R v Phoung Viet Nguyen

[2011] ACTSC 25

R v PHOUNG VIET NGUYEN
[2011] ACTSC 25 (23 February 2011)

CRIMINAL LAW – trial by judge alone – attempted murder – discharging a loaded firearm – absence of evidence as to motive and attempted murder – credibility of the complainant – meaning of discharging loaded firearm “at” another person – finding of guilt

Crimes Act 1900 (ACT), s 27(3) (d)
Supreme Court Act 1933 (ACT), s 68C

Fox v Percy [2003] 214 CLR 118
R v Marshall (1987) 49 SASR 133
R v Prasad (1979) 23 SASR 161
R v Marshall (1987) 49 SASR 133
R v Mulcahy [2010] ACTSC 98
R v McConchie [2010] ACTSC 137

The Macquarie Dictionary (2^nd ed, 1992)
The Oxford English Dictionary (2^nd ed, 1989)

No. SCC 118 of 2010

Judge:             Teague AJ
Supreme Court of the ACT

Date:              23 February 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCC 118 of 2010
AUSTRALIAN CAPITAL TERRITORY )          

THE QUEEN

v

PHOUNG VIET NGUYEN

ORDER

Judge:  Teague AJ
Date:  23 February 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. A verdict of guilty be entered in respect of Counts 1 and 3 on the indictment.

2. A verdict of not guilty be entered in respect of Count 2 on the indictment.

3.           

1. The questions asked by a jury during deliberations often reveal their curiosity about apparent gaps in the evidence, particularly as to motive.  The jury has to be told to decide the case on the evidence before them, and not to speculate. This was not a jury case, but it had its curious apparent gaps, particularly as to motive.  Before me, Thanh Tran said that, on 19 October 2009 at 28 Hillebrand Street, Page ACT, Phuong Nguyen, his friend of many years, had shot at him twice, hitting him with the second shot.  Phuong Nguyen was charged with three counts and came for trial before me. The first charge was of discharging a loaded firearm at Thanh Tran.  The second was of the attempted murder of Thanh Tran.  The third was an alternative to the second. It was, like the first, of discharging a loaded firearm at Thanh Tran. The central issue at the trial was the credibility of Thanh Tran.

   5.           

2. I am conscious of the basic requirement as to this judgment under s 68C of the Supreme Court Act 1933.  As, in final submissions, I was not called on to do so, I do not propose to set out at length, any particular directions that I would have given to a jury.  I have read the moderately detailed directions set out by Nield AJ in R v Mulcahy [2010] ACTSC 98. I endorse and adopt them as was done by Refshauge J in R v McConchie [2010] ACTSC 137.

3. At the trial, I heard oral testimony from 16 witnesses.  The key prosecution witness was naturally Thanh Tran. Three other witnesses were of particular importance.  Rebecca Weatherill and Jason Dukic resided at the home at 28 Hillebrand Street, where the shooting took place. Gay Robertson lived next door. None of the other 12 need be named. Four were forensic scientists, four were police officers, two were telephone company employees, one was a doctor who treated the laceration to the head of Thanh Tran, and the last was the cousin of Thanh Tran who acted on occasions as an interpreter. Apart from taking account of the oral testimony, I listened to tapes of telephone conversations.  Some were of “000 calls” on 19 October 2009 to which Rebecca Weatherill was a party.  Others were of intercepted conversations much later to all of which Phuong Nguyen was a party. Some conversations were with Rebecca Weatherill. Others were with an unidentified male.  Phuong Nguyen, as was his right, did not give evidence.

4. After all the evidence was before me, I asked Mr Lawton, counsel for the prosecution whether he proposed to make any submissions as to the attempted murder charge.  He said he would not do so. That was understandable, given the absence of evidence as to motive and the troubling differences in the evidence as to the circumstances of the firing of the two shots.  It is clear that I could not be satisfied that Phuong Nguyen had the intention to kill Thanh Tran.  The verdict on the second charge had to be not guilty. That left the first and third charges.  Mr Archer, for Phuong Nguyen, made submissions to me, first as to there being no case to answer on the first and third charges, second as to there being circumstances warranting a direction under R v Prasad (1979) 23 SASR 161 and, finally, on my rejection of the earlier submissions, as to the ultimate verdict. The prime focus of those submissions was that the evidence of Thanh Tran was not credible. Mr Archer made one submission not linked to the credibility of Thanh Tran. That was as to the meaning of “at” in the context of the statutory definition of the offence that is the subject of the first and third charges. I will return to those submissions.

