The State of Western Australia v Nguyen
[2014] WASC 235
•2 JULY 2014
THE STATE OF WESTERN AUSTRALIA -v- NGUYEN [2014] WASC 235
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 235 | |
| 02/07/2014 | |||
| Case No: | INS:188/2013 | 23 MAY 2014 | |
| Coram: | CORBOY J | 23/05/14 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application to permanently stay prosecution refused Trial dates set | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA QUOC NGUYEN VAN THO NGUYEN |
Catchwords: | Criminal procedure Application to adjourn prosecution Application to permanently stay prosecution |
Legislation: | Criminal Procedure Act 2004 (WA), s 90 |
Case References: | Austin v The Queen (1995) 84 A Crim R 374 Jago v District Court (NSW) (1989) 168 CLR 23 Lewis v The State of Western Australia [2008] WASCA 94 Myers v Myers [1969] WAR 19 Salmat Document Management Solutions Pty Ltd v The Queen [2006] WASC 65; (2006) 199 FLR 46 Wagner (1993) 66 A Crim R 583 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
QUOC NGUYEN
First Accused
VAN THO NGUYEN
Second Accused
Catchwords:
Criminal procedure - Application to adjourn prosecution - Application to permanently stay prosecution
Legislation:
Criminal Procedure Act 2004 (WA), s 90
Result:
Application to permanently stay prosecution refused
Trial dates set
Category: B
Representation:
Counsel:
Appellant : Mr R G Wilson
First Accused : Ms L B Black
Second Accused : Ms H Prince
Solicitors:
Appellant : Director of Public Prosecutions (WA)
First Accused : Kate King Legal
Second Accused : Graeme Allen Barrister & Solicitor
Case(s) referred to in judgment(s):
Austin v The Queen (1995) 84 A Crim R 374
Jago v District Court (NSW) (1989) 168 CLR 23
Lewis v The State of Western Australia [2008] WASCA 94
Myers v Myers [1969] WAR 19
Salmat Document Management Solutions Pty Ltd v The Queen [2006] WASC 65; (2006) 199 FLR 46
Wagner (1993) 66 A Crim R 583
- CORBOY J:
(These reasons were delivered orally and have been edited from the transcript.)
1 Quoc Tho Nguyen and Van Tho Nguyen are each charged that on 12 December 2012 at Ellenbrook they murdered Daniel Proud.
2 Mr Tho Nguyen participated in an electronically recorded interview with the police on 13 and 14 December 2012 (video record of interview ts 1 - 128). He admitted that he had stabbed Mr Proud. He was charged with murder on 14 December 2012.
3 The statement of material facts dated 17 December 2012 was apparently drawn from the admissions made by Mr Tho Nguyen. The facts alleged in the statement were that Mr Tho Nguyen and Mr Quoc Nguyen were present at a house in Ellenbrook on 12 December 2012. Mr Quoc Nguyen was the primary occupant of the house. Mr Proud and Mr Michael Simpson went to the house during the afternoon of 12 December to purchase drugs. Mr Quoc Nguyen supplied amphetamine to Mr Proud and Mr Simpson. They remained at the house to smoke the amphetamines.
4 An argument developed and the four men commenced fighting. Mr Tho Nguyen struck the deceased several times with a sword, inflicting two stab wounds. Mr Proud and Mr Simpson fled from the house to a car parked outside. However, Mr Proud collapsed by the car. Mr Simpson drove away, leaving Mr Proud lying on the road bleeding profusely. Mr Proud was taken by ambulance to the Swan Districts Hospital but died later that afternoon.
5 Mr Tho Nguyen was again interviewed by the police on 30 May 2013 (video record of interview ts 129 - 167). In the interview, Mr Tho Nguyen retracted the admission that he had previously made that he had stabbed Mr Proud. Mr Tho Nguyen claimed that Mr Quoc Nguyen had made promises to him about looking after his family if he admitted to stabbing Mr Proud. He further claimed that those promises had not been met and that threats had been made to his family.
6 Mr Quoc Nguyen was twice interviewed by the police on 13 and 14 December 2012 (video record of interview ts 168 - 232). Mr Quoc Nguyen stated in the first recorded interview that two men had come to his house in Ellenbrook and attacked him and Mr Tho Nguyen. The fight occurred principally in the living room of the house. However, one of the attackers went into the kitchen during the fight. That person came back into the living room, pushing past Mr Quoc Nguyen. The person was bleeding. Mr Quoc Nguyen did not describe how that person came to be bleeding.
