R v Tran & to - [2006] SASC 276

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRAN & TO
[2006] SASC 276
Judgment of The Court of Criminal Appeal
(The Honourable Justice Duggan, The Honourable Justice Sulan and The Honourable Justice David)
8 September 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - PARTICULAR MATTERS - CONTROL OF PROCEEDINGS - DISCHARGE OF JURY
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - UNSWORN STATEMENTS AND COMMENT ON FAILURE TO GIVE SWORN EVIDENCE - COMMENT - BY OTHERS
Appellants convicted of murder by jury - victim was Tran's father-in-law - prosecution case alleged appellants were parties to a joint enterprise to kill the victim with Tran enlisting To to assist in the murder - alleged motive was victim's discovery of Tran's fraudulent activities whilst employed in victim's business - prosecution case alleged both appellants went to victim's house and stabbed him to death in his study - appeal by Tran against conviction - where Tran did not give evidence at trial but To did - where effect of To's evidence was that Tran had asked him to assist in the murder but he declined to do so - where To admitted to being inside the victim's house at the time of the murder but denied he had any role in the killing of the victim - where counsel for To made several comments in closing address regarding Tran's silence at trial - comments criticised Tran for not giving explanations about matters within his knowledge - where application by counsel for Tran for discharge of jury because of comments - application refused by trial judge - where trial judge subsequently directed jury appropriately as to Tran's right to silence - whether miscarriage of justice by reason of comments causing prejudice to Tran which could not be cured by direction to jury - discussion of counsel's right to comment on failure of co-accused to give evidence and extent to which such comment is permissible - discussion of trial judge's role in such a situation - found, comments in this case did not convey to jury that they could infer guilt simply by reason of Tran's silence - trial judge gave appropriate warnings against such reasoning in any event - Held: appeal dismissed.
Criminal Evidence Act 1898 (UK) s 1; Evidence Act 1929 s 18; Evidence Act 1995 (Cth) s 20, referred to.
Weissensteiner v The Queen (1993) 178 CLR 217; R v Wickham (1971) 55 Cr App R 199, applied.
Shevlin v HM Advocate (2002 SLT 239, discussed.
R v Crawford (1995) 96 CCC (3d) 481; Stuart v The Queen (1959) 101 CLR 1, considered.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - PARTICULAR MATTERS - CONTROL OF PROCEEDINGS - SEPARATE TRIALS AND ELECTION
Application for seperate trial by Tran - where much of the evidence the prosecution proposed to call was admissible against both appellants - where letter written by To to Tran admitted into evidence - letter ruled admissible only against To - letter contained statements implying that To was threatening to inform the authorities of Tran's involvement in the murder - counsel for Tran argued for seperate trial on basis of potential prejudice of the letter - trial judge ruled any prejudice could be remedied by appropriate directions to jury - whether miscarriage of justice by trial judge refusing application for separate trials - where To gave evidence implicating Tran in any event - found, effect of To's evidence was to remove most of the prejudicial effect which letter may have had - any prejudice arising from circumstances in which letter was written and fact that it was available for jury to peruse could be cured by appropriate directions - trial judge gave these directions - no miscarriage of justice on this ground - Held: appeal dismissed.
R v Collie (1991) 56 SASR 302; R v Harbach (1973) 6 SASR 427, applied.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - OTHER IRREGULARITIES
Where counsel for To made comments in closing address regarding evidence called by prosecution relating to Tran’s fraudulent behaviour, gambling problem and lies – comments drew attention to Tran’s motive in contrast with To’s lack of motive – whether comments led jury to impermissibly reason that Tran was the sort of person who might commit murder because of his lies and fraudulent conduct - trial judge gave appropriate directions to jury as to permissible and impermissible use of evidence – found, counsel’s comments would not have led jury to reason impermissibly in any event – where counsel for To made references in closing address to fact that Tran’s wife not called to give evidence – whether comments invited jury to reason in the manner referred to in Jones v Dunkel – found, comments did not suggest that failure of Tran to call his wife could lead to an inference that her evidence would not have assisted him – trial judge warned jury against such speculation in any event – Held: appeal dismissed.
Dyers v The Queen (2002) 210 CLR 285; Jones v Dunkel (1959) 101 CLR 298, discussed.

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - PRACTICE AND PROCEDURE - SENTENCING
Appeal against sentence by To – sentenced to imprisonment for life with a non-parole period of 26 years – whether sentencing judge erred in finding that To inflicted the fatal injuries to the victim – found, such a finding was open in determining basis for sentencing – whether sentencing judge, in determining basis for sentencing, erred in finding there was no difference in culpability of Tran and To – where case left to jury on alternative bases of joint enterprise and aiding and abetting – where sentencing judge found beyond reasonable doubt that murder committed as part of a joint enterprise – found, sentencing judge’s finding was open on the available evidence – no error in finding there was no difference in culpability of Tran and To – sentence not manifestly excessive – Held: appeal dismissed.
Cheung v The Queen (2001) 209 CLR 1; Isaacs v R (1997) 41 NSWLR 374, applied.
R v Stehbens (1976) 14 SASR 240, considered.

