R v Truong No. Sccrm-03-267, Sccrm-03-306

R v TRUONG
[2004] SASC 106
Court of Criminal Appeal: Doyle CJ, Perry and Debelle JJ

DOYLE CJ: On the afternoon of 24 November 1999 members of the Nguyen family (including some of the spouses and children) gathered at the home of My Kim and his wife (Huyen Nguyen) to celebrate the arrival of Mr and Mrs Nguyen (senior) from Vietnam.
During the afternoon the appellant Thanh Ngoc Truong came to My Kim’s house with three other men. One of them was his brother, Tung Thanh Truong. The other two men were referred to as “the Vietnamese man and the Cambodian man”. They joined the party. Another brother of the appellant, Hung Thanh Truong was already there. He is married to Loan Nguyen.
A considerable amount of beer was consumed. During the afternoon, at one stage, about six people were sitting at a table drinking beer. Suddenly, Hung Thanh Truong hit My Kim with a beer bottle and a fight broke out. Three men were shot at close range. The men shot were Thuy Dinh Nguyen, My Kim and Tung Thanh Nguyen.
The appellant and Tung Thanh Truong fled the scene. The appellant was not found by the police for almost three years.
The appellant was charged with a number of offences, and was tried in the Supreme Court before a jury. The charges and the outcome were as follows:
1)     Attempted murder of Thuy Dinh Nguyen – jury unable to agree.
2)Shooting at Thuy Dinh Nguyen with intent to do grievous bodily harm – no verdict taken.
3)     Attempted murder of My Kim – guilty.
4)Shooting at My Kim with intent to do grievous bodily harm – no verdict taken.
5)     Attempted murder of Tung Thanh Nguyen – not guilty.
6)Shooting at Tung Thanh Nguyen with intent to do grievous bodily harm – guilty.
The Judge sentenced the appellant to imprisonment for ten years, and fixed a non parole period of seven years six months.
The appellant appeals against the conviction and against sentence.
Background
It is convenient to sketch the background, and some aspects of the incident, before coming to the grounds of appeal.
This was not an identification case. The appellant admitted being present when the shots were fired. He said he saw his brother Tung Thanh Truong holding a gun and shooting. The appellant denied having a gun in his possession or firing any shots.
The issue was whether the appellant shot one or more of the victims, or alternatively was a party to a joint enterprise or arrangement to shoot them, or an accessory to the shooting. The enterprise or arrangement relied on by the prosecutor involved his brother Tung Thanh Truong and possibly his other brother Hung Thanh Truong.
A significant background matter was evidence from My Kim that Hung Thanh Truong and his wife Loan Nguyen had not spoken to My Kim and his wife Huyen Nguyen for about three years. This was because of a dispute over land. On the other hand, the appellant said that he had not heard about any such dispute, by implication denying that might have been a motive.
On 24 November 1999, members of the Nguyen family went to Adelaide airport to meet Mr and Mrs Nguyen (Senior). Hung Thanh Truong and his wife Loan Nguyen were there with them.
My Kim said that he and his wife Huyen Nguyen invited those present to gather at their home. The invitation was extended to Hung Thanh Truong and Loan Nguyen. My Kim said he did this to “make my parents happy”.
My Kim gave evidence that Hung Thanh Truong, while at the house, used a mobile to make a phone call. There was other evidence to this effect.
The prosecution suggested that the phone call was made to the appellant, to get him to come to My Kim’s house. The appellant denied receiving a phone call from Hung Thanh Truong. The appellant said he worked for Hung Thanh Truong, and needed to speak to him to get instructions on work to be done during the morning in question. He thought that Hung Thanh Truong might be at My Kim’s house, and so went there looking for him. The appellant said that his brother Tung Thanh Truong was with him, because he needed someone to drive him there. The prosecution said that this explanation was false.
My Kim said that while at the house he said to Hung Thanh Truong that they should forget about the dispute, but the latter “didn’t say anything
In due course, the appellant arrived with his brother Tung Thanh Truong and the other two men earlier referred to.
My Kim said that he invited them in, but they would not come in. The appellant said that they waited outside because they wanted to see Hung Thanh Truong, not My Kim.