5. Apart from the issues of whether Thanh Tran was a credible witness and whether he had been shot “at”, there were several subjects of incidental relevance. I will address them shortly after an outline of the evidence. Those subjects included: motive; the cause of the laceration to the forehead of Thanh Tran; where Thanh Tran was standing at the time of the second shot; and the nature of the firearm that fired the shot.

   10.        

6. Thanh Tran was aged 31 as at 19 October 2009.  He said that he was then living in a tent in the backyard of a house occupied by Rebecca Weatherill. On the night of 19 October, he was sleeping in the tent. Under his bed he kept a machete. On that night, Phuong Nguyen came to the tent. He had known Phuong Nguyen for about eight or nine years.  Phuong Nguyen was holding an object in his right hand, close to his waist.  Thanh Tran did not see more than the forward part of the object. That part looked like a small circle. Phuong Nguyen spoke to Thanh Tran but Thanh Tran could not recall what was said.  Thanh Tran was inside the tent and Phuong Nguyen was at the entrance.  Thanh Tran said he heard what sounded like a shot.  Phuong Nguyen ran off.   Thanh Tran was not hurt at that time.  He took the machete from under his bed. He quickly ran inside the house through the laundry doors. Once inside, he spoke with Rebecca Weatherill.  He did not ring the police.  After a short time inside he went back outside intending to go to his tent. He saw Phuong Nguyen outside.  The two men spoke in Vietnamese.  Thanh Tran could not recall what was said.  Phuong Nguyen had the same object in his hand that he had had earlier. As before, he was not holding it out at shoulder height at Thanh Tran. Rather, he held it close to his waist as he had done earlier.  The two men were facing each other.  Thanh Tran heard what sounded like another shot.  He then felt blood to his forehead. 

   12.        

7. Thanh Tran spoke of his actions from the time that he felt blood to his forehead.  He said that he went quickly inside and was attended to by Rebecca Weatherill.  He did not want her to call the police, but she did so.  He was taken by ambulance to hospital.  He spoke with police later that night. He did not give Phuong Nguyen’s name or details to the police at that time and said that he was scared about doing so. Thanh Tran said that he was unable to recall much of what he told the police in answer to their questions and accepted that he did not positively identify Phuong Nguyen to the police at first.  He was not prepared to accept that he lied to the police.  A week or so later, two police approached him and his cousin asking him to provide more information.  He then agreed to make a statement.  During the preparation of that statement, his cousin acted as a translator for him. 

8. Thanh Tran was cross-examined at considerable length as to many matters including the machete under his bed, his heroin use, and his mobile phone use. He said the machete was for tree-trimming. He accepted that he had used heroin on the day of the shooting and that he had smoked heroin in the afternoon.  At the time of the shooting, he was carrying a mobile phone.  He could not remember the number of the mobile phone.

9. The evidence of Rebecca Weatherill, Jason Dukic and Gay Robertson as to how each was alerted to the events near them was quite different. Rebecca Weatherill said that she thought she heard the noise of a car backfiring. She then saw Thanh Tran inside her house.  She spoke to him. She went with him to the laundry.  There, she heard him speaking to a man outside. She said that she heard no second noise, but then saw blood on Thanh Tran.  Jason Dukic said that he heard a noise like a firecracker, then arguing, then a similar noise at the same time as the sound of glass breaking.  Gay Robertson heard two pops, went to her windows and watched for some time as a man outside the house next door argued with one inside.  She watched as he then moved around outside.