R v TRAN & TO
[2006] SASC 276
Court of Criminal Appeal: Duggan, Sulan and David JJ

DUGGAN J. The appellants Mau Tran (“Tran”) and Duong Thanh To (“To”) were charged jointly with the murder of Man Bun Hung (“Hung”) at Auldana on 18 February 2004.
Hung was Tran’s father-in-law and, up until shortly before the alleged offence, Tran was employed in Hung’s business. According to the prosecution case, Tran obtained money from the business fraudulently and this was put forward as the motive for the killing of Hung. It was further alleged that To assisted Tran in murdering Hung.
Tran has appealed against conviction and To has appealed against sentence. The appeals were heard separately, but it is convenient to give reasons in relation to both appeals in the same judgment.
Hung was 59 years of age at the time of his death. He was living with his wife at Auldana.
Towards the end of 2003, Hung became suspicious about financial irregularities in his business. He discussed his concerns with Tran and, in the course of the discussion, it was decided that Tran would no longer be employed by Hung. Tran asked to be given two months to gather together documentation relating to the business so that it could be given to Hung. Hung agreed to this request.
There was a delay in handing over the documents. Hung requested that they be supplied to him, but he got no response from Tran. Eventually, Hung sought his daughter’s assistance and it was agreed that the documents would be given to Hung on the evening of Tuesday 17 February 2004, the night before Hung was killed. The documents were not delivered on the Tuesday evening.
According to the evidence, Tran and To were friends. There was evidence that they spoke to each other on the telephone on a number of occasions in the days leading up to the alleged offence. They were in telephone contact on the night before the killing and in the early hours of the day of the killing.
At about 2.00 pm on 18 February 2004, Tran contacted To by telephone. According to the evidence, he then went to the suburb where To was living. Mr and Mrs Hung left their house at about 2.45 pm. They drove away separately and Hung returned by himself at around 4.00 pm. Mrs Hung returned to the house at about 6.00 pm to find her husband dead on the floor of his study. He had been stabbed to death.
When To and Tran were questioned by the police they denied involvement in the killing. The prosecution alleged that they gave the police false accounts of their movements.
Tran did not give evidence at the trial. To gave evidence, the essence of which was summarised by the trial judge in her summing-up:
Whilst the accused To has admitted to you that he was in the Auldana house when Mr Hung was killed, he told you that he played no role at all in the killing. To told you that, whilst on the previous day the accused Tran had asked him to do him a favour, namely to help him kill his mother and father-in-law, To had declined to do so. On the 18th To said he twice accompanied Tran to the Auldana house. On the first occasion he said he only left the car because Tran told him to “grab the paperwork” from the back seat. On the second occasion, he only went in because Tran said to him: “Are you coming in?” He did not enter the victim’s study and he was not outside for the purpose of helping Tran, if help became necessary.
The application for severance
The first compliant made on behalf of the appellant Tran is that the trial judge erred in refusing to direct that Tran and To be tried separately.
In my view, the trial judge acted correctly in refusing the application for severance. The relevant principles were summarised in the joint judgment of the court in R v Harbach (1973) 6 SASR 427 at 432:
It has been emphatically stated over and over again by courts of the highest authority that the question of joint trials or separate trials is a question for the discretion of the trial judge. Citation is almost superfluous, but we will refer to the decisions of this Court in R v Pullman [1954] SASR 116, of the Court of Criminal Appeal in England in R v Grondkowski (1946) 31 Cr App R 116, and the Privy Council in Youth v The King [1945] NW 27. As in the case of other discretions a court of appeal will not interfere merely because its members or some of them, think that they might have exercised the discretion differently, but will interfere if the bounds of a judicial discretion have been exceeded. In fact there is, as far as we can discover, no reported case where a court of criminal appeal has allowed an appeal on the ground that the trial judge wrongly refused to order separate trials, nor did counsel refer to any such case. Mr Matheson suggested that R v Dibble (1908) 1 Cr App R 155 might be such a case, but there, though the Court thought that it was unfortunate that the prisoners had been tried together, the real ground on which the appeal was allowed was that there was no evidence on which the appellant could properly have been convicted and that the case against him should have been withdrawn from the jury; see at p 158.
That does not mean, of course, that such a case cannot arise. But three things are clear. The first is that when the accused are charged with committing the crime jointly prima facie there should be a joint trial: Pullman’s Case [1954] SASR 116, at p 121; R v Kerekes (1953) 70 WN (NSW) 102, per Owen J at p 104. The appellant and Munroe were jointly charged and the Crown case was one of a joint enterprise, at least to rob Meyer and perhaps, if necessary, to kill him. The second is that a joint trial may be ordered notwithstanding that one result will be that evidence inadmissible against one of the accused, though admissible against the other, will be before the jury (Pullman’s Case [1954] SASR 116; Youth’s Case [1945] WN 27); and the third is that it may be ordered notwithstanding that one of the accused or each of the accused is trying to cast the blame for the crime on the other (Grondkowski’s Case (1946) 31 Cr App R 116), though both of these are highly relevant considerations to the exercise of the discretion (Grondkowski’s Case (1946) 31 Cr App R 116, at p 121).