Then Hung Thanh Truong went outside and spoke to them, and the appellant and the other three men came in and joined the party, according to My Kim. The appellant said that he went in only because Hung Thanh Truong invited them to join the party. The prosecution suggested that a plan to attack My Kim and possibly others was discussed when they were outside, and before they joined the party.
The four men joined the party, and they sat around a table drinking beer with other people at the party, according to My Kim.
At some stage, according to My Kim, Hung Thanh Truong made a remark that might have been a reference to the dispute, and which the prosecution suggested may have served as a signal to the other two. Whatever the explanation for the remark, according to My Kim at that moment, and without any warning, Hung Thanh Truong, who was sitting next to My Kim, hit My Kim on the head or face with a beer bottle. My Kim fell to the floor. Apparently as he fell, or before he fell he “saw the other two open the shirt and – they open the shirt and draw the gun and shoot but at that time I was laying on the floor”. This evidence appears to have been taken as a reference to the appellant and Tung Thanh Truong. As he was getting up from the floor My Kim was shot in the back. He saw only one gun. This part of his evidence was rather unclear, but that is not surprising in view of what happened to My Kim.
The prosecution argued that when Hung Thanh Truong hit My Kim, that was the signal to the appellant and his brother to join in the attack, or that was the moment when they decided to attack, pursuant to the arrangement.
It was the prosecution case that My Kim was the main target of the attack. The jury, it was argued, must have accepted that because the appellant was convicted of attempted murder in relation to him. Thuy Dinh Nguyen was also shot in the back. It was argued that the inability of the jury to agree in relation to the charge of attempted murder relating to him reflected uncertainty about the intention to kill in relation to him. Thanh Tung Nguyen apparently came into the room as the fight started and was hit by a bullet that went through his upper arm and lodged in the wall of his chest. The conviction on the lesser charge of shooting with intent in relation to him was said to be explicable on the basis that the jury were not satisfied in relation to the charge of attempted murder, but were satisfied in relation to the lesser charge. This is, presumably, on the basis that My Kim was considered by the jury to be the main target.
The appellant and his brother Tung Thanh Truong both fled the scene. Hung Thanh Truong was still there when police arrived.
Not surprisingly, having regard to the suddenness of the incident and its nature, there were some conflicts in the evidence of the witnesses for the prosecution. There were some gaps and some weakness in the prosecution evidence. Only one witness (Huyen Nguyen, the wife of My Kim), said that she saw the appellant fire a shot and there were several reasons why the jury might not have been prepared to act on her evidence. Another witness, a neighbour, Than Ngoc Tran said he saw a bulge under the appellant’s shirt at the waistline, and what appeared to be a weapon. But no witness, other than Huyen Nguyen, definitely said the appellant had a gun or fired a shot.
The prosecution case, and the case on appeal, was that if the appellant did not fire the shots, he was a party to a joint enterprise, involving at least his brother Tung Thanh Truong, to attack the victims, the attack occurring in response to Hung Thanh Truong hitting My Kim, or at the moment when that happened.
The defence case was that there was no evidence of motive, the appellant having given evidence that he had no knowledge of the dispute with My Kim. It was argued that the prosecution case rested on the arrival of the appellant with his brother at the house, and the fact that he fled. As I have already mentioned, the appellant offered an explanation for his arrival. As to his fleeing, the point was made that he had been involved in an incident that clearly would involve the police coming to the scene and there were reasons why he might have fled even if he was not guilty of the offence as charged. There was no evidence that the appellant knew that his brother had a gun. Overall, it was argued that the basis for inferring a joint enterprise was weak.
Ground one
The first ground of appeal is that the verdict on count three and on count six is unsafe and unsatisfactory, in the sense that the jury, acting properly, should have had a reasonable doubt about the appellant’s guilt.
Ms Davey, counsel for the appellant, argued this ground on the basis that the jury could not have been satisfied beyond reasonable doubt that the appellant shot My Kim and the other two men. As I understood it, that submission was not disputed by Ms Davison who appeared for the Director of Public Prosecutions.