7 Mr Quoc Nguyen was questioned in the second recorded interview by reference to what an unidentified witness was alleged to have told the police. The interview included the following exchange (video record of interview ts 228 - 229):
And furthermore we have a witness that states that you were observed to be in possession of that knife at the time of the incident. Can you explain that?---I don't know why he had say that.
And this witness also goes on to say that he observed you with that knife in your possession lunge towards the male that was injured?---I don't know whether it's the truth because I were hitting hardly [sic: hard] by that person and then I don't know what exactly - what has happened afterward.
Did you stab the male that was injured?---I don't know.
When you say you don't know - - -?---Because, like, I said I have been hitting so hardly I was in panic and I don't know what - exactly what has happened afterward. However, the fact that was - the fact was that when I fought back to the man I used my bare hand only.
Is it possible, as you describe, that in your panic you picked up that knife and stabbed the male that was injured?---I don't know.
Now, Quoc, you said that the male that attacked you ran out of the back room and into the kitchen?---Yes.
Is it possible he ran out of the room because he observed you with a knife, particularly that knife that we have a picture of, in your hand?---I don't know.
I realise you said that you panicked and you weren't really sure what happened?---Yes.
But is it possible that as you were trying to defend yourself, that you got a knife to use as part of that defence?---I don't know. I can't remember it clearly.
8 The prosecution brief contains two statements provided by Mr Michael Simpson. The first statement was dated 14 February 2012 (prosecution brief, pages 4 - 15). Mr Simpson stated that he went with Mr Proud to a house in Ellenbrook to meet with a person that he knew as 'Numb'. He had known that person for about five years and had purchased drugs from him in the past. He referred to the house that he and Mr Proud went to as 'Numb's place'. There was another Asian male at the house. Mr Simpson stated that:
He was introduced to me as some name starting with T. I can't remember his name (statement of 14 December 2012, par 57).
9 It is to be readily inferred from the two statements made by Mr Simpson that Numb was Mr Quoc Nguyen and that the other male present in the house was Mr Tho Nguyen. According to Mr Simpson, the four men smoked amphetamine from a glass pipe and there was a discussion about the possibility of purchasing heroin from Numb. Mr Simpson's first statement did not disclose how the discussion concluded nor did it refer to a fight or to the circumstances in which Mr Proud was stabbed.
10 Mr Simpson made a second statement on 25 June 2013. The statement was expressed to be a continuation of the statement made on 14 December 2012. Mr Simpson described negotiating with Numb over the purchase of heroin. Mr Tho Nguyen accused Mr Simpson of having previously 'ripped him off' and Mr Proud intervened. A fight developed between Mr Proud and Mr Tho Nguyen. Mr Simpson ran into the kitchen 'to get a weapon'. He was unable to find a weapon and returned to the living room where Mr Tho Nguyen and Mr Proud were still fighting. Mr Quoc Nguyen had then 'gone at' Mr Proud. Mr Quoc Nguyen had produced a 'fancy knife' by this time. Mr Simpson again went back into the kitchen in search of a weapon. He found a plastic knife that he took with him back into the living room. When Mr Simpson came back into the living room, he ran at Mr Tho Nguyen saying, 'Come on, fuckers, let's have a go'. According to Mr Simpson (Mr Simpson's second statement, pars 85 - 97):
Daniel still had Numb's wrists and Numb was still pushing his hands towards Daniel. The knife was still in his hand. I do not think the knife hit Daniel as his arms were stretched out as if to push Numb away from him. I don't think he could have reached Daniel. I saw Daniel skidding backwards straightaway and saw him hunch over. I said, 'Are you all right?' Daniel said, 'Get me to the hospital.' Numb was going off his head. We started to baulk each other off. I stayed in front of Daniel and manoeuvred backwards. I think the little fellow [a reference to Mr Tho Nguyen] was still on the ground behind Numb. I think Numb still had the knife, otherwise I would have gone at him. Daniel was backing off into the house and I saw him fall down near the couch. He fell down on white tiles near a white couch. I helped him up and I saw a fair bit of blood was coming from his abdomen area.