There may appear to be an anomaly here. It may appear strange that material which would be sedulously kept from a jury, if an accused person were being tried alone, should be allowed to go before them when there is another person in the dock on the same charge. The point is made, with his customary incisiveness, by Dr Glanville Williams in The Proof of Guilt (1955) at pp 186-187. The answer appears to be two-fold: first, that it is the duty of the judge to make it plain to the jury what evidence is inadmissible against any of the accused and to warn them that they must not use such evidence against that accused and that the law assumes that the jury is capable of understanding and willing to heed such admonitions; second, that in such cases, and particularly when each of the accused is seeking to cast the blame on to the other, the interests of justice demand that the jury should have the whole picture presented to them and not half of it, and should see the person on whom blame is sought to be cast as well as the person seeking to cast it (R v Gibbins and Proctor (1918) 13 Cr App R 134 at p 137; Grondkowski’s Case (1946) 31 Cr App R 116; Kerekes’ Case (1953) 70 WN (NSW) 102). The second consideration is presumably thought sufficiently cogent for the law to leave it to the judge’s direction and warning about the use of evidence or material, such as an unsworn statement, admissible against one accused but not against the other, to act as a sufficient safeguard against injustice.
In the present case, the prosecution alleged that Tran and To were parties to a joint enterprise to kill Hung. As at the commencement of the trial, the case against both accused was circumstantial in nature. Much of the evidence which the prosecution proposed to call was admissible against both accused. Furthermore, both accused denied their involvement in the offence when questioned by the police and neither implicated the other in the statements they made to the police.
Mr Algie, for Tran, placed particular reliance on what he said was the prejudicial effect of a letter written by To to Tran when To was in custody awaiting trial and Tran was on bail (P 64). The letter was admissible against To only. The letter began by criticising Tran for suggesting that To employ the services of a lawyer who Tran had recommended. The letter continued:
If my sister does not get her money back by the end of this months, then I will make a deal with the police and the DPP to what really happened and why??
So make up your mind and which is more important to you??
Because they have been talking and seeing me since you got out on bail. They want you very bad!!
Does your wife know what really happened to her father and why??
I agree with the trial judge’s summary of the impact of the letter which is set out in the reasons for her ruling:
The letter implicitly asserts that the two men share knowledge as to “what really happened” to the victim and why. The accused To speaks as if he is in a position to hurt the accused Tran by publishing matters within his knowledge and says that he plans to do so if his – To’s – sister does not “get her money back”. The letter suggests an understanding between them of the way certain events have taken place. I acknowledge that this evidence has the potential to prejudice Mr Tran.
The trial judge refused the application for severance after referring to the principles relevant to an application of the type before her. She was of the view that any prejudice arising from the admission of the letter into evidence and any other evidence inadmissible in the case against Tran, but admissible against To, could be met by appropriate instructions to the jury. As I have said, it is my view that her decision to proceed with a joint trial of both accused was correct.
However, the question which arises on appeal is whether, by reason of the joint trial, there has been a miscarriage of justice. As King CJ said in R v Collie (1991) 56 SASR 302 at 310:
Nevertheless, the critical question in the end is whether an injustice has been caused by the joint trial. It sometimes happens that a joint trial held in consequence of an entirely justified refusal of the trial judge to accede to an application for separate trials may be seen, when all the evidence is in, to have resulted in injustice. R v Gibb and McKenzie [1983] 2 VR 155 and R v Demirok [1976] VR 244 were such cases. The critical issue on an appeal is not whether the exercise of the discretion of the trial judge miscarried on the material before him at the time when he made his decision, but whether the joint trial has produced a miscarriage of justice in the sense of depriving the appellant of a fair trial.
I have said that To gave evidence which implicated Tran. In my view, this had the effect of removing most of the prejudicial effect which the letter may have had in relation to Tran. There may have been an implication in the letter that Tran was involved in the murder, but this was stated directly in the evidence given by To. I do not accept the argument that the circumstances in which the letter was written, and the fact that it was available for perusal by the jury as an exhibit, resulted in prejudice to Tran which could not be cured by an appropriate direction.
There is no criticism of the directions which the trial judge gave to the jury when identifying the evidence which was admissible and inadmissible in relation to each accused. When referring to the letter P 64, her Honour instructed the jury as follows:
Also in the case against To the prosecution tendered the letter P 64 which provided a link between them, but further tended to assert that Tran knew something of the murder.
Now, none of that material, standing alone, constitutes evidence in the case against Tran. However, once the accused To gave evidence, that direction was largely overtaken by the fact that things he said in the witness box are evidence in the case for all purposes, including against Tran. And so, inasmuch as the accused To explained the letter P64 and the assertions within it, to the effect that Tran knew about Mr Hung’s death, then that becomes evidence in the case for all purposes including against the other accused. And indeed, as I said, that applies to all To’s evidence.
It is necessary, of course, to consider the evidence given at trial, including To’s evidence which implicated Tran, when determining whether the joint trial resulted in a miscarriage of justice. However, it is not unusual for one accused to give evidence against a co-accused during the trial and, in the light of the directions which were given to the jury, I am satisfied that no miscarriage of justice arose out of the aspects of the trial which I have identified so far.
