R v Truong Hong Phuc & Truong Thi Van
[2000] VSC 243
•16 June 2000
| SUPREME COURT OF VICTORIA | |
| CRIMINAL DIVISION | Not Restricted |
No. 1449 of 1999
| THE QUEEN |
| v. |
| TRUONG HONG PHUC AND TRUONG THI VAN |
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JUDGE: | VINCENT, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF RULING: | 7 FEBRUARY 2000 | |
DATE REASONS HANDED DOWN: | 16 JUNE 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 243 | |
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CATCHWORDS: Admissibility of the evidence of Nguyen Dinh Minh – Section 398A Crimes Act – R. v. Best [1990] 4 V.R. 603 – Evidence possesses probative value – Whether evidence should be excluded in the exercise of judicial discretion – Evidence admissible.
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APPEARANCES: | Counsel | Solicitors |
For the Prosecution | Mr. G. Hicks Mr. A. Moore Ms K. Judd | Office of Public Prosecutions |
| For the Accused Phuc | Mr. P. Morrissey | Clarebrough Pica |
| For the Accused Van | Mr. S. Langslow | Stary George Myall |
HIS HONOUR:
Prior to the empanelment of the jury in this matter, Mr. Morrissey of counsel who appears on behalf of the accused Phuc objected to the admission into the trial of the evidence of a proposed witness, a man named Nguyen Dinh Minh.
The propositions upon which reliance was placed in support of this objection are set out in a document headed "Application to exclude the evidence of Nguyen Dinh Minh", which is annexed hereto and forms part of this ruling (Annexure A). The prosecution contentions were also provided in written form and are contained in Annexure B which is similarly incorporated. Accordingly, there is no need to recite the arguments advanced by the parties.
The evidentiary background against which the issue of the admissibility of the proposed witness' evidence has arisen has been summarised in a statement, which was prepared by Australian Federal Police Agent Stewart Williams and provided to Judge Davidson in the District Court in New South Wales when the proposed witness appeared before him for sentencing, in relation to the importation of heroin into Australia. Relevant portions of the statement read:
"On Friday 9 August 1996, Australian Air Express International Air Freight consignment number 217-1892 3586 arrived in Sydney, Australia from Bangkok, Thailand on board Thai Airways flight TG991.
…
On Saturday 10 August 1996, Australian Customs Service officers examined the consignment. The examination revealed that each crate contained a large black marble vase. An examination of one of the vases revealed that there was a large quantity of white powder concealed in the base of the vase. A narcotic field test conducted by Australian Customs Service officers indicated the presence of heroin.
On Saturday 10 August 1996, members of the Australian Federal Police attended the offices of the Australian Customs Service at Link Road, Mascot and seized the three crates containing the vases.
On Sunday 11 August 1996, the three crates and vases were examined by members of the Australian Federal Police Physical Evidence Unit and a chemist from the Australian Government Analytical Laboratories. An examination of the vases revealed that there was a large quantity of white powder concealed in the base of each of the vases.
The total combined weight of the white powder concealed in the bases was 13.993 kilograms. A presumptive test conducted by an Australian Government Analytical Laboratories chemist on a sample of the white power indicated the presence of heroin.
…
On Monday 12 August 1996, the Australian Federal Police conducted a controlled delivery of the crates from the offices of Australian Air Express, Link Road, Mascot, New South Wales.
On Monday 12 August 1996, the three crates were collected by Manh Tien NGUYEN and the prisoner. Australian Federal Police observed the prisoner and Manh Tien NGUYEN collect the three crates in a red coloured Holden Commodore Sedan [New South Wales registration OPR588], and deliver them to 50 Belmore Avenue, Belmore, New South Wales. A short time later Manh Tien NGUYEN departed the premises
About 6.30 p.m. that evening Australian Federal Police entered the premises at 50 Belmore Avenue, Belmore. Police located all three black marble vases inside a bedroom of the premises. Also located in that bedroom were a set of electronic scales and a large quantity of plastic re-sealable bags. The broken crates were located in the rear of a vehicle in the back yard of 50 Belmore Avenue, Belmore.
The prisoner was arrested and conveyed to Australian Federal Police Headquarters, 110 Goulburn Street, Sydney, where he took part in a taped record of interview during which he denied any knowledge of the matter. He was subsequently released.
On 21 August 1996, police returned to 50 Belmore Avenue, Belmore and arrested the prisoner. The prisoner consented to his premises being searched by police. During the ensuing search, police located a piece of note paper with weight measurements written on it. The prisoner was conveyed to Australian Federal Police headquarters where he participated in a taped record of interview.
