had said at that time. He had told her about what conversations had supposedly taken place in the flat. He had told her about what was supposed to have happened in the flat. She agreed with the proposition that “based on that [she] then made [her] second statement”.[4] The following cross-examination by counsel for Mr Khoa Nguyen then occurred:
[4]Voir dire T22 lines 9-10.
“I want to suggest to you that what Mr Kilpatrick told you influenced what you said, that’s right, isn’t it?”
...
“---It may have a little bit but – yes, I did say, I did tell them what I knew though. It’s not because of Kilpatrick influenced me what to say in my statement, so I said it to the best of my knowledge, and what I seen that day, yes. His influence was not that much to my statement.”
“But he made it clear to you that he expected you to say more about what happened because your first statement was in effect lies?---Yes.”
“He made that clear to you, didn’t he?---Yes.”
“You felt some pressure about that because you knew the police thought you were lying, isn’t that correct?---Yes.”
“And you wanted, firstly, to get out of the police station, didn’t you?---Yes.”
“You were frightened. It had been a very frightening night?---Yes.”[5]
[5]Voir dire T22 lines 11-30.
It was subsequently put to Ms Quach that, at the time she made her second statement, she was telling police the truth and assisting them in every way possible. She agreed that she was telling them as much as she could possibly remember about the men. She agreed that, by that stage, police had spoken to her and had told her that she had to tell the truth. She agreed when it was put to her again that she was, at that stage, telling police everything she could about those men.[6] She agreed that despite what was described as “prompting” by police who were asking questions to try and help her in relation to the men’s height, their clothing and their description, the best she could do was to be found in the contents of her second statement, because that is all she could remember.
[6]Voir dire T55 lines 16-20.
It was also put to her that she was trying to tell the truth at the time of the second statement. She agreed. She also agreed that she was remembering everything she could of what happened about 12 hours beforehand and that she was doing so when what had happened was fresh in her mind.[7] She agreed that was the best she could do. Counsel for Mr Khoa Nguyen continued the cross-examination:
[7]Voir dire T57 lines 14-18.
“When you made that second statement, had you spoken to any of your friends from the time you’d been separated back at the flat?---No.”
“You’d been kept separate the whole time?---Yes.”
“When you make that second statement, you have detailed to the police quite lengthy conversations, haven’t you?---Yes”.
“Are you saying that those conversations are matters you recall exactly, word for word?---No”.
“How is it that these words in their form come to be in this statement? Did the police suggest this conversation to you or parts of it?---Yes”.
“What parts of it did they suggest to you?---I can’t remember”.
“But certainly the police suggested to you what might have been said when you left – when these men left the flat?---Yes.[8]
…
”These conversations in your second statement, they’re quite lengthy in the statement, aren’t they?---Yes”.
“They’re not word for word what was said, are they?---Yes”.
“They’re not, are they?---No”.
“You’ve already told us on your oath that the police suggested to you parts of this conversation, that’s correct, isn’t it?---Yes”.[9]
[8]Voir dire T 57 line 23- T59 line 5.
[9]Voir dire T58 lines 24-31.
Ms Quach gave evidence about when she first saw the knife produced by Mr Quang Nguyen and that he was walking towards the TV on the other side of the room. She was then asked what was the next conversation she remembered and she said that she did not remember much. Counsel then asked:
“That’s true, when you made your statement, you didn’t remember much of the conversation, did you?---Yes”.
“You’re agreeing with me, you didn’t remember much?---No”.
“So when there’s words like ‘Where did I slash you before?’, ‘I’m really sorry’, ‘I don’t know that you guys are just friends’; you don’t remember that, do you?---No”.
“Is that something the police suggested to you?---I can’t remember”.[10]
[10]Voir dire T 60 lines 9-25.
Subsequently, Ms Quach was asked about the long conversation in her second statement which she recounted almost word for word. Counsel asked:
“Now, after those shots in your statement, the second statement, there’s a long conversation that you recount almost word for word. Those are matters that you don’t remember word for word, that’s correct, isn’t it?---I do remember a few”.
“But as those words appear in your statement, not all of those words are yours, are they?---Yes, most of them”.
“But these are parts of the conversation, I want to suggest to you, that the police suggested to you, that’s correct, isn’t it?---No”.
“After the second shot, what happens?---I think the three – I think three of them were more violent then after the second shot and one of them walked up to him, the one that died, and checked for his pulse to see if he’s still alive and they found out he’s dead”.
“What other conversation was there?---They were discussing what they should do with the body and that they should just dump it or - - -“.
“I want you to try and remember the conversation you say took place in the order it took place and exactly what was said?---One of the men just walked up and checked for his pulse and they said, ‘I think he’s not breathing’, and then the machete guy [Mr Quang Nguyen] walked up and checked to see whether it was true and he said ‘Yes, I think he’s dead’, and I think they walked over again and they kicked the body a few times”.
…
“Continue, what happens next?---Yes, that’s all I can remember”.
“That’s all you remember, and that’s all of the conversation you remember?
---Yes”.“I want to suggest to you that that’s all of the conversation you remembered when you made your second statement to the police, you didn’t remember any more than that, did you?---No”.[11]
[11]Voir dire T 66 line 31 – T 68 line 6.