However, I will return to this ground after considering the other grounds of appeal.
The remaining grounds of appeal relate to comments made by Ms O’Connor, counsel for To, during her address to the jury. The arguments emphasised that Tran did not give evidence. Other comments drew attention to Tran’s allegedly fraudulent conduct.
Comments by counsel for To on Tran’s silence at the trial

It is appropriate to set out the comments made by Ms O’Connor concerning the silence of Tran at the trial.
When referring to Tran’s alleged fraudulent behaviour she said:
Did he think it was all going to go away? We don’t know because he hasn’t told us.
When referring to the meeting between Tran and his parents-in-law on the occasion when he ceased to be employed in the business, Ms O’Connor said:
We don’t know what that meeting was. And Mr Tran hasn’t been able to help us with that.
As to Tran’s possible motive for killing Hung, Ms O’Connor said:
Do you think theft was the motive or do you think that’s something that has been suggested to you because murder was the motive and not the theft?
Who is the only person on the planet who would want this man dead? Well, he’s in the box [sic], and you didn’t hear from him.
Later she said:
We didn’t get an impression of him, we didn’t even see him on a video-tape.
Ms O’Connor went on to say:
There is one constant thread in the way that Mr To has told you that might help you in this: the thread is in the letter that he wrote to Mau Tran – I will talk to you a bit more about that letter. In the letter he wrote to Tran he talks about choices. In the conversation that he told you about that he had with Mau Tran, he talked about choices. We don’t know this because Mr Hung is obviously not able to help and Mr Tran chose not to help.
When referring to Mr To’s evidence, Ms O’Connor said:
You’ve seen him in the box, you have formed an impression of what he is, and you have not been able to see Mr Tran but you might come to the conclusion that Mr To’s relationship with Mr Tran was a very passive one.
And later:
Mr Tran is willing to lie to anybody about anything, is willing to lie about his two brother-in-laws, willing to get Ann Lu to lie to him. He is willing to lie to banks and the Ritz Café, he is willing to lie to the police. But the worst thing about Mr Tran in relation to this crime, the worst thing, is his failure to tell you anything about what happened to enable 600-odd questions to be asked of him.
Of course an accused doesn’t need to give evidence, doesn’t need to answer questions. You all heard the right to remain silent. They don’t need to tell the police anything. But you might think at the end of the day that there are unanswered questions that you don’t have the answers to. You might think that the questions that were asked in the cross-examination of Mr To raised more questions.
Ms O’Connor then referred to a number of matters which Tran could have commented on if he had given evidence.
At the conclusion of Ms O’Connor’s address, Mr Algie applied for the jury to be discharged because of comments of this nature. The application was refused by the trial judge.
The trial judge gave the following directions on Tran’s decision not to give evidence:
I turn to the defence case of Tran. As you know, in this trial, the accused Tran has chosen not to give evidence before you. As to that, I give you this direction. An accused person upon his trial is entitled to give evidence in his defence, or to refrain from giving evidence. In this case Mr Tran has elected not to give evidence and not to present any other evidence.
The fact that Tran has been silent in this court is not evidence against him. It does not constitute an admission by him and it may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt against him. There may be various reasons why Mr Tran chose not to give evidence and you should not speculate as to those reasons.
Let me expand on that in case there is any doubt about it. In any criminal trial the accused has the right to give evidence himself and to call witnesses in his defence. On the other side of the coin, he has the right to remain silent and to call no other evidence. There is no expectation that he will take any particular course. That is a function of the accusatory nature of a criminal trial in which the burden of proof remains on the prosecution. That being the position, there is no scope for the choices an accused makes being used as a weapon against him. To use his decision against him is to engage in a false process of reasoning.
Later in the summing-up her Honour said:
Ms O’Connor made submissions to you about To’s evidence. She contrasted To’s decision to give evidence with Tran’s decision not to. She is entitled to make that comment. If Ms O’Connor meant by her attack on Tran’s decision that it left To’s evidence uncontradicted and therefore able to be more readily accepted by you, then that is a matter which she is entitled to put to you, because, of course, To’s evidence on certain matters, including events at the Auldana house, is not contradicted by other direct evidence. Whilst that is a proper submission, as I have explained, the accused Tran cannot be criticised purely for taking a course which the law allows him to take.
Counsel for Tran submitted that the comments made by Ms O’Connor caused prejudice to his client which could not be cured by directions to the jury. He argued that this resulted in a miscarriage of justice.
This ground of appeal raises questions as to whether counsel for an accused in a joint trial is entitled to comment on the failure of a co-accused to give evidence and, if so, the extent to which such comment is permissible. A further aspect concerns the role of the trial judge in the event that a comment of this nature is made during the address of counsel for one accused concerning another accused.
Section 18 of the Evidence Act 1929 (“the Act”) relevantly provides:
18 (1)Every person charged with an offence shall be a competent witness for the defence at every stage of the proceedings, whether the person so charged is charged solely or jointly with any other person: Provided as follows:
(a)a person so charged shall not be called as a witness in pursuance of this Act except upon his own application;
(b)the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution.