1. After Thanh Tran was taken to hospital, and the next day, the forensic scientists did their work at 28 Hillebrand Street. They checked out the tent of Thanh Tran and the area outside and inside the laundry. After Thanh Tran named Phuong Nguyen, the police took a number of actions that included a search at the Canberra address supplied for Phuong Nguyen, where nothing of interest was found. Subsequently, Phuong Nguyen visited the Belconnen Police Station expressing a willingness to cooperate.  Shortly after making that visit, he moved back to Sydney. The police took steps to obtain records of calls to and from his mobile phone over a period before and after 19 October 2009.  Those records revealed that most calls involving the phone were made from in and around Sydney, save for two periods.  Those two periods were each of less than 24 hours.  The first was at the time of the shooting.  The second was at the time of the visit to the Belconnen Police Station.  The police also took steps to intercept certain telephone calls to and from Phuong Nguyen, which included many conversations that he had with Rebecca Weatherill.  The police also took steps to monitor international departures. When Phuong Nguyen was about to board a plane leaving for Vietnam on 11 December 2009, he was arrested.

   17.        

2. There were many subjects addressed during the course of the evidence. I propose to set out many of the questions that they gave rise to, along with some brief comments. The state of the evidence did not enable me to provide satisfying answers. That would have involved speculation, rather than the drawing of reasonable inferences. What motive was there for Phuong Nguyen to harm or threaten Thanh Tran? There was almost no evidence as to motive. What part might heroin have played? There was evidence of Thanh Tran and Rebecca Weatherill having on occasions been users of heroin. There was nothing linking Phuong Nguyen to heroin. What caused the injury to the head of Thanh Tran? Was it a bullet? Or was it a piece of glass from the shattered laundry window? There was evidence from two doctors as to the nature of the injury. There was a laceration which required stitches but there was no bony injury. There was some conflicting evidence as to the finding of glass fragments. Was Thanh Tran outside or inside the laundry door at the time of the second shot? Thanh Tran says he was outside. Aspects of the evidence of Rebecca Weatherill and Jason Dukic point to his being inside. What was the nature of the firearm from which the shots were fired? The evidence of the forensic scientists revealed only possibilities as to the nature of the firearm, including that it was home-made, but with the probability that .22 bullets were fired. There was positive evidence as to the significance of the findings of the presence of lead. That evidence was linked to conclusions as the general trajectory of the two bullets. Did the police choose to go softly on Thanh Tran as to his possession and use to keep him on side? There was evidence on that question, which was relevant to the issue as to the credibility of Thanh Tran. But it would only be speculation to try to link any impropriety to that choice.

   19.        

3. The central issue in the trial was as to the credibility of Thanh Tran.  In Fox v Percy [2003] 214 CLR 118, the High Court considered matters going to the assessment of the credibility of witnesses. At [30] and [31], Gleeson CJ, Gummow and Kirby JJ noted that there are dangers in too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses, and that judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Their Honours added that considerations such as these have encouraged judges to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events.

4. My assessment of the credibility of Thanh Tran was not straightforward.  On the one hand, I could not and do not treat him as a generally impressive and convincing witness.  However, on the key issue of his recognition of Phuong Nguyen as the person who shot at him twice, I was convinced by his evidence taken alone.  My assessment of the accuracy of that evidence was reinforced by other factors. One was that there was other evidence supportive of his evidence on that issue. I will come back to the detail of that evidence.  Another was that there was no evidence before me that could be seen to form the basis of a reasonable inference that it was any person other than Phuong Nguyen.  The only basis upon which I could reject the impressive evidence of recognition was that of “indivisibility” put to me by Mr Archer for Phuong Nguyen.  It was put, in short, that because of the other unsatisfactory aspects of the evidence of Thanh Tran, I should treat everything he said as unreliable and reject the lot, including that as to recognition.