During the taped record of interview the prisoner was given the opportunity of listening to lawfully obtained taped conversations between himself and other people.
During the taped record of interview the prisoner made a number of admissions. The prisoner stated that he had been approached by an acquaintance who told him that he would be sent a package of clothing from overseas. The prisoner stated that he was to be paid an undisclosed sum of money once he had received the package.
The prisoner stated that he had been reluctant to receive the package, but his acquaintance threatened him and his family."
When addressing mitigatory considerations in his sentencing remarks, His Honour stated:
"First of all, and this is a matter of course which 1 am obliged to take into consideration, not only by reason of the general law relating to it but also by reason of s.16A subs 1 paragraph H of the Crimes Act, you have rendered already substantial assistance to the authorities in two highly important respects. In addition you have given and signed written undertakings to give further assistance to the authorities when the time comes that you are to be called as a witness in the matters to which 1 am now going to refer. They relate mainly to Truong, to whom reference has already been made in these remarks.
Truong, according to the evidence before me, and I accept the submission of counsel made to me in this respect on your behalf, was the principal behind this importation of drugs into this country. He was, and but for his present incarceration in the United Kingdom, I have no doubt would continue to be, a dangerous drug dealer who had, as part of his modus operandi, the use of violence and threats of violence in order to achieve the ends which he sought, namely dealing in prohibited drugs in large quantities. Indeed, the evidence before me, which is not contested, having been presented to me by the Crown, indicates that Truong has used kidnap and murder to further his criminal ends.
It is in two respects that you have undertaken to give further assistance to the authorities. First of all in relation to the importation of the heroin which is the subject of the offence to which you have pleaded guilty, when the time comes, following the extradition of Truong, and he is put upon his trial for that offence. Secondly, you have undertaken to give to the Victorian Police assistance, that is to say continued assistance, at a similar level in relation to the murder, or alleged murder to which 1 have just referred.
It is part of the evidence before me, which I also accept, that Truong was prepared, and indeed did use similar violent threatening methods to involve you in the present offence, and that is an aspect of the matter to which I will refer shortly. But so far as the giving of assistance to the authorities is concerned, I accept the submission of counsel on your behalf that your assistance has already been substantial, and will indeed be of a vital kind if the conviction of Truong in respect of either or both of the criminal prosecutions to which 1 have referred, are to be successful."
In a statement to the police, Nguyen Dinh Minh asserted that, at one point and prior to taking delivery of the imported material, he became apprehensive of his continued involvement and indicated to the accused that he resolved to withdraw from the enterprise. He continued:
"Phuc became angry with me and he said … I had to do what he instructed. If I do not my life will mean nothing and will be finished. He said that if I accept the instructions no harm will come to me and my family … I believed that Phuc would genuinely carry out his threats because he said to me 'look at the example from Melbourne. The woman there resisted our proposals and instructions she had to collect all the bad results of consequences'."
It is this claim and enough of the background to place it into context together with a further piece of evidence to which I will return that the Crown desires to adduce before the jury.
Considered against the background of the assertion by the proposed witness that he was effectively being forced into participation in criminal activity by the accused, the statement attributed to Truong Hong Phuc could be reasonably interpreted by the jury as a serious threat which rested upon and drew its force from an admission by him of involvement in the events in Melbourne with which this trial is concerned.
True it is that the "woman" to whom reference was made was not specifically identified, and the nature of the "consequences" to which that person had exposed herself by non-compliance with the demands of the accused were not spelled out. Nevertheless it would be open to the jury to infer, as the witness claims he did, that the accused was referring to Ha Thi Que Mai and to the kidnapping and death of the deceased; events which had attracted considerable media attention at the time and with which there is other evidence that the accused was associated.
Whilst, as I indicated when delivering a brief ex tempore ruling on this matter, the admissibility of the evidence on this basis would not be dependent upon the demonstration of a propensity of the accused to engage in criminal conduct, either generally or in any specific form of unlawful activity, it would nevertheless indicate that he was, as indeed Judge Davidson found, not only involved in drug dealing but was prepared to employ, at least, the threat of violence to achieve his objectives.
Accordingly, as the prosecution conceded, s.398A of the Crimes Act is applicable to the determination of the admissibility of the evidence. The question must be considered within the framework of principles set out in the judgment of Callaway J.A. in R. v. Best[1].
[1][1998] 4 V.R. 603
Viewed in the context of a circumstantial evidence case in which the prosecution contends that the accused was the controlling mind behind the kidnapping and murder of the deceased, an acknowledgment by the accused that he was involved in some way in what had happened to "the woman" from Melbourne who had "resisted our proposals and instructions" and that she had had "to collect all the bad results of consequences" must be regarded as possessing substantial probative value.
