R v Nguyen & Nguyen - [2005] SASC 288

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGUYEN & NGUYEN
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Vanstone and The Honourable Justice White)
29 July 2005
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS
Appeals against conviction for serious criminal trespass - whether re-examination of victim properly allowed - judge in error in leaving material elicited in re-examination as circumstantial evidence going to the question of whether the crime occurred - whether the proviso could be applied - Held (by majority) not open to apply proviso - Appeals allowed and retrial ordered.
Criminal Law Consolidation Act 1935 s 47A, s 137(2), s 170(2), referred to.
Pollitt v The Queen (1992) 174 CLR 558, discussed.
Wilde v The Queen (1988) 164 CLR 365; R v Szach (1980) 23 SASR 504; R v Lavery (No 2) (1979) 20 SASR 430; R v Firman (1989) 52 SASR 391; Reg v Blastland [1986] AC 41, considered.

R v NGUYEN & NGUYEN
[2005] SASC 288
Court of Criminal Appeal: Duggan, Vanstone and White JJ

DUGGAN J: I agree with Vanstone J’s conclusion that the evidence of the conversation between Sun Nan and Ning on about 20 August 2003 was relevant and admissible. It provided an explanation as to why Sun Nan had not mentioned Ning’s presence or his conduct during the commission of the alleged offences in the early stages of the investigation.
I also agree that the trial judge misdirected the jury when he said that the evidence could be used as circumstantial evidence to prove that an offence of the type alleged by the prosecution took place on the relevant occasion.
However, I cannot agree that this is a proper case for the application of the proviso.
According to Sun Nan, Ning admitted that he was involved in the offence and that he nominated Sun Nan as an appropriate target.
As the trial judge commented to the jury in the course of the impugned direction, leaving aside the question of identity, the question as to whether the offence took place at all was a vital issue in the case. His Honour then went on to explain that the two conversations between Sun Nan and Ning could be used as circumstantial evidence relevant to that issue.
It is true that the trial judge directed the jury that the evidence was not to be used to establish the truth of the statements made by Ning. However, this was followed by a direction that the conversation could amount to positive evidence helping to establish an important issue in the case.
In my view, the evidence of the August conversation would have achieved some prominence in the minds of the jury. It was an admission by a person present during the alleged offence that he had a role in its planning. Much of the case was concerned with the issue as to whether an incident of the nature alleged had occurred at all. Sun Nan was recalled in order to give evidence of the conversation. The prosecutor referred to the conversation in his address and put to the jury that it indicated the existence of a common criminal enterprise and that it suggested a prior arrangement to commit the offence.
Furthermore, although it appears that the evidence was admitted on the twofold basis that it re-established credit and could be used as an item of circumstantial evidence, only the latter use was referred to in the summing-up.
I acknowledge that the evidence emanated from the alleged victim whose credibility was in issue. It is not as though the evidence provided independent support for his version. However, I do not think that this reduces the significance of the misdirection. Rather it tends to underline the inappropriateness of leaving the evidence to the jury as an item of circumstantial evidence.
In Wilde v The Queen (1988) 164 CLR 365 at 372 the test for the application of the proviso was summarised by Brennan, Dawson and Toohey JJ in the following terms:
Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside.
I have taken into account the other evidence in the case against the appellants, but in my opinion the misdirection might well have affected the jury’s verdicts so as to deprive the appellants of a chance of acquittal. Accordingly, I would not apply the proviso.
I would allow the appeals, set aside the convictions and order a new trial.
VANSTONE J: These are appeals, with leave, by Phuc Xuan Nguyen (“Phuc”) and Phat Tan Nguyen (“Phat”), two brothers, against convictions recorded in the District Court for serious criminal trespass with circumstances of aggravation, contrary to s 170(2) Criminal Law Consolidation Act 1935 (“the Act”), threatening a person with a firearm, contrary to s 47A of the Act, and aggravated robbery, contrary to s 137(2) of the Act.