5. Before embarking on a review of matters linked to the assessment of the evidence of Thanh Tran, I would comment briefly on my assessment of the credibility of the three other witnesses I have referred to by name. Gay Robertson, the neighbour who gave an account of what she had seen in the back yard next door, was a witness at the most believable end of the spectrum.  Jason Dukic was not far behind.  Rebecca Weatherill was very much more in the divisible category.  I could readily accept most of what she said.  I had reservations as to a number of aspects.  In that respect, my assessment of her and of Thanh Tran was substantially the same, but not for anything like the same reasons.  Rebecca Weatherill had close links to both Thanh Tran and to Phuong Nguyen going back many years. She spoke at an extraordinarily fast rate, and in a somewhat endearingly over-friendly manner, and seemed incapable of slowing down or being more solemn. There were signs that she was more guarded during the intercepted telephone conversations. Both in those conversations with Phuong Nguyen and in aspects of her evidence, there were indications of a strong feeling of loyalty towards Phuong Nguyen. I viewed in her favour that she was upfront about her having had a problem with heroin. There were some aspects of her evidence that I found puzzling.  I inferred nothing because I could not know what to infer, as to her credibility or otherwise, as to those aspects.  She had put up with Thanh Tran in a tent outside her back door for some months. She had spoken to Phuong Nguyen by telephone shortly before and after the shooting, but said she could not recall anything of what was said.  She hinted in the intercepted telephone conversations that she knew more than she wanted to mention about the shooting.

   23.        

6. I return to the key issue.  Mr Archer put to me that the recognition evidence of Thanh Tran lacked credibility, that the evidence of Thanh Tran was indivisible, that it could not be broken down into pieces, that there were instances where he could be seen to have lied, that there were other instances where what he said were implausible and that, given the number of instances of concern as to his credibility, Thanh Tran must be treated as not being a credible witness.  I turn to a number of the more significant of the instances referred to. 

7. One instance was that Thanh Tran gave oral testimony that the second shot was fired at him when he was outside.  That claim was not supported by other evidence.  Given the evidence of Rebecca Weatherill, I accept that Thanh Tran might well have been wrong.  I do not accept that he was deliberately lying.  In my assessment, it is as possible that he was confused.  Another instance was that Thanh Tran gave oral testimony that he could recall nothing of what was said in the conversations he spoke of between himself and the accused, prior to the shootings.  That is a troubling gap.  Applying the normal logic of events, one would expect there to be at least some recall of the gist of what was said, if not the detail.  Another instance was that Thanh Tran gave an implausible justification for having a machete under his bed.  I assess sceptically the explanation that it was there for use on a pine tree near the tent, although it had not yet been used on the tree.  That brings me to another instance.  For a period, Thanh Tran actively misled the police as to who had shot at him. He denied knowing the identity of the shooter.  It is appropriate that I take into account such evidence as might have had a bearing on the reasons for his evidence being credible as to some matters, but not so as to others.  Thanh Tran’s evidence as to the reason for his limited cooperation with the police was that he was scared.  Given his possession and use of heroin, he had reason to be scared, or at least, concerned about the extent to which he should cooperate with the police.  Another factor to be taken into account, in assessing matters going to credibility was that he suffered a head injury on the night. 

   26.        

8. The starting point for my conclusion that I should accept the recognition evidence of Thanh Tran was that he was very clear in his answers to questions put to him before me in examination in chief, in cross-examination and in re-examination as to Phuong Nguyen being the person who shot at him.

9. I looked for independent evidence which tended to provide additional support for the shooter having been Phuong Nguyen.  I found several instances. No one instance was impressive seen alone.  The instances were more like strands in a cable.  There was the evidence of Rebecca Weatherill as to her close association over a long period of time with each of Thanh Tran and Phuong Nguyen.  There was the evidence of Rebecca Weatherill that Thanh Tran had said to her on the night that Phuong had shot at him.  There was the evidence of Gay Robertson as to the movements of the shooter in the backyard being that of a person familiar with the clutter.  There was the evidence of what Rebecca Weatherill spoke of briefly in the “000 call” as to there having been a fallout between friends.  In the intercepted telephone conversations, there were the fudging-type discussions about the shootings.  Such vague discussions are routinely encountered in other cases in discussions about drugs.  There was the evidence from the mobile phone records that Phuong Nguyen was in Canberra on 19 October 2009 at the critical time. He was not in Sydney as he had been for weeks before and after that critical time.  I accept that such records need to be viewed with some caution.  The location of the phone cannot always be treated as the location of the owner of the usual user of the phone.  Given the evidence of Phuong Nguyen’s contact with each of Rebecca Weatherill and the Belconnen Police Station, and the absence of any evidence justifying any contrary rational inference, it is justifiable to draw the inference that the phone was with Phuong Nguyen.