11 There were four other people in the house at the time of the incident - Hyojun Gee Kim, Hieu Thi Ly and two children. Ms Kim stated that she saw men fighting in the living area of the house, but neither she nor Ms Ly saw how Mr Proud was stabbed (prosecution brief, 94 - 107, 144 - 150).
12 Dr Cooke conducted a post mortem examination of Mr Proud. The report to the coroner gave as the cause of death penetrating stab injuries to the abdomen. The post mortem examination disclosed the Mr Proud had received medical treatment for two penetrating stab-type injuries to the front of the abdomen. The injuries had caused internal bleeding associated with cuts to the liver and two large arteries in the back of the abdomen. There were lesser injuries elsewhere, including two cuts to the left hand and a cut to the back of the upper part of the left arm.
13 It is apparent from the material contained in the prosecution brief that the prosecution will, most likely, establish at trial that Mr Proud died from stab wounds inflicted during a fight that also involved each of the accused and Mr Simpson. Accordingly, it is likely that the primary task for the jury will be to determine two issues: which of the accused was responsible for inflicting the stab wounds suffered by Mr Proud and whether the person who was responsible for the wounds acted in self-defence.
14 There may also be an issue concerning whether the State can prove that the stabbing of Mr Proud was a willed act and that his death was not an event that occurred by accident, having regard to Mr Simpson's statements about what he saw. However, the evidence of Dr Cooke on the wounds sustained by Mr Proud would appear to significantly assist the State in proving those matters.
15 The trial of the indictment was listed for 15 days commencing on 7 April 2014. However, the trial did not commence on 7 April. Rather, warrants for the arrest of various persons, including Mr Simpson, were issued. The matter was adjourned until the following day. The State applied on the following day for the trial to be adjourned to 14 April 2014 as the police had been unable to locate Mr Simpson. That application was granted.
16 The police had still not been able to locate Mr Simpson by 14 April 2014. The State applied for the prosecution to be adjourned to a status conference. That application was opposed. Further, the accused each foreshadowed an application for the indictment to be permanently stayed. The trial listing was vacated and the State's application and the foreshadowed applications by the accused were listed for hearing on 24 April 2014.
17 The State submitted that it would suffer a substantial injustice if its application for an adjournment of the prosecution was refused. The accused contended that (outline of submissions of Mr Quoc Nguyen, 23 April 2014, par 9):
[T]o proceed with the indictment in the circumstances will be an abuse of process due to the combination of the failure of the prosecution to enable this matter to proceed at trial and where it simply proposes that the matter be adjourned without any fixed date until it is in a position to bring this matter to trial, if at all.
18 It was said that the potential for abuse was to be considered in the context of the State's reliance on the evidence of Mr Simpson, the uncertainty as to his whereabouts and his apparent lack of cooperation with the State. The State was unable to say when the indictment might proceed to trial or what its case against each of the accused might be if the prosecution was simply adjourned to a status conference. The abuse was compounded by the fact that the State opposed the accused being granted bail.
19 It was not suggested that the tests for determining an application to adjourn the trial of an indictment should differ according to which party was the applicant. The relevant principles were identified by Miller JA in Lewis v The State of Western Australia [2008] WASCA 94 by reference to a passage from the judgment of Jackson J in Myers v Myers [1969] WAR 19:
To grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made but where the refusal of an adjournment would result in serious injustices to one party, an adjournment should be granted unless, in turn, this would mean serious injustice to the other parties.
20 The applications to stay the prosecution of the indictment were said to be made pursuant to s 76 and s 90 of the Criminal Procedure Act 2004 (WA). However, s 76 confers an express power on the Magistrates Court to stay a prosecution, whereas s 90 is concerned with the prosecution of a charge in a superior court.
21 Section 90 provides that:
(1) A superior court to which an accused is committed on a charge or in which an accused is indicted on a charge may at any time order that the prosecution of the charge be stayed permanently, if it is in the interests of justice to do so.
(2) On making such an order the court -
(a) may discharge the jury, if any, from giving its verdict on the charge; and
(b) may discharge the accused from the charge; and
(c) may make any orders it thinks fit, including orders as to bail and orders under Schedule 4, to ensure the accused and any witness are amenable to justice until -
(i) the time for appealing against the stay order has expired; and
(ii) any appeal against the stay order is concluded.