Obviously, the proposed evidence is capable of producing some prejudicial impact against the accused and clearly it would be necessary to direct attention, whether or not s.398A of the Crimes Act were applicable, to its possible exclusion in the exercise of judicial discretion and to consider whether it would be just to admit the evidence in the circumstances. I am satisfied that this test has been satisfied, although it will be necessary to provide careful instruction to the jury in relation to the proper use of the evidence concerned.
That use, in my view, should be confined to the possible acknowledgment by the accused of his involvement in the relevant events. It must be borne in mind that the prosecution case against Truong Hong Phuc is based upon circumstantial evidence and it needs to be acknowledged, I think, that the potential impact of evidence of the kind presently under consideration is possibly higher than it might be in cases not so formulated. Accordingly, I do not consider, that full detail of the background circumstances as alleged by the proposed witness would be required to enable the jury to understand the broad context in which the asserted statement was made. In other words, the admission of only so much of the background as would be required for the jury to interpret and understand the true impact of the statement would be justified on this basis. To go beyond that point would be to increase unjustifiably the risk of prejudice or unfairness to the accused.
Further, of considerable significance to the prosecution case, is the evidence of Ha Thi Que Mai, the mother of the deceased. The honesty and reliability of that witness is almost certainly going to be the subject of considerable challenge. It will, of course, be necessary to provide the jury with a strong warning and instructions concerning the dangers associated with the evidence of a witness in the situation of Nguyen Dinh Minh. In those circumstances it would, in my opinion, increase in an unjustified manner the risk of prejudice to permit the jury to use the evidence of either of these two witnesses to support that of the other, either in terms of corroboration or through a similar fact or relationship reasoning process, although I am of the view that a strong argument could be advanced that it would be permissible in law to do so. Having arrived at this view I do not think that I need address on either ground the respective arguments of the prosecution and the defence regarding the admissibility and use of the evidence or a similar fact or relationship basis with respect to the evidence of Ha Thi Que Mai.
The further evidence that the prosecution proposes to adduce from Nguyen Dinh Minh and to which I earlier adverted relates to the alleged provision by him at the request of Truong Hong Phuc of a motor car for use by a person alleged to be Bui Tai Huu, a person who the prosecution asserts can be seen on the basis of other evidence to have been implicated in the kidnapping of the deceased. That evidence, considered in the circumstances of the present case, clearly possesses probative value and no sufficient reason has been advanced to justify its exclusion in the exercise of judicial discretion.
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ANNEXURE A
APPLICATION TO EXCLUDE THE EVIDENCE OF DINH MINH NGUYEN
Introduction
This evidence, it is submitted, is inadmissible against the Applicant on his trial for murder.
It will be recalled that the last known act in the kidnapping occurred on 4 May 1996. This evidence relates to an importation of drugs thirteen weeks later.
The Evidence
The witness NGUYEN Dinh Minh was arrested in relation to the importation of a commercial quantity of heroin. When first interviewed by police he denied any knowledge of the heroin. Subsequently he spoke to police and implicated the accused Phuc in the importation, blaming Phuc for luring and ultimately cajoling him into the offence.
In his interpreted statement to the police Dinh Minh attributed to Phuc a threat, which the Crown assert constitutes an admission:
"Phuc became angry with me and he said ... I had to do what he instructed. If I do not my life will mean nothing and will be finished. He said that if I accept the instructions no harm will come to me and my family ... I believed that Phuc would genuinely carry out his threats because he said to me 'look at the example from Melbourne. The woman there resisted our proposals and instructions so she had to collect all the bad results of consequences'." (see statement at p367)
The woman from Melbourne is not identified in any way. Note also that there is no evidence that these men had previously discussed the fate of LE Anh Tuan or his mother. As will emerge, the witness gives a more detailed account at committal which qualifies these already vague words.
In several statements Dinh Minh also detailed the following:
- he knew of Phuc previously in Kai Tak camp in Hong Kong in the 1980s;
- he met him again in March 1996 on one occasion, being 9 March 1996;
- he carried $10,000.00 to Vietnam for Phuc on 10 March 1996;
- some time after June 8 1996 Phuc telephoned him again;
- Phuc asked the witness to assist in importing goods;
-Phuc asked the witness to assist a man named Johnny in July by lending Johnny his car, and to cultivate Johnny;
- Johnny also telephoned the witness in relation to importing goods;
-in the days preceding 12 August 1996, Johnny, like Phuc, made telephone calls relating to the imminent arrival of a consignment of goods;
-he identified Johnny from a photo of NGUYEN Cuong Manh, a name which may be used by the suspect BUI Tai Huu; this identification has yet to be tested.