That means it is necessary to consider whether the jury could properly have been satisfied beyond reasonable doubt of the appellant’s guilt on the basis of a joint enterprise. In this respect the Judge left open to the jury, as a basis for conviction, their satisfaction beyond reasonable doubt that there was an arrangement between the appellant and at least Tung Thanh Truong, to take a loaded gun to My Kim’s house and to use it to kill the victim in question, or to shoot at the victim in question intending to do him grievous bodily harm, or an arrangement to take a loaded to My Kim’s house to assault the victim, the appellant foreseeing the possibility that the person with the gun (presumably, Tung Thanh Truong,) might commit the crime of attempted murder or shooting with intent to do grievous bodily harm. These bases were clearly explained by the Judge to the jury.
Several witnesses relied upon by the prosecution to implicate the appellant and Tung Thanh Truong in the attack on the victims, (although as I have said, it remained unclear who fired the gun), wrongly identified a photograph (exhibit P7) as a photograph of Tung Thanh Truong. During the trial it became clear that they were mistaken. In my view, while that was a matter that called for caution in relation to the evidence of those witnesses, it was not of itself of great significance.
My view is that when the evidence is considered as a whole, and allowing for the gaps and imperfections, it was well able to support a state of satisfaction beyond reasonable doubt that the shots were fired by the appellant or his brother, and that this was done pursuant to an arrangement between the two of them, and including Hung Thanh Truong, the hitting of My Kim by Hung Thanh Truong either being a signal to the other two or alternatively the event which precipitated the attack. The latter point reflects the fact that the arrangement might have been one to attack My Kim, and possibly others, if any trouble brewed between Hung Thanh Truong and My Kim. I do not agree that the gaps in the prosecution case, such as they were, were such that it was not open to the jury to be satisfied of guilt beyond reasonable doubt.
I have outlined the evidence already.
The appellant’s explanation for him travelling to My Kim’s house, looking for his brother, was rather unconvincing. The evidence about Hung Thanh Truong making phone calls, if believed, could support a conclusion that he was ringing the appellant and asking him to come. The evidence that the appellant did not accept My Kim’s invitation to come into the house, and came in only after speaking to Hung Thanh Truong, again is capable of supporting a conclusion that the appellant and Hung Thanh Truong were making an arrangement along the lines suggested by the prosecution. If the jury accepted that the shooter was either or both of the appellant or his brother Tung Thanh Truong, the fact that one or both of them had brought a pistol to the house was a telling point. Of course, the appellant might have been unaware that Tung Thanh Truong had a pistol, as he said in evidence. But it was open to the jury to reject that evidence. The circumstances of Hung Thanh Truong’s sudden attack on My Kim, and the firing of shots injuring My Kim and two members of the Nguyen family, are all capable of suggesting an attack on My Kim and other members of the Nguyen family, or any other members of the Nguyen family who might, as it were, get in the way. The falling out between Hung Thanh Truong and My Kim provided a possible motive for the events, even though the origin of the falling out was left unclear. I must say that, on the evidence, there seems to me to be little doubt that the shots were fired by the appellant or by his brother, and when one includes the other circumstantial evidence, I consider that there was a solid basis for the jury to reach the conclusion that it reached.
I consider that the jury’s inability to agree on count one is consistent with some uncertainty about whether there was any intention to kill in relation to Thuy Dinh Nguyen, and that is consistent with the verdict reached on count six.
I would reject this ground of appeal.
Ground Two
This ground complains about one aspect of the Judge’s directions in relation to joint enterprise.
The Judge directed the jury that they could convict the appellant if satisfied that there was an arrangement or understanding with Tung Thanh Truong to take a loaded gun to My Kim’s house and to assault My Kim, or one of the other victims in question; an attempt by one of the parties to the arrangement intentionally to kill the victim in question using the gun, and that the appellant foresaw the possibility that the other party might commit the crime of attempted murder using the gun.
In that context, referring to the first element of an arrangement or understanding to take a loaded gun to My Kim’s house, and the second element of an attempt by one of the parties intentionally to kill the particular victim using the gun, the Judge said:
“The second element is that there would have to be, in fact, an attempt by one of the parties to the arrangement or understanding intentionally to kill the particular victim using the loaded gun. If you found the first element proved you would probably have little difficulty in this case in having the second element proved”.