23 Plainly, the power conferred by s 90 is sufficiently wide to permit a superior court to stay a prosecution on the ground that it constituted an abuse of process. As McKechnie J observed in Salmat:
The power in s 90 certainly encompasses abuse of process. Clearly it is in the interests of justice to stay an indictment which is an abuse of process. However, the power given is wider than examples of abuse of process and may be exercised in an appropriate case whether or not the proceedings can be characterised as an abuse of process [39].
24 It is well established that delay in commencing or prosecuting criminal proceedings can constitute an abuse of process: see, for example, Jago v District Court (NSW) (1989) 168 CLR 23. Owen J analysed the effect of the various judgments delivered in Jago in Austin v The Queen (1995) 84 A Crim R 374. It is not necessary to refer to the detail of his Honour's analysis. It is sufficient to note two aspects. First, in circumstances where the applicant was charged in 1994 with sex offences allegedly committed between 1947 and 1981, his Honour considered that the most comprehensive statement of principle applicable to the case before him was that of Deane J in Jago at 60:
An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process.
25 Second, Owen J cited, with approval, four principles identified by Mullighan J in Wagner (1993) 66 A Crim R 583, 595:
1. It would be a rare case in which mere delay, even long delay, would lead to a stay in the absence of some evidence of actual prejudice to the applicant.
2. Abuse of process in this context is all about the risk of an unfair trial and what may be done about it.
3. Every case must be judged on its facts, with particular attention to any countervailing steps, such as procedural directions or warnings to the jury that may be taken before or during the trial, to deal with apprehended unfairness.
4. A fair trial is not the same as a perfect trial.
26 The State carries the onus of persuading the court that the prosecution of its indictment should be adjourned. The accused carry the onus of persuading the court that the prosecution of the indictment should be permanently stayed. The issue raised by each application concerns what should occur with the prosecution of the indictment having regard to the circumstances in which the trial was abandoned. That issue is to be determined according to the interests of justice and it is not necessary to focus upon who bears the persuasive onus to determine the issue.
27 The interests of justice in this instance requires the court to consider and balance various matters: the public interest in seeing that persons accused of committing criminal offences are brought to trial; the public interest and the interest of the accused in ensuring that the prosecution of proceedings are not oppressive; the public interest and the interest of the accused in ensuring that any trial of the indictment is fair and any other form of prejudice that might be suffered by the accused and which is not capable of being remedied by directions or some other procedural step.
28 In my view, it is in the interests of justice that the prosecution of the indictment be permitted to proceed at this time having regard to the following matters:
(a) The seriousness of the offence allegedly committed by the accused.
(b) The material in the prosecution brief apparently establishes that Mr Proud died as a result of being stabbed at Mr Quoc Nguyen's house. The primary issues to be determined appear to concern the circumstances in which Mr Proud was killed and which of the accused was responsible for inflicting the wounds that resulted in his death. Mr Simpson's evidence is obviously critical to the determination of those issues. The State’s case is not a circumstantial case; the issues to be determined on its case revolve around the direct evidence of Mr Simpson.
(c) The failure of Mr Simpson to answer his witness summons cannot be attributed to any fault on the part of the State.
(d) The events that are the subject of the charges are relatively recent. It was not, and it could not have been, suggested that the accused could not receive a fair trial due to any delay in prosecuting the indictment if the State's application was allowed and the accused's applications were refused.
(e) The trial of the indictment has not been previously adjourned or vacated.
(f) The only prejudice identified by the accused in allowing the prosecution of the indictment to proceed was the uncertainty created by the apparent disappearance of Mr Simpson and his seeming unwillingness to cooperate with the State. In my view, that uncertainty does not, at least at present, create an injustice that is incapable of remedy. A point will be reached where the prosecution will be required to decide whether to proceed with the indictment if Mr Simpson cannot be found. However, I do not consider that this point has yet been reached. As to the uncertainty surrounding Mr Simpson's evidence, the police obtained a statement from Mr Simpson that has been served as part of the prosecution brief. The State will, of course, be obliged to inform the accused should Mr Simpson indicate that the statement does not reflect the evidence that he would give at trial.
29 I further consider that it is in the interests of justice that the indictment now be listed for trial. Without expressing a view as to what might happen if the State is not able to locate Mr Simpson by the time of the relisted trial, fixing the trial date now adds some certainty to the position of the accused.
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