The prosecution case against the two appellants was that in late July 2003, along with another person, as part of a joint enterprise, they entered the residence of Sun Nan as trespassers, threatened Sun Nan with a firearm and forced him to sign a transfer of the registration papers to his motor car, which was valued at about $10,000. These events occurred in the presence of several persons who were present at Sun Nan’s house. Two witnesses selected photographs of both appellants from an array.
The defence version of events was that before midnight on 26 July 2003 Phuc saw Sun Nan’s vehicle, with Sun Nan in it, parked behind the “Max Nightclub” with a “For Sale” sign in the window. After discussion, Sun Nan entered into an agreement to sell the car to Phuc for $6,000. Sun Nan then drove Phuc to Phuc’s home in Paradise, whilst Phat drove there separately. There the appellants persuaded their father to lend them $6,000 and the purchase of the vehicle was completed then and there in a legitimate fashion. The appellant’s father gave evidence that he had indeed seen a Chinese man outside his house after midnight on the occasion when the car was obtained. Phuc then drove Sun Nan to his Hazelwood Park home and helped Sun Nan take inside possessions from the vehicle. No incident was said to have occurred.
The appeals to this Court are centred on the admission into evidence of what are said to be hearsay statements by a person not called as a witness and the directions given as to those statements. Although there is a ground asserting that the verdicts are unsafe and unsatisfactory, that is dependent on making good the argument as to the out of court statements.
The first issue that arises is whether by reason of cross-examination of Sun Nan, or because of other evidence led, the prosecutor was entitled to elicit, in re-examination of Sun Nan, evidence of a conversation between himself and one Sun Ning (“Ning”) which took place about four weeks after the offences. The passage of cross-examination which arguably gave rise to the relevant re-examination went to Sun Nan’s failure to mention in his initial police statement that one of the persons already present in the house seemed to know the gunman. That man, Ning, was in a bedroom with a man referred to as David, when the gunman ordered Sun Nan to go into it. There, he and David witnessed the gunman’s demands for the registration papers and the threats to harm Sun Nan. Indeed Ning performed an interpreting role for the gunman and they appeared to know each other. The cross-examination included this passage:
Q.When you went to the police and you ultimately told them about what happened … you didn’t tell the police that Sun Ning apparently knew the man with the gun.
A.I don’t think so, but at that time it wasn’t that clear, but I believe I did supply the information at a later stage.
Essentially this was an attack on the victim’s credit by reason of his not having mentioned Ning in his first statement to the police. The thrust of the cross-examination was that had he believed that Ning knew the name of the gunman, then not only would he have mentioned Ning’s slightly questionable activities during the offences, but he would have been sure to mention Ning’s name to the police as an avenue of investigation. The answer given by the witness indicated that whatever his state of mind initially, something happened later which had an impact on him and that he did make the assertion to the police after that event. In my view the way the answer was left gave rise to an entitlement to re-examine on all those matters. (See R v Szach (1980) 23 SASR 504; R v Lavery (No 2) (1979) 20 SASR 430.)
However, the prosecutor’s attempt to adduce that evidence drew an objection on the basis that the material sought to be elicited was a conversation between Sun Nan and Ning after the offences (and after the initial statement) which had not been touched on in cross-examination. The trial Judge upheld the objection, although he was plainly in doubt about the correctness of his ruling. As I understand it he upheld it because the evidence had not only the impact sought by the re-examination, but also tended to confirm, in a hearsay, but telling manner, that the offences had indeed occurred. Consequently the re-examination proceeded on other, but allied, topics.
The following witness was David. During his cross-examination counsel for the appellant Phuc elicited evidence to the effect that during a journey by car to the house at Hazelwood Park at a time just before the robbery was said to have taken place, Ning said to David certain things which indicated that he had some forewarning that a crime would be committed there later on that night.
Once this evidence was before the jury the main reason for denying the re-examination of Sun Nan fell away. After David’s evidence an application was made by the prosecutor to then further re-examine Sun Nan, so as to elicit the conversation which occurred between himself and Ning during the period between Sun Nan’s first and second statements to the police. The evidence he gave was as follows:
Q.You said that by 30 August it had become clear, to you, as to whether or not Sun Ning knew the gunman.
A.Yes, correct.
