R v Tran & Tran - [2011] SASCFC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRAN & TRAN
[2011] SASCFC 51
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kourakis and The Honourable Justice Peek)
7 June 2011
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - BURDEN OF PROOF - DIRECTIONS TO JURY
Appellants found guilty by a jury of recklessly causing serious harm - whether trial judge reversed onus of proof in his directions to the jury.
Held: appeal allowed.
Liberato v The Queen (1985) 159 CLR 507; Murray v The Queen (2002) 211 CLR 193, applied.

R v TRAN & TRAN
[2011] SASCFC 51
Court of Criminal Appeal: Vanstone, Kourakis & Peek JJ

THE COURT: The appellants were charged on information in the District Court for causing serious harm with intent to cause serious harm, with circumstances of aggravation. After a jury trial occupying three days, each was found guilty of the alternative offence of recklessly causing serious harm, with circumstances of aggravation. They have not yet been sentenced.
They appeal against these convictions on several grounds which include a complaint that the learned trial judge erred in his directions to the jury on the burden of proof.
As will be seen, the Court is satisfied that this complaint is made good and that it is necessary to quash the convictions and to order a retrial. In these circumstances we do not find it necessary to set out the facts of the matter in any detail, or to discuss the other grounds of appeal, which concern matters unlikely to arise upon a retrial.
Background
In brief, the prosecution case was that on an occasion in 2008 the alleged victim, whom we shall call “P”, drove to a house to pick up a friend. While P was outside the front of the house, the appellant Minh Tuan Tran (whom we shall call “D1”) and the appellant Ngoc Thai Tran (“D2”) attended there. They were persons whom P had previously known.
It was alleged that the three men argued and that the appellants then damaged the motor vehicle which P had driven there and that they then attacked P. He was brought to ground and then punched and kicked. He suffered serious injuries, including a fractured skull. A Doctor Allen gave some evidence about the sort of force that might have caused that injury.
D1 did not call any evidence, but D2 gave evidence in his defence. In essence, he admitted involvement in an incident involving D1 and P, but said, in effect, that P was the aggressor and that he, D2, attempted to calm the situation. He said some punches were exchanged between himself and P. He said P tried to headbutt him and that both men fell. D2 said when P hit the ground, he heard a loud crack. Shortly afterwards he and D1 left the area. He last saw P standing up and apparently not suffering serious injury.
D2’s defence amounted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Tran & Tran

Details

AGLC: R v Tran & Tran [2011] SASCFC 51
Case: [2011] SASCFC 51
Decision Date: 7 June 2011

CaseChat Overview and Summary

In the case of *R v Tran & Tran*, the Court of Criminal Appeal of South Australia considered an appeal by two accused, Minh Tuan Tran (D1) and Ngoc Thai Tran (D2), against their convictions for an aggravated assault. The prosecution alleged that the appellants damaged the victim's vehicle and then physically attacked him, causing serious injuries. D1 presented no evidence, while D2 gave evidence suggesting the victim was the aggressor and that his actions were in self-defence.

The central legal issue before the court was whether the trial judge's directions to the jury concerning the burden of proof and the competing versions of events were adequate. Specifically, the court had to determine if the judge's framing of the case around "the [P] scenario" and "the [D2] scenario," and his comments about which scenario the jury might be "satisfied" occurred, had the effect of improperly shifting the onus of proof from the prosecution to the defence.

The Court of Criminal Appeal found that the trial judge's directions were fundamentally flawed. By referring to the competing accounts as distinct "scenarios" and suggesting that different considerations might apply to being "satisfied" of one scenario over another, the judge risked confusing the jury about the prosecution's sole burden to prove guilt beyond reasonable doubt. The court held that it was impossible to be satisfied that the jury understood this crucial principle, especially given the prominence of these directions within the summing up. Consequently, the court allowed the appeals, quashed the convictions, and ordered a retrial.