At the Committal, however, Dinh Minh's position was plainly qualified, as follows:
-Phuc's actual demand was to perform a task "otherwise I have to return his money or pay for the damage" [p87/13];
-Dinh Minh having heard rumours of Phuc's involvement in the Melbourne matter, said "... I did ask him whether he did it or not and no comment" [see passages p87/20 ‑ 88/9];
- "So he did not say that he had done it?---No".
At best, this evidence shows that Phuc in August has some knowledge of the kidnapping.
In summary, the witness does not ultimately say that Phuc confessed to kidnapping or killing Le Anh Tuan (see Committal p87/11 to p88/19). Further, the witness does not identify the voice of the caller as that of the accused (see Committal p85/21 to p87/10); or alternatively, the identification is so weak as to have little probative value.
The cumulative effect of these passages is very important. It is submitted that Dinh Minh's evidence is not a confession at all.
The Prejudice
The evidence is severely prejudicial in the illicit sense:
-it illicitly supports Mrs Ha's account of Phuc's drug-importing proposal, where there is no other evidence of drug involvement;
-it illicitly puts a drugs cast upon many other pieces of evidence – the money transfers, the travel arrangements, the telephone-use patterns;
-it will inevitably associate Phuc with a trade believed (with reason) to be vicious and indifferent or hostile to human life and dignity;
-it will create a climate of heightened emotion not amenable to judicial direction;
- and it is possible to multiply the heads of prejudice ad infinitum.
It would need to be extremely probative to be admitted.
How does the Crown seek to use this evidence on the Murder trial?
There seems to be three bases upon which the Crown would lead this evidence:
As evidence of a confession or admission regarding the April kidnapping.
As evidence that Phuc pursued a strikingly similar course of conduct in dealing with the witness as he did with Mrs HA during the kidnapping, rendering her account less unlikely; such evidence being admitted only once examined pursuant to section 398A of the Crimes Act 1958, as analysed in R v Best [1998] VICSC 125 (23 July 1998).
Finally and more broadly, as evidence of association between Phuc and the suspect BUI Tai Huu - again, pursuant to s.398A and Best.
Each of these will be dealt with below.
In response
If this evidence is relevant, it is only slightly probative. It is plainly prejudicial in the most extreme form known to the law. We submit that, on either basis, it should be excluded.
The witnesses account is not evidence of a confession or admission.
It is submitted that the evidence does not amount to a confession. Even the "woman from Melbourne" statement, unqualified by the committal, did not amount to a confession. Given the committal context, it is submitted that this conclusion is the appropriate one.
If it is capable of amounting to a confession, it is thin compared to the prejudice. The exercise of the Christie discretion is respectfully sought.
The witnesses account is not evidence that Phuc pursued a strikingly similar course of conduct in dealing with the witness as he did with Mrs. HA
Admitted for this purpose, this evidence would be propensity evidence of the "similar fact" variety.
The Crown may in an appropriate case lead such evidence pursuant to s.398A of the Crimes Act 1958. But the Court, before admitting this evidence, must be satisfied that the probative force of the evidence "clearly transcends its merely prejudicial effect" - see R v Sutton (1984) 152 CLR 528 at 547 per Brennan J. Further, where the evidence is of a "similar fact" nature, the prejudice will be great - see R v Tektonopoulos [1999] VICCA 93 per Winneke P. To be admitted, this evidence must be powerful.
It is not. There are few real similarities or "hallmarks" in this case. Phuc, it is said, demanded that his Vietnamese victim assist him to import heroin, on penalty of harm to their family. There are three difficulties in calling this strikingly similar.
First, the hallmarks or similarities are few in number, and somewhat superficial.
Secondly, there are also marked dissimilarities -
in the nature of the victim:
- HA was a high-flying commodities trader with overseas trading connections; she was unknown to Phuc;
- Dinh Minh was unemployed, with no such resources, and he knew Phuc, and that fact was known to others.
in the mode of approach:
- HA was approached in person, in great secrecy;
- Dinh Minh by telephone, evidently thought by Phuc a most unsecure medium.
in the nature of the demand made:
- HA was told explicitly to import heroin;
- Dinh Minh was not.
The evidence discloses no striking similarity of the type found in the ruling of Vincent J in R v Camilleri [1999] VSC 159 (16 February 1999). There the accused displayed a large number of personalised sexual freaks and unusual and irrational traits. Common themes between the incidents existed - for instance, reference to "the bridge". Moreover, the evidence there was admitted for a number of purposes, and partly to rebut a defence that the co-accused Beckett acted without Camilleri's authority.