Ms Davey complained that the second sentence in that paragraph wrongly implied that satisfaction that there was an arrangement or understanding to take a loaded gun to My Kim’s house would make it easier for the jury to be satisfied that there was an attempt intentionally to kill the relevant victim. I do not agree. The Judge was doing no more than saying to the jury that the second element was a matter on which they might easily be satisfied, should they come to that element as a result of them being satisfied on the first element. The manner in which the Judge spoke did not imply any particular link between proof of the first element and proof of the second element.
Ground Three
This ground raises a further criticism of the Judge’s directions in relation to joint enterprise.
Ms Davey argued that when the Judge related his directions on the law to the facts, he invited the jury to engage in a process of reasoning by elimination. That is, by suggesting to them that they might exclude other persons as parties to the arrangement and as involved in the shooting, they could come to a conclusion, beyond reasonable doubt, that the appellant was a party to an arrangement of the kind in question and was involved in the shooting. Ms Davey submitted that this process of reasoning tended to elevate a lack of evidence implicating other persons to the status of evidence implicating the appellant. For example, the absence of evidence pointing to other persons as having fired the shot meant that anyone could have fired the shot. It could not be used to strengthen the case against the appellant.
I have read the relevant part of the summing up with care. I will not set it out here, because it is quite lengthy. It is true that in introducing this part of the summing up to the jury, the Judge made the point that there was no suggestion that any member of the Nguyen family was involved in any attack, no suggestion that any of their friends were, and no suggestion that the Vietnamese man or the Cambodian man were involved. But after that the Judge carefully reviewed the evidence for the jury, in an even-handed fashion. The introductory point that he made was an obvious one, one that would have occurred to any juror. I do not agree that the Judge’s directions tended to elevate a lack of evidence about the involvement of others into positive evidence of the appellant’s involvement.
I consider that the Judge’s directions were fair and appropriate.
Ground Four
This ground complains that in relation to joint enterprise, and the requirement that the appellant must have foreseen the possibility that his brother Tung Tranh Truong might commit the relevant crime using a loaded gun, the Judge did not remind the jury of the lack of evidence that the appellant knew a gun had been brought to the house by his brother. Ms Davey submitted that this was something that had to be clearly explained to the jury.
I consider that no criticism can be made of the Judge’s directions on the law. The only issue is whether he adequately reminded the jury about the evidence, such as it was, pointing to a conclusion that the appellant knew his brother had a gun and might use it.
It must have been obvious to the jury that there was limited evidence on that point. The appellant denied knowing that his brother had a gun. His brother was not a witness at the trial. In the nature of things, this was a matter on which the prosecution had to rely on an inference being drawn by the jury. At one point the Judge reminded the jury that to convict on the basis that the appellant was an accessory, they would have to reject the appellant’s evidence that he did not know that his brother was carrying a gun. In directing the jury in relation to the existence of an arrangement or understanding made before the event, the Judge reminded the jury that they would have to be satisfied that the appellant foresaw the possibility that his brother might commit the relevant crime against a particular victim using a loaded gun. That would necessarily imply an awareness that his brother had a gun with him. I agree that not much was said by the Judge on this point, but I do not agree that in this respect the directions were deficient.
Ground Five
The appellant gave evidence. At one stage, when referring to his evidence, the Judge said at [146]:
“In that event then you have got to decide whose evidence you accept and whose evidence you reject, where there are direct inconsistencies.”
The Judge was there referring to the evidence given by the appellant, compared with the evidence given by other witnesses.
Ms Davey submitted that the Judge here directed the jury that it was a question of whose version of events they preferred. She submitted that the jury did not have to decide whose evidence they accepted and whose evidence they rejected. If they were not satisfied beyond reasonable doubt of the appellant’s guilt, their duty was to acquit, and in particular it was not necessary for t hem to reject the evidence of the prosecution witnesses before they could properly acquit.

If the passage in question stood in isolation, there might be some force in that complaint. But it does not stand in isolation. There are other portions of the summing up where the Judge clearly and correctly directed the jury about the need for proof beyond reasonable doubt. The passage complained of does no more than bring home to the jury the need to give particular consideration to conflicting evidence, and in that situation, to the plausibility and reliability of the witnesses in question. In particular, at [167], and very close to the end of the summing up, the Judge reminded the jury that the prosecution had to establish each of the necessary elements beyond reasonable doubt, and that if they had a reasonable doubt “about the story told by the prosecution witnesses in relation to these events”, they should acquit.
