The State of Western Australia v Nguyen [No 2]
[2015] WASC 38
•28 JANUARY 2015
THE STATE OF WESTERN AUSTRALIA -v- NGUYEN [No 2] [2015] WASC 38
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 38 | |
| Case No: | INS:188/2013 | 24 APRIL 2014 | |
| Coram: | CORBOY J | 28/01/15 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Electronically recorded interview to be edited | ||
| B | |||
| PDF Version |
| Parties: | THE STATE OF WESTERN AUSTRALIA QUOC NGUYEN VAN THO NGUYEN |
Catchwords: | Criminal law Whether statements made by an accused to the police were relevant Whether prejudicial effect of the statements outweighed their probative value No new principles |
Legislation: | Nil |
Case References: | Gipp v The Queen [1998] HCA 21; (1999) 194 CLR 106 HML v The Queen [2008] HCA 16 Nudd v The Queen [2006] HCA 9 PES v The State of Western Australia [2014] WASCA 96 The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232 The State of Western Australia v Nguyen [2014] WASC 235 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
AND
QUOC NGUYEN
VAN THO NGUYEN
Catchwords:
Criminal law - Whether statements made by an accused to the police were relevant - Whether prejudicial effect of the statements outweighed their probative value - No new principles
Legislation:
Nil
Result:
Electronically recorded interview to be edited
Category: B
Representation:
Counsel:
Prosecution : Mr R Wilson
First Defence : Ms L Black
Second Defence : Ms H Prince
Solicitors:
Prosecution : Director of Public Prosecutions (WA)
First Defence : Kate King Legal
Second Defence : G J Allen
Case(s) referred to in judgment(s):
Gipp v The Queen [1998] HCA 21; (1999) 194 CLR 106
HML v The Queen [2008] HCA 16
Nudd v The Queen [2006] HCA 9
PES v The State of Western Australia [2014] WASCA 96
The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232
The State of Western Australia v Nguyen [2014] WASC 235
- 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 two electronically recorded interviews with the police on 13 and 14 December 2012. He was charged following those interviews. He participated in a further recorded interview with the police on 30 May 2013. The interviews and the circumstances surrounding the death of Mr Proud are briefly summarised in The State of Western Australia v Nguyen [2014] WASC 235.
3 Mr Tho Nguyen has made admissions to the police in his interviews. Consequently, the State intends to play the recorded interviews as part of its case.
4 Mr Tho Nguyen has applied for an order that certain statements that he made in interviews be excluded from the evidence to be presented at the trial. Those statements were identified in a schedule attached to his application.
5 The State agreed that the interview should be edited to exclude a number of the statements identified in the schedule to the application. However, there was an issue that remained contentious concerning statements made by Mr Tho Nguyen to the police about Mr Michael Simpson.
6 Mr Tho Nguyen told the police that he had stayed at Mr Quoc Nguyen's house on the day that the deceased was killed. The deceased and Mr Simpson had come to the house. While they were at the house, Mr Simpson had asked Mr Tho Nguyen whether he remembered him from an incident that had previously occurred at a house in Maylands. Mr Simpson had said that he had pointed a shotgun at the head of Mr Tho Nguyen during the incident.
7 Mr Tho Nguyen told the police that he had recognised Mr Simpson from the incident, which had occurred sometime during 2011. He said that two men had come to the house where he was then living, knocked on the door and then threatened him with a shotgun. One of the men searched the house and took some documents and Mr Tho Nguyen's wallet. Mr Tho Nguyen did not explain why the men had searched the house, nor did he identify the documents that had been taken. However, he denied that the robbery was connected with drugs.
8 It was submitted in the schedule attached to Mr Tho Nguyen's application that:
The fact that the witness Simpson had met the accused before is relevant, but the details are not relevant to this case. The evidence is that the deceased and this accused had never met before. There is no evidence that this accused went to attack Simpson because of any prior incident. The prejudicial effect outweighs any probative value of this evidence.
This issue has the potential to deflect the jury from the issue to be determined, the accused's state of mind and intention in relation to the deceased and not Simpson. The jury may well speculate about the Maylands incident which is not connected in time or place to the events in issue.
9 That submission was reiterated by Mr Tho Nguyen's counsel, Ms Prince, in oral submissions. She stated that the incident involving Mr Simpson had allegedly occurred in March 2011 and that:
My concern is that the jury will be led to speculate about what Mr Tho was doing with being involved with Mr Simpson, why Mr Simpson is going around to his place some 18 months earlier and what is this all about. And given that it is clear on all the evidence, the State's case is very clear that Mr Tho did not know the deceased before this particular afternoon (ts 125).
10 The State contended in its written submissions that what Mr Simpson said to Mr Tho Nguyen during the afternoon prior to the fights in which the State alleges the deceased was killed forms part of the res gestae and was probative of Mr Tho Nguyen's state of mind.
11 I raised with counsel for the State, Mr Wilson, whether the state of mind to which the submission referred was fear; that Mr Tho Nguyen was frightened on recognising Mr Simpson because of the earlier incident. If so, that would be relevant to any issue of self-defence that might arise in the trial. Mr Wilson accepted that possibility and added that:
And in response to my friend's response about who was known to whom and who was fighting who, we say respectfully that is artificial. This is a fight involving four men and that Mr Tho volunteers or answers questions, obviously voluntarily, in his interview, he introduces this idea of the prior incident as he considers that it was relevant to his state of mind at least where he was giving his video interview and we do so, that it is probative of his state of mind that it could not be said otherwise, it must be relevant to his state of mind at the time that he considered one of these persons on a previous occasion had a weapon and held it to his head.