Secondly, the Crown's "hallmarks" in this case assume the guilt of Phuc. That is not permissible - see R v Cogley [1999] VSCA 123 (17 August 1999). In that case Buchanan J said at paragraph 19:
"His Honour catalogued what he called 'hallmark features' of each incident, which largely assumed the applicant's involvement in the commission of both offences. His Honour said that according to the Crown in each case the applicant turned on a friend or associate in a dramatic over-reaction to some slight, he used a gun of the same calibre, the events occurred in the presence of witnesses and the applicant assumed a dominant role and Stamenkovic a lesser role. Apart from the use of a gun of the same calibre and the presence of witnesses, the hallmark features assumed the applicant's guilt of both charges. That is not permissible" [emphasis added].
His Honour made a similar point in R v Cahill [1999] VSC 84 at paragraph 16.
The test under s.398A is flexible, but still serves to protect the fair trial of the accused. In R v Best [1998] VICSC 125 (23 July 1998) Callaway JA said:
"The probative value of propensity evidence depends on the kind of propensity evidence that it is. Similar fact evidence may have probative value for the reasons mentioned in Hoch v. R at p.295. Relationship evidence may have probative value for quite different reasons. See, for example, O'Leary v. R (1946) 73 CLR 566 at p.577 and Wilson v. R (1970) 123 CLR 334 at p.344. The risk of prejudice also varies greatly from one kind of propensity evidence to another. The test in s.398A(2) is flexible. It applies whatever the reason that gives the evidence its probative value and whatever the nature of the prejudice that is apprehended. The flexibility of the test in sub-s.(2) means that, properly applied, it will not greatly alter the conduct of criminal trials. Propensity evidence will be admissible whenever it is just to do so "in all the circumstances". Those circumstances will sometimes include the impossibility of conducting the trial in a sensible fashion unless the evidence is received. Its probative value is correspondingly high. Similar fact evidence will still be received with great caution because, as McHugh, J. pointed out in Pfennig's case at p.530, the risk of prejudice is ordinarily at its highest in such cases."
Again, we submit that, if this evidence is relevant as similar fact, it is thinly probative. The Crown case is perfectly intelligible without it.
As to prejudice, this evidence would be most damaging, in an illicit manner, to Phuc. This will be a long trial, featuring complex circumstantial evidence and numerous judicial directions to the jury at its end. The allegations will engender strong feelings. A fair trial on the kidnap and murder would be severely compromised.
The witnesses account is not evidence of association Phuc - BUI Tai Huu.
The Crown may in appropriate cases lead evidence, otherwise inadmissible via the propensity exclusion, which explains or makes realistic a relationship important to a charge - in this case, the kidnap and murder of the deceased on April 29, 1996 and the days following.
But Dinh Minh's evidence is not relevant to those crimes, and does not satisfy the admissibility requirements in s.398A.
(a) the evidence of association is irrelevant to a crime thirteen weeks ago.
If PHUC knew BUI Tai Huu in August, that is not relevant to prove association prior to the April 29 1996 kidnapping.
The status of BUI Tai Huu as a co-conspirator to the kidnapping is contested. In particular, the evidence is poor or absent as to the following facts asserted by the Crown:
- BUI Tai Huu was in contact with PHUC directly, or indirectly;
- or the accused VAN, directly or indirectly;
- in March, in April or in May;
- BUI Tai Huu participated in the kidnapping and/or the murder.
(b) The evidence of association is weak or non-existent.
The evidence does not connect Phuc to Nguyen Cuong Manh (possibly BUI Tai Huu) in the July-August 1996 period, save as someone to cultivate. The evidence that the witness properly identified NGUYEN Cuong Manh has yet to be tested.
Again, the illicit prejudice would be severe.
General comments upon the probative value of this evidence.
If the evidence is relevant on any of these bases, it is submitted that it is slightly probative only. Apart from the matters above, other matters affect the cogency of the evidence.
First, the evidence is not at all strong that the caller is the accused man PHUC. The witness did not recognise his voice on the telephone and noted nothing beyond the speakers stated name of "Phuc" upon which to proceed.
Secondly, the witness, an accomplice who must testify or be re-sentenced, would be the subject of a strong judicial warning.
Conclusion
If the evidence has some probative value on any of the bases outlined above, the evidence should still be excluded, either pursuant to s.398A or on a Christie basis.
ANNEXURE B
GENERAL SUBMISSIONS
As the evidence discloses other criminal activities, the Crown accepts that the onus is on ourselves to establish its admissibility.
Further, the Crown accepts that in showing other criminal activity the provisions of s.398A of the Crimes Act 1958 is applicable and that the evidence is only therefore admissible if it is just to do so.