I reject this ground of appeal.
Ground Six
This ground complains that the Judge failed adequately to warn the jury about the unreliability of three of the witnesses in view of their incorrect identification of the person showing in the photograph exhibit P7.
In the course of his summing-up the Judge referred specifically to the mistake made by these witnesses. The complaint is that the Judge did not give the matter sufficient emphasis. I disagree. It was for the Judge to decide to what extent he would emphasise the point, bearing in mind that as long as he has drawn the jury’s attention to the matter, it was ultimately for the jury to decide upon the significance of the point.
I reject this ground of appeal.
Appeal against sentence
The Judge sentenced the appellant on the basis that he had made an arrangement with his two brothers that the appellant and Tung Thanh Truong would go to My Kim’s house with a view to killing My Kim, and that one or both of them would be carrying a gun. It was also arranged or understood that if necessary they would assault other members of the Nguyen family, and would shoot at them if necessary.
The Judge was not satisfied that the appellant fired the shots that injured the victims. He sentenced the appellant on the basis that he was a party to the arrangement, but not the one who fired the shots.
The Judge explained the failure to agree on count one on the basis that it was likely that some jurors were prepared to accept the evidence of Huyen Nguyen that the appellant shot Thuy Dinh Nguyen, but that other jurors were not prepared to accept that evidence, or not prepared to accept that the appellant intended to kill Thuy Dinh Nguyen. Accordingly, the jurors were unable to agree on count one.
I consider that it was open to the Judge to so find, and to sentence on that basis.
The appellant maintained his innocence. He was not to be punished for that, but it meant that the Judge was not able to reduce the sentence on account of remorse.
The injuries to the victims were potentially very serious, but fortunately both of them made a good recovery. However, My Kim has suffered emotionally as a result of the experience, which is hardly surprising.
The appellant came to Australia as a refugee in 1990. At the time of the offences he was 33 years of age. He had a history of regular employment while in Australia. He had no significant convictions, and in particular none for violence.
The Judge referred to the seriousness of the offences. He made the point that family loyalty, to which he attributed the offences, could be no excuse for conduct like this. I agree. The taking of a loaded pistol to the house is a serious aspect of the offence and it indicates a degree of planning and premeditation. The offence cannot be regarded as an impulsive one.
The Judge sentenced the appellant to a single sentence of imprisonment for ten years, and fixed a non-parole period of seven years six months.
The appellant complains that the Judge should have deferred sentence until after the appellant had been re-tried on count one. The appellant also complains that the Judge was wrong to make the findings of fact that he made about the appellant’s involvement in the offence, until after the re-trial.
No one suggested to the Judge that he should defer sentencing until after the re-trial.
It was open to the Judge to proceed as he did, or to defer the sentence if he thought that was more appropriate. The Judge did not err in law in proceeding when he did. It must be borne in mind that it was a different Judge that was conducting the re-trial, and sentence was ultimately going to be passed by two different judges, if the appellant was convicted on the re-trial. Accordingly, the possibility of sentence being passed on the offences now under consideration before sentence was passed on the other charge (if the appellant were convicted) remained.
I reject the submission that the Judge was not entitled to make findings of fact. Whenever the Judge was to pass sentence, he had to make appropriate findings of fact. Those findings of fact could not turn upon the evidence at the re-trial, or on the verdict at the re-trial. Nor can I accept that the outcome of the re-trial could have any effect on the sentence to be imposed in respect of the offences in question. This is not a case in which it was possible to achieve the usually desirable objective of having the same Judge impose sentence in respect of all matters on which the offender was before the Court.
Ms Davey also submitted that the sentence was excessive. It was a heavy sentence for a man with the appellant’s background, but the offences were very serious. I cannot agree that the sentence is manifestly excessive.
I would dismiss the appeal against sentence.
Conclusion
For those reasons I would dismiss the appeal against conviction and the appeal against sentence.
PERRY J I agree that the appeals against conviction and sentence should be dismissed for the reasons given by the Chief Justice.
DEBELLE J: I agree with the substance of the reasons of the Chief Justice. I agree that both the appeal against conviction and the appeal against sentence should be dismissed

[2004] SASC 106

20 April 2004