Q.Did it become clear, as a consequence of speaking to Sun Ning.
A.That’s right.
Q.Can you tell the ladies and gentlemen of the jury what passed between you and Sun Ning when you had that conversation.
A.Yes. On about 20 something August, I received a call from Sun Ning and he said that someone had got in touch with him and he wanted to discuss something with me and he told me that he knew the gunman and what they wanted to talk about is whether or not we can settle this between ourselves privately rather than going to the police. And he said he had the ability to have my car back and I ask him ‘Who asked the guy to come and rob my car?’. He said he didn’t know. I said I will not make any decision before I knew who was actually asking the guy to come and rob my car. Then Sun Ning said it was him. Sun Ning said it was he, himself, and I asked him ‘Why did you choose me?’. He said ‘It’s not a matter of choosing or making choices. If this were to happen again, maybe it would have been another person’ because he had seen me before and he knew I had a black Skyline car. And I said ‘Let me think about it’.
Consequently, to that point, evidence of the post crime conversation between Sun Nan and Ning was properly before the jury and went only to providing an explanation as to why Sun Nan had not initially said anything of Ning’s presence or the role he played during the offences, but had later.
However, the prosecutor then introduced the argument that the coincidence of Ning’s foreknowledge of the offence and Ning’s later telephone contact with Sun Nan offering to intervene to restore his car to him should be left to the jury as “circumstantial evidence” that it was entitled to take into account on the question of whether the offences occurred. Ultimately the trial Judge acceded to a request that he leave Ning’s out of court statements to the jury in that way.
Before this Court Counsel for the respondent described the force of the evidence in the following way in his Outline of Argument:
[I]t was circumstantial evidence of conduct which when taken with all other circumstantial evidence, in particular [conduct of Ning during the offences suggestive of Ning’s involvement and the conversation between Ning and David en route to Hazelwood Park on the evening of the offences] … permitted the jury to infer that Ning was involved with the three men that went to Sun Nan’s. This in turn would permit the jury to infer that the incident at the house did occur and that Ning was the Chinese man that [the appellant’s father] saw.
Upon the appeals Counsel argued that a number of inferences could be drawn from the content of Ning’s telephone call to Sun Nan. He said those inferences included that the offenders wished to settle the matter without police involvement, that Ning was in a position to restore Sun Nan’s car to him, and that Ning had engineered the crimes. However Counsel submitted that the evidence was not led for the purpose of the jury drawing any of those inferences; that “its relevance derived merely from the fact that a call of that character or significance was made”. He put that it would have been sufficient for these purposes had the evidence been restricted to an assertion that Ning called about the car.
Counsel relied on statements from Pollitt v The Queen (1992) 174 CLR 558 to the effect that utterances may be (verbal) acts or events. Particularly, he referred to the judgment of Dawson and Gaudron JJ at 602-605. Dawson and Gaudron JJ were in the minority in that case in terms of the admissibility of the impugned out of court statements and for that reason care is needed in evaluating the force of the general statements there made. He also relied on R v Firman (1989) 52 SASR 391, a case where evidence of phone calls to premises in which the caller repeatedly asked to buy drugs was held to be properly admitted as original evidence. It was submitted that statements by Ning in the telephone conversation were not sought to be used to prove their truth. It was said that the fact that they were made was sufficient for the prosecution’s purposes and provided original evidence.
There can be no question but that statements made by a person not called as a witness can, on occasions, amount to circumstances or verbal acts or events which are admissible as original evidence. However, as Brennan J pointed out in Pollitt (572-3) the critical matter is to identify the use to which it is sought to put such utterances; that is, the “probative relationship between the statement and the fact to be proved”.
It seems to me that the essential implication of the things Ning said to the victim during the telephone conversation was that Ning had complicity in the robbery and was in a position to restore the stolen car to the victim. I consider that the conversation, as related, had no probative value unless reliance was to be placed on the assertions made within it, express and implied. The call itself was colourless. Even proof that Ning made a call about Sun Nan’s car was colourless. Unless the statements were used as proof that he had a degree of knowledge of, and involvement in, the crimes beyond that which he could have obtained via his presence on the night, then the call could have no probative weight. However, if used assertively in this way, then the call fell to be excluded as hearsay.