Now, the relevance of that, it may or may not work out this way at trial, but one can see this evidence as being relevant if it is relevant to state of mind which we say it surely is and highly probative of it, then that flows to the specific intent provisions within the different types of murder, it flows through to if self-defence is raised what his own belief was at the time (ts 127).
12 Criminal proceedings are adversarial in nature and counsel for a party has a wide discretion in deciding what issues to contest: PES v The State of Western Australia [2014] WASCA 96 [55[ (Pullin JA), and see, Nudd v The Queen [2006] HCA 9 [9] (Gleeson CJ). As the High Court observed in Gipp v The Queen [1998] HCA 21; (1999) 194 CLR 106:
A criminal trial under the common law system remains today as it has been for many centuries based on the theory that it is an adversarial contest between the Crown and the accused. Each party gathers its own evidence, tenders its own evidence and cross-examines the evidence of the opposite party. Each party selects the grounds upon which it relies and argues them without assistance from the court. For its part and subject to statutory exceptions, the court's role is generally limited to determining what legal rules govern the issues selected by the parties and which evidence and contentions of the parties are within those rules [51].
13 The adversarial procedure of criminal jurisprudence is bound up with notions of judicial independence and impartiality: The Queen v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [37].
14 Ms Prince advised that Mr Tho Nguyen does not, at present, seek to raise self-defence. Accordingly, it is not appropriate in my view for the court to direct that the State present evidence that might be relevant to a possible 'defence' over objection from the accused, at least where a forensic decision has been consciously made on apparently reasonable grounds. At this point it is for the State and Mr Tho Nguyen to determine what issues will be contested at the trial and, accordingly, what evidence is relevant to those issues.
15 Plainly, Mr Tho Nguyen's state of mind will be a relevant issue for the jury to determine. What the State must prove about his state of mind will depend on how the evidence emerges. The State may be required to prove Mr Tho Nguyen's intention and purpose or his knowledge of Mr Quoc Nguyen's intent and purpose or some combination of those mental states. However, it is difficult at this point to see how the previous incident between Mr Simpson and Mr Tho Nguyen is relevant to any intention to kill or endanger the life of the deceased or to cause him harm or to Mr Tho Nguyen's knowledge of Mr Quoc Nguyen's intentions and purposes.
16 Mr Tho Nguyen did refer in his interviews with the police to the exchange between himself and Mr Simpson prior to the fight in which the deceased was allegedly killed. However, he did so as part of the narrative of what had occurred that day and it was the police who returned to the incident at various points in the interview.
17 Mr Tho Nguyen did not suggest that he was frightened of Mr Simpson as a result of the previous incident and it was not suggested to him by the police that the incident was relevant to his state of mind prior to or during the fights that had allegedly occurred and in which the deceased was killed on the State's case. Mr Tho Nguyen did not indicate that it was relevant to his state of mind at that time.
18 Mr Simpson did not refer to the incident in his statement. He states:
He [that is an Asian male wearing a dark-coloured T-shirt and a pair of jeans] was introduced to me as some name starting with T. I can't remember his name. When I first saw this man he looked familiar to me. However, I could not remember where I'd seen him before. He said the same to me, that I looked familiar to him, but couldn't remember. He seemed an overly friendly person towards me, but I think it was just his manner (statement dated 14 December 2012, pars 56 - 58).
19 Mr Simpson does say that the deceased told him that there had been some 'dramas' in the past between the deceased and Mr Quoc Nguyen and that this had created some tension when Mr Simpson and the deceased entered Mr Quoc Nguyen's house. However, Mr Simpson did not suggest in his statement that there was anything between himself and Mr Tho Nguyen that could be relevant to what subsequently occurred.
20 I accept Ms Prince's submission that the evidence about the previous incident between Mr Simpson and Mr Tho Nguyen might be prejudicial, even if relevant. It may cause the jury to speculate in a way that is adverse to Mr Tho Nguyen. On the State's case as formulated by Mr Wilson the probative value of the evidence is slight if it is relevant. The potentially prejudicial effect of the evidence appears to outweigh its probative value on the material presently contained in the prosecution brief.
21 As Gleeson CJ observed in HML v The Queen [2008] HCA 16 [14]:
The concept of probative value involves relevance and weight. The probative value of evidence must be considered by reference to the purpose or purposes for which it is used.
In Pfennig v The Queen, McHugh J pointed out that the prejudicial effect and probative value are incommensurables.
22 Consistent with that observation, I have had some difficulty in determining this application on the material presently available and the parties' arguments formulated in advance of the trial. I will direct that the statements referred to in par 5(a) of the State's written submissions are to be excluded from the records of interview but I note that the position may change following Mr Simpson's evidence. It may be that the effect of his evidence is to make the relevance of Mr Tho Nguyen's statements to the police concerning the previous incident allegedly involving Mr Simpson more apparent and that the balance between the probative value of the evidence and its prejudicial effect consequently altered, possibly, in favour of the evidence being admitted.
23 I also note that it is accepted that evidence that Mr Tho Nguyen recognised Mr Simpson is admissible.
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