   29.        

10. Mr Archer put to me that Thanh Tran had deliberately inflated his language problems, and that that factor should be seen to undermine his credibility.  That was not my assessment.  Thanh Tran did not have a good command of English.  He appeared to seek the help of the interpreter somewhat more often than seemed necessary, but not excessively so.  His answers often showed that he had trouble understanding legal terminology like “I put to you”, and “I suggest to you”.  I have also taken two other matters into account. The first is that he appeared to me to be of lower than average intelligence.  The second is that the evidence of his cousin helped me to better assess Thanh Tran’s limited capacity to understand and answer questions in English.

1. Mr Lawton put to me that I should accept as evidence of an admission of guilt against Phuong Nguyen the circumstances of his attempt to board a flight to Vietnam on 11 December 2009.  I am not prepared to do so for two reasons. The first is linked to the difficulty of determining what particular unfavourable inference as to guilt to draw. The second is that, given the time lapse, the virtual absence of any police pressure, and the purchase of a return ticket, there is a reasonable inference consistent with innocence.  He was embarking on a trip to the land of his ancestors.

2. Mr Archer raised an issue linked to the interpretation of s 27(3) (d) of the Crimes Act 1900 (ACT), which relevantly provides that a person who intentionally and unlawfully discharges any loaded arms at another person ... is guilty of an offence....    I have emphasised “at”.  His submission was in two parts.  The first was that the word should be given its ordinary meaning, which required that “at” meant “directly at”, so a firing “in the general direction” so as to scare would not suffice. The second was that I could not be satisfied on the evidence that there had been a relevant shooting “at” Thanh Tran.

3. What is the ordinary meaning of “at”? The Macquarie Dictionary (2^nd ed, 1992) is minimally helpful. It provides this definition: “a particle specifying a point occupied, attained, sought, or otherwise concerned, as in place, time, order, experience, etc, and hence used in many idiomatic phrases expressing circumstantial or relative position, degree or rate, action, manner”. The Oxford English Dictionary (2^nd ed, 1989) provides a choice of 41 meanings, with the 13^th appearing the most apposite.  The 13^th reads: ”of motion directed towards: In the direction of, towards, so as to get at; often with hostile intent, ‘against’; in to run, rush, go, have, throw, shoot, let drive, aim, etc, at.  My assessment that I should accept that “at” in this context should be treated as meaning “in the direction of” has been confirmed by what was said, albeit in the very different statutory context of “felony murder”, in R v Marshall (1987) 49 SASR 133. The court disapproved of the view that “shooting at” might be given the sense of “shooting very dangerously close to”. The preferred sense was to be found in three prior directions, one approved on appeal, in different but essentially the same terms. The shortest such direction quoted was:

   34.        Then ‘shot at’. That means shot in the direction of the constable meaning to hit him, not necessarily to kill him.

4. As to both shots fired, I am satisfied, that each was fired in the direction of Thanh Tran, and thus at him. I am so satisfied from a combination of evidence from several sources.  The first is the evidence from the forensic witnesses, as to the location, nature and extent of the damage to the side of the tent, the laundry flywire and window and the laundry wall. As to the second bullet, I also had a reconstructed trajectory, albeit with qualifications. To that evidence I have added a close examination of the photographs, and, as to the first shot, the evidence of Thanh Tran and the diagram that he drew as to locations of items within the tent.  I have no difficulty accepting that a first bullet was fired at Thanh Tran by the accused when Thanh Tran was located inside the tent, and that a second bullet was fired at Thanh Tran by the accused when Thanh Tran was located close to the laundry window. As to the matter of intent I find that there is no difficulty in inferring that Phuong Nguyen intended to shoot in the direction toward, thus at, Thanh Tran.

5. I find the accused Phuong Nguyen guilty of the first and third charges but not guilty of the second charge.

   I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Teague.

   Associate:

   Date:    23 February 2011

Counsel for the Crown:  Mr J Lawton
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the Defendant:  Mr K Archer
Solicitor for the Defendant: Legal Aid ACT
Date of hearing:  29 November 2010 
Date of judgment:  23 February 2011