This involves a value judgment according to law - which will primarily be determined by the probity/strength of the evidence sought to be led which is relevant to a fact in issue in this trial.
This is a circumstantial case against the procurers of the commission of two appalling crimes. It follows that the procurer was not present at the scene of these crimes. Any acknowledgment, however, by the procurer that he was involved in these crimes - it is submitted is powerful evidence, if not in fact the best evidence, against a procurer of accepting complicity in the enterprise.
The statement by Phuc to Nguyen Dinh Minh both in terms of its context and timing would in our submission be capable of being used by a jury as showing acknowledgment by the procurer - that he was not only involved (and that alone would be sufficient) but in the circumstances of Phuc's statement responsible for such crimes.
Ordinarily a statement of such nature would readily be admitted for the jury's consideration.
The fact that such a statement was made in the context of committing another criminal act - does not diminish its potency or probative force. What is called into question here are competing interests which must be determined in accordance with the provisions of s.398A.
The Crown has withdrawn from this presentment the count dealing with this large scale drug importation.
However, the Crown is entitled to prove this acknowledgment by Phuc of his complicity. (It thus can be presented in this trial as another piece of circumstantial evidence - a powerful piece of circumstantial evidence).
The statement by Phuc to Nguyen Dinh Minh is capable of such an acknowledgment.
Accordingly, its probative value clearly transcends its prejudicial value and it would be just to admit it.
As well the statement and actions by Phuc in connection with Nguyen Dinh Minh can be put on two further compelling grounds to make it just for its admission. Not only does it show:
(i) A confession, or acknowledgment, of complicity but it also shows:
(ii)The relationship and true nature of the transaction between Phuc and Ha Mai, and in particular makes Ha Mai's account more probable that this was not some innocent or innocuous business dealing.
(iii)Thirdly, the evidence points to the nature of the relationship between Phuc and Bui Tai Huu at a very relevant time (ie within 6 months) of this kidnapping. That Phuc several thousands of kilometres away - directing traffic through a mobile phone - has Bui Tai Huu as "his man on the ground".
We will briefly go to the law and then go into the facts.
The Law - We are aware Your Honour is familiar with this area of the law - but for the purpose of the transcript in this trial believe it prudent to encapsulate and outline the main features and structures of the law in this area.
We will then proceed to deal with the facts.
The Law.
(i) Submissions made re Camilleri.
(ii) Just to admit it - just to both sides - see Toohey p.507 in Pfennig.
"Evidence that an accused has committed other relevant offences must inevitably have a prejudicial effect. But, in the language of Director of Public Prosecutions v. P., it may nevertheless be 'just' to admit the evidence. The reference to just aptly conveys the notion that it is not only the interests of the Crown and the accused that are involved. The legitimate interests of the Crown and of the community cannot be overlooked. The admissibility of the H. incident depends upon it possessing those features identified in Hoch. Unless it does, the evidence is not admissible. If it does, the evidence may be admitted notwithstanding its prejudicial effect if the trial judge considers it just to admit the evidence."
GROUND ONE
The admissions/acknowledgment by Phuc are quite clearly capable of being used by a jury as an acknowledgment of his involvement in these crimes and it is thus a powerful piece of evidence against him and accordingly should be admitted.
GROUND 2
Relationship evidence can demonstrate that the association is not an innocent one or one of being normal business deal. Clearly open for defence to allege Ha Mai not dealing in drugs with Phuc or any matter involving drugs with Phuc - that it was just legitimate business dealings between Phuc and Ha Mai - that it has nothing to do with drugs and therefore far less likely since not to do with drugs to involve anything to do with violence, kidnapping and death thereafter.
The other side of the same coin is that it makes it far more likely Ha Mai's account is accurate - that it was a matter involving drugs. That the relationship concerning the $400,000 did not evolve out of any legitimate business deal.
(i) See case of Best p.606.
"Relationship evidence is different in that last respect but, like similar fact evidence, its probative value also varies from case to case. Sometimes it is necessarily led to make a complainant's account intelligible. On other occasions it negates accident or establishes motive."
See B v. Q (1992) 175 CLR 559 at 618 - Dawson and Gaudron – "When evidence establishes a relationship which is not of an innocent character."
(ii) See Best pp.611-612.