Only the prosecution is prevented from commenting in the manner referred to in the Act. The judge may comment (Stuart v The Queen (1959) 101 CLR 1 at 9-10) and there is no prohibition preventing a co-accused from commenting.
The extent of permissible judicial comment in those jurisdictions in which it is open to the trial judge to comment was considered by the High Court in Weissensteiner v The Queen (1993) 178 CLR 217. In their joint judgment Mason CJ, Deane and Dawson JJ observed at 224:
… the right of the jury to take into account the silence of the accused does not stem from the right of the trial judge to comment upon it. Even in those jurisdictions where comment is prohibited, the jury may consider the accused's silence. The prohibition merely forbids the trial judge from reminding them that they may do so and informing them of the way in which they may properly do so.
Their Honours then referred to certain cautionary considerations which were appropriate to bring to the attention of the jury in a case where the judge comments on the failure of an accused to give evidence. They pointed out that the accused is given the right to remain silent and the exercise of the right is not evidence of guilt or innocence. In particular, it is not an implied admission of guilt (229). An accused may have reasons to exercise the right to remain silent other than that the evidence would not assist the defence case (228). Silence cannot fill in gaps in the prosecution case and cannot be used as a make-weight (229).
In their joint judgment, Brennan and Toohey JJ said that the jury must be told that the accused is not bound to give evidence and that the onus remains on the prosecution to prove guilt beyond reasonable doubt (235).
On the other hand, it was acknowledged that it is open to the judge in some cases to instruct the jury that the silence of the accused may be of relevance. Mason CJ, Deane and Dawson JJ said at 227:
We have quoted rather more extensively from the cases than would otherwise be necessary in order to show that it has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because uncontradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it. In particular, in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.
What counsel for the co-accused may say by way of comment is less clear. In some jurisdictions there is a provision enabling an accused to suggest that a co-accused failed to give evidence because the co-accused was, or believed that he or she was, guilty of the offence concerned: see eg. Evidence Act 1995 (Cth) s 20.
However, in the absence of statutory authorisation, I am of the view that defence counsel should not be permitted to make a submission contrary to the cautionary directions discussed in Weissensteiner v The Queen. The contrary view would condone the making of comments which would require correction by the trial judge.
Nevertheless, it is important to remember when considering the addresses of counsel, that what is said is not a direction to the jury. Of course, if counsel misstates the law it is important for the trial judge to correct it. Any complaint on appeal will then focus on whether the directions given by the trial judge were effective in removing any potential misunderstanding by the jury.
Authorities dealing with comments made by counsel for an accused concerning the silence of a co-accused are scarce, but the case of Wickham (1971) 55 Cr App R 199 is of some assistance. Wickham and two co-accused were charged with an assault. Wickham was the only one of the three accused to give evidence. He claimed that he was acting in self-defence. Counsel for the two co-accused claimed that their clients intervened to protect others from Wickham’s violence.
Prior to final addresses, counsel for Wickham announced his intention to comment to the jury on the fact that the co-accused had not given evidence. The trial judge held that he did not have a discretion to prevent such comment. It is not stated in the report what comment was made by counsel to the jury. At the time of the hearing, the relevant statutory provision was s 1 of the Criminal Evidence Act 1898 (UK). This was to the same effect as s 18 of the South Australian Act and prohibited comment by the prosecution.
The Court of Appeal held that the trial judge had acted correctly. Fenton Atkinson LJ said at 203:
In the view of this Court, the learned Deputy Chairman was quite right. Counsel were entitled, in our view, to comment. The Criminal Evidence Act 1898 restricts the prosecution from making such comment, but says nothing to restrict counsel for co-accused, and it is perhaps important to notice that when one looks at section 1 (f) (iii), where the right is given to the co-accused to cross-examine about character any other person charged with the same offence, in that instance the court has no discretion to prevent such cross-examination where evidence has been given against a co-accused. No authority has been discovered by anyone. Mr Lewer has obviously done some research and has been unable to find any authority to suggest that the right of the co-accused is limited to this regard. It seems right to this Court that whereas there is a fetter on the prosecution, a co-accused ought to be free through his counsel to put his case as he in his discretion thinks fit.
It is interesting perhaps to look at the case of Kennedy and Browne, a very famous murder case, The Times, May 23 1927, when the defendants appeared at the Central Criminal Court charged with the murder of Police Constable Gutteridge in Essex. Both men had been convicted and there was an appeal. Mr Powell was appearing for Kennedy, who had a number of previous convictions, and his compliant to the Court was this: that his client had been put in an impossible position because Mr Lever, who was appearing for Browne, had told him in plain terms that, if Kennedy was called as a witness and gave evidence that Browne had committed the murder, he would be bound to cross-examine Kennedy as to his bad record, but, alternatively, if Kennedy did not give evidence, he would take advantage of the legal position and comment in no measured terms on Kennedy’s absence from the witness-box. When the case came to the Court of Criminal Appeal presided over by the then Lord Chief Justice (Lord Hewart), Mr Powell drew attention to the appalling position in which his client had been placed in that regard. It seems clear that, reading the report of that case from The Times newspaper, neither Avory J., who tried the case nor the learned judges of the Court of Appeal thought there was anything wrong or that Mr Lever should not have had the right to take the alternative course of commenting on the failure of Browne to give evidence. In fact, when it came to the point, counsel, Mr Lever, made very vigorous comment, perhaps more vigorous than one would expect to hear in a court today, and said that Kennedy had “taken all the advantage of a coward’s screen by the panel of the dock”; but there was nothing in that comment which seemed to draw any disfavour from Avory J., who in fact reinforced it himself by commenting on the failure of that co-accused to give evidence.