Under cross-examination by counsel for Mr Ho, Ms Quach confirmed that she had been scared when she made the first statement and did not tell police everything. She was then asked what changed her mind about not being scared when a couple of hours later she made her second statement. She responded:
“Because I didn’t want to be the first person to say the truth, but since the police came back and said some of the other guys in the other interviewing rooms are starting to revealing about the truth, so, because they were questioning and trying to get me to say the truth, I did in the end. Knowing that I’m not the first person to reveal it”.
“And the police were telling you what the others had said, correct?---Yes, a little bit.”[12]
[12]Voir dire T 90 lines 18-26.
Under cross-examination by counsel for Mr Quang Nguyen in the voir dire, Ms Quach agreed with the proposition that she was trying to tell the police all she could remember when she made her second statement. The following passage of cross-examination took place:
“You weren’t trying to hold anything back?---Roughly everything I knew but, yes”.
“Was it everything you knew plus things that the police had told you?---Well, on the things, like the things they told me if I agreed or if I knew that they were true, then I’ll tell them the rest”.
“The statement that was taken, this is the second statement, it’s not the situation, is it, that you simply dictated it to the police officer?---No.”
“It came into being by virtue of the process of questioning by the police officer and your answers; is that right?---Yes.”
“By this process of question and answer, the statement developed; is that correct?---Yes.[13]
[13]Voir dire T103 line 21- T 104 line 2.
Finally, counsel for Mr Quang Nguyen asked :
“Indeed, was this the case, it was an extensive questioning process by the police as to the best description that you could give; is that right?---No”.
“You wouldn’t agree with that?---I knew in my mind, I knew more but I just gave what stands out to the police.”[14]
[14]Voir dire T 104 line 28 - T 105 line 1.
Under re-examination, counsel for the prosecution asked Ms Quach about the passage of cross-examination as to her giving an account of the conversation at the flat in her second statement :
“You were asked this question by [counsel for Mr Khoa Nguyen] … : ‘They’re not word for word what was said?’ Answer: ‘Yes’. Question: ‘They’re not, are they?’ Answer: ‘No’. That was in relation to – he was asking the question it wasn’t word for word and you said: ‘Yes, they’re not, are they?’ ‘No’. What did you mean by that? Do you follow what I’m asking?---Yeah. Well, I thought it meant like it’s not word for word what I wrote down, but I was just talking to the police officer and he put it into a sentence and wrote it down as a statement”.[15]
[15]Voir dire T 120 line 24 – T 121 line 2.
It appeared that the witness thought that the counsel for the prosecution was asking about other statements she had made in relation to her recognition of images on photoboards. He continued, with reference to the second statement:
“Would you like to have a look at that statement, if you wouldn’t mind?”.
“Whatever is easier for you, either the typed one or the - - -?---No, I think these are probably most of my words”.
“Sorry?---These are my words”.
“They are your words. Thank you”.
[Counsel for Mr Khoa Nguyen]:
“Before that she answered, ‘These are probably most of my words’”.
[Counsel for the prosecution]:
“What did you say, Ms Quach, what did you say?---Yeah, they’re my words”.[16]
[16]Voir dire T 121 line 20 – T 122 line 3.
I will first address the argument that the impugned parts of Ms Quach’s foreshadowed evidence as to the events which occurred after the shooting could not be probative of any fact in issue in relation to the complicity of Mr Quang Nguyen in the commission of the crimes of murder and attempted murder alleged against Mr Ho.
This is not a case in which the retrospectant evidence is not the only material upon which the jury could rely. This foreshadowed evidence of Mr Quang Nguyen’s behaviour after the shooting might properly be taken into account by the jury as part of the circumstantial evidence from which it might conclude that he aided and abetted or acted in concert or with a common purpose with Mr Ho. I consider it admissible as evidence which in that sense is probative of a fact in issue.
As far as the application for the exclusion of that evidence on the grounds of its unreliability is concerned, I note that it is common ground that it is only in exceptional circumstances that evidence will be withdrawn from a jury on the basis that it is unreliable.[17] In my view, those circumstances do not exist in this case. The test is whether the accused person would be deprived of a fair trial if the evidence were to be admitted.[18]
[17] Rozenes v Beljajev [1995] 1 VR 533 at 549 per Brooking McDonald and Hansen JJ.
[18] Ibid.
The reliability of Ms Quach’s evidence can and should be tested before the jury in the usual way, by cross-examination about any alleged inconsistencies between any evidence and evidence given or statements made on previous occasions. It can be put to her that her evidence is the product of police suggestion, as was done in the voir dire.
I do not consider it as obvious as is suggested that her account was not a true account of her own recollection of events she observed. Indeed, she seems to me to have resisted that suggestion under previous cross-examination in several of the passages I have quoted above.
Further, I am not persuaded that any prejudicial effect of the evidence would outweigh its probative value as evidence of the complicity of Mr Khoa Nguyen and Mr Quang Nguyen in the alleged crimes of Mr Ho. The misuse of the evidence as evidence of propensity can be addressed by the appropriate warning from the Court and it must be borne in mind that the prosecution does not seek to use it in any impermissible way.
I will allow the evidence to be admitted and refuse the applications for its exclusion.
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