"I return briefly to the meaning of '[p]ropensity evidence' in subs.(2). I said earlier that the legislature is taken to have intended that expression in the broader of the two senses explained by Mason CJ, Deane and Dawson JJ. in the opening paragraph of their judgement in Pfennig's case. See also 513-14 per McHugh J. In expressing that view I am not taking sides in the controversy as to whether the Pfennig test applies to relationship evidence. Compare R v. Ritter with R v. Wackerow [1998] 1 Qd.R. 197.That is a controversy into which this court need not enter. Our task is to construe s.398A. It must, however, be pointed out that the difficulties of applying the Pfennig case to relationship evidence do not apply to the test in subs.(2). So long as the qualifications expressed earlier are not forgotten, it is appropriate that any division of propensity evidence be inadmissible unless its probative value makes it just to admit the evidence despite any prejudicial effect it may have on the accused."
Of course as presently interpreted s.398A has not altered the law very much - however, Harriman's case was before s.398A and certainly if s.398A does anything it "lowers the bar for the Crown".
·Not dealing with similar fact at all.
·Relevant fact in issue of what was the (business) relationship between Mai and the accused.
·See Harriman.
HARRIMAN
CHARGE - Importing heroin April 1987.
Martin and Accused - Thailand
- Travelled together Chang Mai
Martin to London - Posted heroin to Australia.
By Whole Court
Evidence of accused's prior involvement with Martin in sale of heroin - highly probative of the criminal character of accused's association.
Refutes - innocent business explanation.
(i) H.C p.59-596.
"Evidence of prior involvement by Harriman and Martin in the sale of heroin in association, evidence (from the witness Lisk) of prior sales of heroin by Harriman and evidence of Harriman's use of heroin were clearly prejudicial and were not admissible unless something more that the commission of prior offences was thereby revealed. In my opinion, more was revealed. The concatenation of these pieces of evidence showed that Harriman, prior to April 1987, had participated repeatedly in one role or another in heroin dealing in Western Australia. He had participated in a trade notorious for its clandestine organization, the creation of distribution networks of dealer-users, the payment of large sums of money enforced (if need be) by vicious measures, and the urgent demand by addicts for sources of supply."
"In determining whether or not evidence of participation can support such an inference, regard must be had to the extent and duration of past participation, the proximity in time between the past participation and the offence charged and the whole of the circumstances of the case."
(ii) Dawson 597
"It was not so much the similarity of the previous dealings which was important as the nature of the association to which those dealings pointed."
(iii) Toohey 609
"Now it is true that such evidence was also likely to demonstrate a propensity on the part of the applicant to engage in heroin trafficking. But the evidence went beyond that. It was relevant to the character of the association between the applicant and Martin and was admissible for that reason, though, questions of prejudice aside, possible misuse of the evidence by the jury required that its purpose be explained with some care to them."
(iv) McHugh 630, 632.
"Evidence relating to the accused and the alleged victim ("the relationship cases"), although revealing other criminal conduct, will frequently be admissible because it tends to prove how or why the conduct the subject of the charge arose or because it makes it more probable than not that the conduct occurred at the time or place or in the way alleged. In "the relationship cases", evidence of previous acts is admissible not to show a general criminal disposition but to show the nature of the relationship between the parties."
"Moreover, evidence may be admissible, although disclosing criminal conduct on the part of the accused, because it tends to corroborate the truth of part of a witness' evidence."
(v)The fact that the propensity evidence sought to be adduced in this case is evidence of a subsequent relationship, as opposed to a previous relationship, does not rule out its use. The fact that it is evidence of a subsequent relationship may result in less weight being afforded to it than what evidence of a previous relationship would have resulted in. However, the weight to be afforded to the evidence will ultimately depend on the particular evidence which is sought to be adduced in light of all the circumstances of the case.
R v. Beserick (1993) 30 NSWLR 510 at 521
S v. The Queen (1991) 5 WAR 391 at 393, 398 & 410.
Thompson v. The Queen (1989) 169 CLR 1 at 15.
Arguments so far:
(i)First, acknowledgment of being involved - capable of that interpretation - just to admit it.
(ii)Supports Ha Mai's account that this was a matter evolving out of a drug matter - that it was an unusual situation and not some normal legitimate business dealing - which would ordinarily not attract such violent means as kidnapping and certainly murder.
(iii)Finally, it's admissible to show the relationship between two persons to joint/enterprise Phuc and Bui Tai Huu at a most relevant time.
Same legal considerations apply to this ground.
FACTS
GROUND 1 ‑ Acknowledgment of complicity/procurer in these crimes
"Phuc became angry with me and he said ... I had to do what he instructed. If I do not my life will mean nothing and will be finished. He said that if I accept the instructions no harm will come to me and my family ... I believed Phuc would genuinely carry out his threats because he said to me 'look at the example from Melbourne. The woman there resisted our proposals and instructions so she had to collect all the bad results of the consequences'." (see statement at p.367).