Orders

Orders of the court

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Background

Background to the litigation

As will be seen, the Court is satisfied that this complaint is made good and that it is necessary to quash the convictions and to order a retrial. In these circumstances we do not find it necessary to set out the facts of the matter in any detail, or to discuss the other grounds of appeal, which concern matters unlikely to arise upon a retrial.Background In brief, the prosecution case was that on an occasion in 2008 the alleged victim, whom we shall call “P”, drove to a house to pick up a friend. While P was outside the front of the house, the appellant Minh Tuan Tran (whom we shall call “D1”) and the appellant Ngoc Thai Tran (“D2”) attended there. They were persons whom P had previously known. It was alleged that the three men argued and that the appellants then damaged the motor vehicle which P had driven there and that they then attacked P. He was brought to ground and then punched and kicked. He suffered serious injuries, including a fractured skull. A Doctor Allen gave some evidence about the sort of force that might have caused that injury. D1 did not call any evidence, but D2 gave evidence in his defence. In essence, he admitted involvement in an incident involving D1 and P, but said, in effect, that P was the aggressor and that he, D2, attempted to calm the situation. He said some punches were exchanged between himself and P. He said P tried to headbutt him and that both men fell. D2 said when P hit the ground, he heard a loud crack. Shortly afterwards he and D1 left the area. He last saw P standing up and apparently not suffering serious injury. D2’s defence amounted to a combination of self-defence, defence of D1 and a denial of central parts of P’s account. Had D2’s evidence been accepted by the jury as a reasonable possibility, then both men would have been acquitted. When the learned trial judge summed up he gave the usual general directions about the onus and standard of proof and the presumption of innocence. These were given in unexceptional terms. He directed the jury that each element of the charge had to be proved beyond reasonable doubt by the prosecution. The judge explained that in his summing up use of the words “proved”, “satisfied”, or “established” would mean proof beyond reasonable doubt. Other general directions about which no complaint is made were given. It was when the judge came to deal with the evidence in the case that the directions which are the focus of this appeal were given. In the course of discussing the evidence the judge referred to the two competing versions of the events as “the [P] scenario” and “the [D2] scenario”. The judge gave the following impugned directions:Dr Allen’s evidence is important as to each of the two scenarios to which I have referred because what you make of her evidence may be relevant as to which scenario you find proved, if either, in light of the undisputed fact that [P] suffered a serious head injury … …I have gone into some detail in respect of the two possible scenarios because different considerations may apply to which scenario you are prepared to be satisfied as having occurred beyond reasonable doubt, if you were prepared to be so satisfied as to any scenario or either scenario.…As I now give you directions on the elements or ingredients of the crime charged against both accused you will have to consider these directions on the basis of whichever scenario you find proved, if you find either of them proved beyond reasonable doubt. With all this in mind, I move now to the elements or ingredients of the crime charged.After directing on the third element of the charge, being unlawfulness, the judge said:However, if you are satisfied that the events occurred as described by [D2] in the [D2] scenario, the defence of lawful self-defence of himself by [D2] needs to be considered by you.…I return to the question of self-defence. If you are satisfied of the D2 scenario, then whatever you find [D2] to have done, if anything, … would not be unlawful if it occurred in lawful self-defence.In dealing with the circumstance of aggravation, the judge said:If you are satisfied beyond reasonable doubt that the incident occurred according to the [D2] scenario, you are not likely to find this aggravating circumstance proved … In the context of discussing the various alternative verdicts, the judge said:… because if you are satisfied that the events occurred on the [D2] scenario, then I have indicated earlier that it is unlikely that you will be satisfied that the offence was aggravated because they will not be acting together.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

We return to the present case. In our view, such was the prominence of the misdirections identified in the summing up as a whole that it is difficult to be satisfied that the jury would have understood that the burden of proof remained steadily on the prosecution and that it was not for the appellants to satisfy the jury of D2’s version of events. As Deane J said in Liberato, in a passage already referred to, it is impossible to do more than to speculate in that regard. Indeed, counsel for the respondent does not seek to uphold the convictions in the face of the identified misdirections. There can be no question of applying the proviso.Conclusion It is necessary to allow both appeals, set aside the convictions and order a retrial.

Ratio Decidendi

Legal Principle Established

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