That case, so far as it goes, does seem to us to be an authority which supports the right of counsel to comment on the failure of a co-accused to give evidence and we can find nothing in statute or authority to limit his right to do so. In our opinion, there is no discretion in the judge to intervene, although of course he always has the last word and no doubt can make very forceful comment in a case where he thinks it right and draw the jury’s attention to the undoubted right of an accused not to give evidence, and if he thinks that counsel has gone rather too far or has been unfair, he can deal with that satisfactorily in the course of his summing-up.
Wickham was applied by the Scottish High Court of Justiciary in Shevlin v HM Advocate (2002) SLT 239. Two accused were charged with murder and attempted murder. At trial, each incriminated the other. The appellant remained silent at the trial and the co-accused gave evidence. According to the headnote, in his speech to the jury counsel for the co-accused repeatedly referred to the appellant’s silence at the trial and said at one stage “in his silence there is the most eloquent statement of admitted guilt as you would ever wish to hear”. The appellant argued that counsel for the co-accused should have been restricted to the comments usually made by the trial judge and that, in any event, the comments were excessive and seriously prejudicial to the appellant’s prospects of a fair trial.
The court held that defence counsel’s speech was undisciplined and lacked the “care and precision that this delicate evidential question required”. However, it was held that the remarks did not constitute an impropriety. Their Honours concluded at [15]:
There are procedural differences between the two jurisdictions, but in our view the approach taken by the court in R v Wickham is consistent with Scots law and should be applied in this case. In Scotland the trial judge is entitled to intervene in the course of a speech to the jury; but in most cases it will be sufficient for him to reserve his comments for his charge.
We are further of the view that comments on the silence of the co-accused, where they may properly be made, are not qualified by the somewhat uncertain requirement of restraint that applies to such comments when made by the judge or prosecutor. We agree with the submission for the Crown that the nature of defence counsel’s task is fundamentally different from those of the judge and the prosecutor in the respects mentioned by the advocate depute.
In a case such as this counsel is entitled to present his client’s defence to the fullest extent that is open to him. In the exercise of his right to comment on the case for another accused, counsel is subject only to the normal restraints of professional propriety and courtesy. He may not mislead the jury as to the facts or the law and he should express himself with the discretion that both judge and jury are entitled to expect. If he is to comment on the fact that the co-accused was silent in circumstances where he had a right to be silent, counsel must in making such comments duly acknowledge that the co-accused had that right.
Their Honours added at [19]:
However, if those remarks did constitute an impropriety, we consider that they did not prejudice the appellant’s defence irremediably and that the trial judge acted correctly in the manner in which he dealt with him. It was suggested at one stage in the argument that the trial judge ought to have intervened during the speech. We do not agree. We have had the opportunity, which the trial judge did not have, to consider the matter at length. The trial judge had to decide in an instant whether to interrupt the speech or to leave the matter for his charge. He exercised his judgment reasonably, and in our view correctly. Moreover, his directions on the point were more than adequate to bring home to the jury the proper approach to the appellant’s right to silence. On that view, there was no miscarriage of justice.
See also the decision of the Supreme Court of Canada in R v Crawford (1995) 96 CCC (3d) 481.
In the present case, most of the comments made by counsel for To in this context were criticisms of the fact that Tran had not given explanations to the court about matters which were within his knowledge. The distinction was drawn between To, who submitted himself to extensive cross-examination, and Tran who said nothing. It was pointed out that the jury were able to form an impression of To by his presentation, but that this was not the case with Tran.
Mr Algie drew particular attention to the comment by Ms O’Connor that the “worst thing” about Tran is “his failure to tell you anything about what happened to enable 600-odd questions to be asked of him”. Again, however, this seems to relate to Tran’s decision not to comment on matters within his knowledge. Later in the same passage, Ms O’Connor summarised the point she was making by saying:
But you might think at the end of the day that there are unanswered questions that you don’t have the answers to.
It should also be noted that Ms O’Connor acknowledged in her address that Tran had the right to remain silent.
In my view, the comments made by Ms O’Connor did not convey to the jury that they could infer guilt simply by reason of the fact that Tran exercised the right to remain silent. But, in any event, the trial judge warned the jury against impermissible reasoning in this and other respects. The jury were told that they could not use Tran’s failure to give evidence in a way which was adverse to his case. The trial judge gave each of the cautionary directions referred to in Weissensteiner v The Queen which are set out above. The trial judge also drew the distinction between using Tran’s silence to make the point that there was no direct evidence to contradict To, which is permissible, and criticising Tran for taking a course which the law permitted him to take, which is impermissible.