(i)Considering the Crown alleges Phuc a procurer it highlights that very role - not talking of doing act himself - specially of kidnapping or killing boy - rather focuses in on the woman.
She "resisted our proposals and instructions".
(ii)Further, Crown case that this was a collective plan - not talking of 'I' but of "our proposals".
(iii)"Collect all the bad consequences". Very similar to threat to Ha Mai. See p.380 - (at top).
(iv)The very nature of the context of the Nguyen Dinh Minh conversation.
Phuc putting pressure on persons who might import drugs into Australia with other goods - and who might be having second thoughts. - Your family will "collect all the bad consequences".
(v) As to any suggestion Phuc talking about something else - this is nonsense.
Matter in question received widespread publicity - in fact saturation - front page for several days.
Nguyen Dinh Minh himself talks of it being in the Vietnamese papers - it was a "hot topic".
The matter received considerable further publicity when the boy's body was found on 7 June 1996.
Nguyen Dinh Minh says Phuc's conversation happened early August (8th).
No suggestion - statement - topic talked about before.
Phuc must have been referring to something quite well known.
(vi)Nguyen Dinh Minh acknowledged truth of his statement at the committal (and has confirmed this to police recently).
(vii)There may be other confessional material - as Nguyen Dinh Minh says specifically that at some stage (unknown) "I did ask him whether he did it or not and no comment" (by Phuc) - i.e. silence in response to allegation expect to refute.
(viii)It should be pointed out there was some controversy as to if the interpretation - dealing accurately with Nguyen Dinh Minh's evidence during cross-examination.
(ix)In any event - there are really credit issues - one Nguyen Dinh Minh - acknowledges truth of his statement - that is enough.
Brief Chronology
Importation on 12.8.1996.
Nguyen Dinh Minh arrested on 12.8.1996.
Sentenced on 19.9.1997.
4 years 6 months - minimum 2 years 6 months.
Judge noted 2 years reduction for assistance to authorities - including this matter.
Large scale importation $24,516.0. See deps. 2815.
GROUNDS 2 & 3
Throws into stark relief the nature of the relationship.
Phuc very smart international drug dealer.
Meets someone, innocent or not so innocent.
Often outside his normal circle.
Only sees them one or two times physically.
Remainder directs by phone - thousand kilometres away ‑ uses Bui Tai Huu - as man on the ground in relationship between joint enterprises very relevant times.
Phuc the puppeteer pulling the strings from thousand kilometres away.
Go to Ha Mai.
386
388
389
p.380
Not similarities as such but a pattern of behaviour at relevant times. Note Brennan/Harriman p.595 - last 10 lines.
Also
16/3/96 - Ha Mai - meets Phuc
Proceeds/threats/kidnapping - refuses drug deals - threats - no drugs into Australia via Ha Mai - kidnapping 29.4.1996.
Body found 7 June 1996.
Three months unsuccessful - trying to use Ha Mai - now tries Nguyen Dinh Minh.
Trying very hard, Ha Mai.
8/6/1996 - Nguyen Dinh Minh re-enters Australia - within three month period - how Phuc uses Nguyen Dinh Minh.
See Nguyen Dinh Minh statements.
(i) p.366
(ii) p.368
Same general patterns - at close proximate times. Trying to get drugs in.
Further, as to this third reason for its admissions - relationship
- joint enterprise
- participants
Shows relationship between Phuc and Bui Tai Huu at a relevant time and their intimate relationship.
Bui Tai Huu DNA on kidnapping scene etc. - likely kidnapper etc.
See statement of Nguyen Dinh Minh - p.369 and 370 - re Johnny (B.T.H.).
See statement of Makran.
See also statement of Metz.
See also further statement of Nguyen Dinh Minh identifying photographs at p.373A - at the second photograph identify was similar to the brother of Bui Tai Huu, namely Bui Quang Thuan.
Finally see statement of Nguyen Dinh Minh where he explains the role that Johnny (Bui Tai Huu) played in the matter, p.377A, 377C.
CONCLUSION
Flexible test - s.398A – "Is it just to admit it"
Considerations - "Just to both sides".
Acknowledgments/confession by procurer - powerful evidence involved in that enterprise - this alone makes it "just to admit it" - very probative.
Also in terms of context and timing;
- strongly supports Ha Mai account.
- clothing, through drugs, refuse, threats/violence against family.
(Crown not told by defence as to what business arrangement it was between Ha Mai and Phuc).
Thirdly throws real light on relationship at relevant time between joint participators Phuc and Bui Tai Huu - whose DNA was found at kidnap scene. Overall clear value judgment just to admit it.
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