R v Nguyen; R v Nguyen
[2002] NSWSC 1254
•18 April 2002
CITATION: R v Nguyen; R v Nguyen [2002] NSWSC 1254 FILE NUMBER(S): SC 70213/00; 70069/00 HEARING DATE(S): 18/4/02 JUDGMENT DATE: 18 April 2002 PARTIES :
Regina
Quoc Toan Nguyen
Tien Duc NguyenJUDGMENT OF: O'Keefe J
COUNSEL : Crown: Ms W Robinson QC
Accused: Dr M Gumbert for Quoc Tuan Nguyen; Mr M Ramage QC for Tien Duc NguyenSOLICITORS: Crown: Manjula Sellathambu - DPP (NSW)
Accused: Mr C Jeffries (Jeffries & Associates) for Quoc Toan Nguyen, Ms Mai Pham (Mark Klees & Associates) for Tien Duc NguyenCATCHWORDS: Identification evidence - Direction as to need for care and caution - Applies to positive evidence of identification of accused, not to negative evidence of such identification - Meaning of "is to inform" LEGISLATION CITED: Evidence Act 1995, ss 3, 116, 165(1), (2) DECISION: Direction given in relation to the negative evidence of Ms Pham and Mr Loi Vo concerning the accused and in relation to the assertion made by Ms Pham concerning her identification of the person Minh withdrawn.
- THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION
- O'KEEFE J
- THURSDAY 18 APRIL 2002
70069/00 - REGINA v TIEN DUC NGUYEN70213/00 - REGINA v QUOC TOAN NGUYEN
JUDGMENT - On application to withdraw a direction
1 HIS HONOUR: At the conclusion of the summing-up in this matter, senior counsel for the accused Tien Duc Nguyen asked that I withdraw directions given to the jury in respect of certain negative evidence relating to the identity of the two assailants who attended at the premises at 26 Cook Avenue, Canley Vale in the early hours of 26 March 1999 and had there shot and killed one man and shot and wounded another. The man who was wounded, Quang Vinh Nguyen (Mr Quoc), positively identified each of the accused in the course of his evidence at the trial. Another person, Truong Khuong Pham (Mr Khuong), who gave evidence that he was present at the time of the shooting, also testified as to the identity of each of the accused.
2 The evidence of both these witnesses was subject to criticism on behalf of each accused.
3 Another witness, Mr Loi Vo, gave evidence that neither of the assailants was the same as either of the men who came to the relevant premises whilst he was there shortly before the shootings. He thus gave evidence that was negative in relation to the identification of each of the accused persons.
4 A fourth witness, Ms Toy Pham (known and referred to in the summing-up as Wendy), gave evidence that she saw two men running away from the premises after the shooting and that she had heard the voice of one of those men, whom she identified as Minh at and around the time of the shooting and subsequent thereto.
5 Her evidence was that she recognized Minh as he fled the premises but was not able to identify the other man who accompanied him. When Ms Pham was cross-examined at the committal proceedings she gave evidence that neither of the men then in the dock was the accused. Her evidence was therefore, like that of Mr Loi Vo, negative in relation to the identity of the accused. This evidence was repeated by her in cross-examination in the course of this trial.
6 I gave a direction to the jury in accordance with s 165 1(b) of the Evidence Act, 1995 (the Evidence Act) and s 116 of the Evidence Act and informed them of the special need for care and caution before accepting identification evidence. This was primarily directed towards the evidence of Mr Quang and Mr Khuong. However, I subsequently advised the jury that since the evidence of Ms Pham and Mr Loi Vo related to identification they should approach their evidence with care and caution also.
7 The submission made was that the need for care and caution, which was the subject of the direction and the advice, applied only to positive evidence of identification and not to negative evidence. As a consequence it was submitted that the warning should not have been given in respect of the evidence of Ms Pham or Mr Loi Vo although no authority was referred to and no specific provisions of the Evidence Act identified other than s 165 itself.
8 Section 165 of the Evidence Act applies to evidence of a kind that may be unreliable. This includes evidence of kinds specifically enumerated in the section. Relevantly these include "identification evidence". In respect of such evidence if there is a jury and a party so requests(as occurred this case), the judge is required to warn that the evidence may be unreliable and to inform the jury of matters that may cause it to be unreliable; and furthermore must warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
9 In a previous judgment I had to consider the impact of the words "is to", that is the compound verb used in s 165 (2) of the Act and came to the conclusion that those words were in effect imperative requiring, as a matter of law, that the judge act in accordance with the directives in the section. I adhere to that view.
10 Section 116 of the Evidence Act is concerned with trials in which there is a jury and in which a question of identification is raised. That section requires that, if identification evidence has been admitted the judge is to inform the jury that there is a need for caution before accepting identification evidence and the reasons for that need for caution both generally and in the circumstances of the case.
11 Again, in my opinion the compound verb in that section "is to" bears the imperative meaning that I have referred to earlier in this judgment and in the previous judgment to which I have adverted.
12 As indicated I declined to give the direction sought but on consideration and research in relation to the matter which I undertook overnight, it is apparent that the direction I have given needs modification.
13 Section 3 of the Evidence Act makes reference to a dictionary which is set out in Part One of the appendix to the Act. That appendix sets out the meanings to be given to various words and phrases. One of those phrases is “identification evidence”. The dictionary provides that “identification evidence” means:
- "Evidence that is ... an assertion by a person to the effect that (an accused) was present at or near a place where ... the offence for which (the accused) is being prosecuted was committed ... being an assertion that is based wholly or partly on what the person who makes the assertion saw, heard or otherwise perceived at that place and time ...".
14 This definition therefore applies only to that evidence relating to identification which is positive, namely an assertion that an accused person was present at a particular place at a relevant time. It thus applies the evidence of Mr Quang and Mr Khuong which placed each accused at the scene of the crime at the relevant time.
15 The definition does not apply to the negative evidence given by Ms Pham at the Magistrate's Court and repeated in cross-examination at this trial nor the evidence of voice identification in relation to the man Minh which was given by her. Nor does it apply to the negative evidence of Mr Loi Vo at the trial.
16 The common law also deals with evidence of identification. It deals with matters not expressly covered by ss 165 and 116 of the Evidence Act. There is authority for the proposition that the Evidence Act is not an exclusive code precluding the application of the Common Law where the express provisions of the Act do not deal with the identical subject matter. There has been no analysis of the antecedent common law in argument nor has there been time for such an analysis to be undertaken by me. However, as a matter of prudence, that is for more abundant caution, I propose to withdraw the direction given in relation to the negative evidence of Ms Pham and Mr Loi Vo concerning the accused and in relation to the assertion made by Ms Pham concerning her identification of the person Minh.
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