The main concern expressed by Mr Algie was that the repeated references in Ms O’Connor’s address had the effect of leaving the jury with an incorrect understanding of the inferences which might be drawn from Tran’s silence and that this misunderstanding would have remained at least until the summing-up.
There may have been ambiguity in some of what Ms O’Connor said, but I think the general affect of the comments was as I have stated. In any event, for the reasons which I have given I am of the view that the directions by the trial judge were adequate in instructing the jury on the correct approach when dealing with the exercise of Tran’s right not to give evidence. If there was any misunderstanding as a result of Ms O’Connor’s address, it was short lived.
Mr Algie also argued that the comments made by Ms O’Connor were gratuitous in that Tran did not seek to blame To. However, it was implicit in To’s defence that he was unwittingly involved in this matter by a man intent on killing Hung. He said he was present in the house simply because of his association with Tran and at Tran’s request. It was central to his case that the killing was carried out by Tran alone and that he had nothing to do with it. It was put to To in cross-examination by counsel for Tran that To was involved alone or with others in the death of Hung and that Tran was not involved. He denied these allegations. For these reasons, it is clear that counsel for To’s assertions against Tran were not gratuitous. In my view they were intended to advance To’s case.
Comments made by counsel for To on Tran’s fraudulent conduct
The comments made by Ms O’Connor about Tran’s allegedly fraudulent behaviour, his gambling problem and the lies which he had told, drew attention to Tran’s motive for the murder. This was in contrast to the absence of a reason for To’s involvement. The comments were based on evidence which had been adduced by the prosecution for the purpose of establishing motive. It was not argued on appeal that Ms O’Connor had misstated the effect of this evidence.
In her summing-up, the trial judge explained the permissible and impermissible uses of the evidence of lies and fraudulent conduct by Tran. She said:
And so, obviously an important limb of the prosecution case has been proof that the accused Tran stole money from Hung Enterprises and that he lied to various people in the course of so doing. I need to warn you against misuse of that evidence. That material is before you because it has potential relevance to the charge that the accused Tran faces. The prosecution points to it as explaining the state of the relationship between the victim and Tran, and as providing a motive for the crime. You should be careful not to elevate its importance beyond that which it deserves. Even if you consider that Tran was involved in stealing money from Hung Enterprises, the Ritz rent cheques or the amounts paid on false invoices, or, indeed, the attempt to obtain the commission, you should not reason that he is therefore the sort of person who might commit murder. Plainly the one does not follow from the other. You should be careful not to reason that because of the thefts, he is a person of bad character and necessarily the more likely to have committed the crime with which he is charged. And so I give you that direction.
I do not think the comments by Ms O’Connor would have led the jury to reason in an impermissible way.
Comments on the failure of Tran’s wife to give evidence
Finally, Mr Algie complained of two references in Ms O’Connor’s address to the fact that Tran’s wife, Flora, was not called to give evidence.
The relevant passages are as follows:
And you might have a look also [at] the calls he did make and the conversations that he did have with her and the length of those calls. You will see that there is a flurry of calls obviously concerning the missing paperwork, not only on the 17^th but the 18^th as well. We only have Mrs Hung’s version of that and she obviously isn’t having the conversations with Flora. We don’t have Flora’s version of those.
Later in her address Ms O’Connor said:
You might have also wondered whether his wife could have come to court and given evidence and assisted in relation to what she understood, what she had been told; the conversations that Mr Tran had with her; whether he told her he was going back up to that house at Auldana; what day she was working, because it was clear there was a suggestion that on the 17^th she was supposed to have been working; what she understood about the meetings that had been had; what she understood about what her husband had been up to on that day; what she understood about all the money and the debts.
Although it is not directly relevant to the present case, I note that the statutory prohibition previously contained in s 18 of the Act prohibiting the prosecution from commenting on the failure of the wife of an accused to give evidence has now been repealed. The prohibition did not apply to counsel for a co-accused.
However, the point taken with respect to these comments is that they invited the jury to reason in the manner referred to in Jones v Dunkel (1959) 101 CLR 298. Counsel relied on Dyers v The Queen (2002) 210 CLR 285, where the High Court held that, as a general rule, Jones v Dunkel reasoning should not be applied in a criminal trial.
A short answer to this argument is that the comments made by To’s counsel stopped short of inviting Jones v Dunkel reasoning. There was no suggestion that the failure of the appellant to call his wife might lead to an inference that her evidence would not have assisted the appellant. There was simply a comment that his wife could have provided a version on the issues to which reference was made.
Furthermore, the trial judge made the following reference to Tran’s wife in her summing-up:
Finally I mention Flora. What, if any, role did she have in what occurred? It may be that there is simply insufficient material on which you would base any conclusion as to her position in this train of events. However that may be, you should not speculate as to what evidence she might have given had she been called.
Summary
By way of summary, therefore, I do not accept that the comments made by Ms O’Connor which have been discussed under these three headings were productive of a miscarriage of justice. Although Ms O’Connor made several rhetorical comments on Tran’s failure to give evidence, I do not think that the jury would have been under any misapprehension as to the impermissible uses of Tran’s failure to give evidence after the directions which were given by the trial judge. Furthermore, Ms O’Connor was entitled to refer to the evidence of Tran’s fraudulent behaviour which had been led by the prosecution. Again, the trial judge’s directions explained the manner in which this evidence could be used and how it was not to be used. Finally, I have expressed the view that the comments about Tran’s wife did not involve Jones v Dunkel reasoning.