The matter can be tested in this way. Suppose Ning had telephoned Sun Nan and said: I was involved with the gunman and his two companions in the robbery. That statement would plainly have been rejected as hearsay. To draw an inference to that effect by the device of treating Ning’s state of mind as the relevant fact in issue is, in my mind, to subvert the hearsay rule. Ning’s state of mind was simply not a relevant fact in issue. (See Pollitt per Brennan J at 585 and McHugh J at 620; Reg v Blastland [1986] AC 41 at 54, per Lord Bridge of Harwich).
The way in which the trial Judge left the evidence reflected both its use as re-examination and the further use sought to be made of it. His directions as to it were brief:
There is another direction I give you about another aspect of the Crown case. That concerns what Sun Nan told you Sun Ning told him between 4 August 2003 and 30 August 2003, about he, Sun Ning, being involved in what Sun Nan and others described as the visit by the three men early one morning in late July 2003.
The normal rule is what a person says outside the court, or other than in court, is not evidence of what occurred. Sun Ning did not give evidence before you. It follows that what Sun Ning is alleged to have told Sun Nan is not evidence of the fact that Sun Ning did have something to do with the alleged visit.
That evidence came before you because the fact that it occurred, if you are satisfied it did, is circumstantial evidence to which you are entitled to have regard when considering whether or not you are satisfied beyond reasonable doubt that an incident as described by Sun Nan and the other Chinese witnesses as having occurred at the house at [Hazelwood Park] that night, occurred at all.
In the same way you are entitled to have regard, as circumstantial evidence, to what you were told that Sun Ning told Liu Zhuo as they drove towards the house at [Hazelwood Park] that same night.
One vital issue in this case is as to whether the incident, as described by the Chinese witnesses and Sun Nan occurred at all. You are entitled to have regard to the two conversations to which I have just referred as circumstantial evidence going to that issue. What Sun Ning is alleged to have said to Sun Nan at some time after the incident is not evidence of the truth of what Sun Ning said, but the fact that that conversation occurred is circumstantial evidence which you may use in the way to which I have just referred.
As follows from my earlier analysis the Judge was in error in leaving the evidence as circumstantial evidence going to whether or not the crime was committed. However, for the following reasons I do not consider that this misdirection could have given rise to a miscarriage of justice. First, as I have said, the evidence was properly before the jury as having a tendency to restore the victim’s credit in relation to the failure to earlier mention Ning’s involvement. Second, the question of Ning’s involvement in the crime was very much a secondary issue compared with the principal issue of whether any crime took place. Third, although it was put by the prosecution that if Ning was involved, then he and not Sun Nan, might have been the man observed by the appellant’s father, it seems to me this was a very small point. Plainly numerous persons could have matched the very general description given by the appellants’ father of the man he briefly saw. Even if Ning was complicit in the crime, there is no particular reason to assume that it was he whom the appellant’s father observed.
Next, the matters agitated on appeal tend to give a prominence to these two strands of evidence beyond which they justified at trial. The prosecution case was an extremely strong one, being based, as it was, on the eyewitness evidence of no fewer than six young people. Two of those persons picked out photographs not only of the appellant Phuc – who on his own admission was at the Hazelwood Park premises – but also of the appellant Phat. A number of other witnesses also picked out Phat’s photograph. On the case of Phat there was no explanation for his selection. Finally, the matter of Sun Nan’s credibility was to be evaluated in the light of all the other evidence. I cannot see that his account of the subsequent conversation with Ning gave any particular force to his other evidence. If his account was possibly false then that was just another false aspect of it. This was not evidence that came from an independent source having the capacity to provide corroboration of the commission of the crime.

Accordingly, whilst I consider that the Judge misdirected the jury as to the second use of the evidence, in my view no miscarriage of justice resulted. The proviso should be applied. I would dismiss the appeals.
WHITE J: I agree with the orders proposed by Duggan J. I also agree with his reasons. There is nothing which I wish to add.