I said I would return to the issue of separate trials. It is true that the matters complained of by Mr Algie arising out of Ms O’Connor’s address could not have been anticipated at the time of the application for severance. They would not have arisen if there had been separate trials. Nevertheless, the test is whether a miscarriage of justice has resulted in all the circumstances of the trial. I have expressed my reasons for concluding that this is not the case.
I would dismiss Tran’s appeal against conviction.
The appeal against sentence by To
To was imprisoned for life. A non-parole period of 26 years was imposed. To has appealed against sentence on the following grounds:
(1)The learned sentencing Judge erred in finding that the appellant inflicted the fatal injuries on the victim.
(2)The learned sentencing Judge erred in finding that there was no difference in the culpability of the appellant and the co-accused.
(3)The sentence, including the non-parole period was manifestly excessive.
When sentencing both appellants, her Honour said:
On the day of the killing you both went to Mr Hung’s home. You, To, said there were two such visits. There may well have been, but I am unsure whether you both entered the house on the first visit. It seems you had some information as to Mr Hung’s movements, because plainly he had not been home long when you both entered his house through the garage door. I am satisfied that you were both present when Mr Hung was killed. It was suggested in evidence by you To that you were outside the study at the time when Mr Hung was killed by you Tran. But I do not accept that. Plainly, your role was to utilise your strength – superior both to the victim’s and to Tran’s – and the fact that you sustained an injury at the house and left your blood there convinces me that you wielded the knife against Mr Hung. The fact that your gloves were found in the bag which carried the murder weapon to the scene is support for that role. I am satisfied beyond reasonable doubt that this crime was the product of a joint enterprise between you.
It is hard to know which of you is more culpable in this killing. You, To, had no reason to wish to harm the victim. For your part, your role in this murder was that of an executioner. You had no business even being in Mr Hung’s home. On the other hand, you, Tran, gave birth to the idea of killing Mr Hung and then planned the carrying out of it. You somehow persuaded your close friend to take part. In the end, I find the crime so grave that it makes no difference to my estimate of your culpability which of you struck the blows.
Before addressing the arguments advanced on the appeal against sentence, it is appropriate to say something about the sentencing role of a trial judge following jury verdicts in a case such as the present.
In Cheung v The Queen (2001) 209 CLR 1 at [14], Gleeson CJ, Gummow and Hayne JJ stated:
In Isaacs the Court of Criminal Appeal summarised certain well-established principles concerning the law and practice of sentencing in New South Wales as follows (Issacs (1997) 41 NSWLR 374 at 377-378, per Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ.) (omitting references to authority):
1Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, and not with the jury…
2Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings. …
3The primary constraint upon the power and duty of decision-making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. ...
4A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. ... However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. ...
These principles are also applied in this State: R v Stehbens (1976) 14 SASR 240.
There is one further consideration referred to in Isaacs which is of relevance to the present case. The Court pointed out (380) that the task of the sentencing judge in that case was not to determine the basis upon which the jury reached its verdict, but to find for himself the facts relevant to sentencing. This was in the context of a manslaughter case where more than one basis for a verdict of guilty of manslaughter was left to the jury.
In the present case, the judge approached the task of sentencing in accordance with these principles. It is apparent from the passage in her sentencing remarks which is set out above, that her Honour reached the view that To inflicted the fatal injuries. Her Honour relied on what appeared to be the superior strength of To; the fact that there was evidence that he sustained an injury at the house where there were signs of a struggle; and the fact that gloves which matched sets of work gloves found at his home were in a bag which appeared to have been used to carry the murder weapon. In my view, the finding that the injuries were inflicted by him was open on the evidence available to the trial judge.
However, as her Honour pointed out, it made no difference to her assessment of culpability which offender struck the blows. The case was left to the jury on the alternative bases of joint enterprise and aiding and abetting. Her Honour stated that, for sentencing purposes, she was satisfied beyond reasonable doubt that the crime was committed as part of a joint enterprise. There was evidence upon which the jury could find that there was a joint enterprise and the same evidence was available to the trial judge. There was ample evidence upon which the judge could reach the conclusion that To did not suddenly become involved in the killing when he went to the house, but that he went there pursuant to a plan to murder the victim.
Accordingly, it was open to the judge to sentence To for a planned and premeditated murder in which he took part as a joint offender. It mattered not who struck the fatal blow or blows. There are no other grounds on which it could be said that the sentence was manifestly excessive.
The appeal against sentence by To should be dismissed.
SULAN J. I would dismiss Tran’s appeal against conviction. I would also dismiss To’s appeal against sentence. I agree with the reasons of Duggan J in respect of each appeal.
DAVID J. I agree with the reasons given by Duggan J in respect of each appeal. I would dismiss the appellant Tran’s appeal against conviction. I would also dismiss the appellant To’s appeal against sentence.