Tiet v The Queen
[2006] WASCA 32
•2 MARCH 2006
TIET -v- THE QUEEN [2006] WASCA 32
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 32 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:75/2003 | 10 FEBRUARY 2006 | |
| Coram: | WHEELER JA PULLIN JA BUSS JA | 2/03/06 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | GIANG THANH TIET THE QUEEN |
Catchwords: | Appeal Criminal law and procedure Directions to jury Direction concerning exculpatory out-of-court statements Objection to admissibility of evidence Need for proper foundation Duty of counsel Foreshadowed or provisional ruling by trial Judge |
Legislation: | Evidence Act 1906 (WA), s 8(1)(e)(ii) |
Case References: | Mule v R [2005] HCA 49; (2005) 79 ALJR 1573 Tanner v The Queen [2001] WASCA 60 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TIET -v- THE QUEEN [2006] WASCA 32 CORAM : WHEELER JA
- PULLIN JA
BUSS JA
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : ROBERTS-SMITH J
File No : INS 230 of 2002
Catchwords:
Appeal - Criminal law and procedure - Directions to jury - Direction concerning exculpatory out-of-court statements - Objection to admissibility of evidence - Need for proper foundation - Duty of counsel - Foreshadowed or provisional ruling by trial Judge
(Page 2)
Legislation:
Evidence Act 1906 (WA), s 8(1)(e)(ii)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr K P Bates & Mr A D Sullivan
Solicitors:
Appellant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Mule v R [2005] HCA 49; (2005) 79 ALJR 1573
Tanner v The Queen [2001] WASCA 60
Case(s) also cited:
Nil
(Page 3)
- WHEELER JA:
Background
1 This is an appeal from the appellant's conviction of murder. The appellant was tried before a jury in May of 2003, and convicted on 15 May 2003. The prosecution case was broadly as follows. The deceased, Leo Le, aged 16, took a knife, which has been described as a "short samurai sword", to an Internet cafe in the early hours of the morning of 8 June 2002. He was a member of a gang known as the "Spider Boys". The appellant, then 20, was already at the cafe with two other friends. They were sitting on chairs either playing a computer game or watching each other play.
2 The deceased and a friend entered the cafe. The deceased attacked the appellant as he sat at his chair. The appellant was injured as a result of that attack, sustaining an abrasion just above his left elbow. Almost immediately, an off-duty police officer named Leahy tried to break the altercation up. He grabbed the deceased and pulled him away from the appellant. The deceased's friend then picked up the scabbard of the knife and hit Leahy on the forehead a number of times. The deceased and his friend ran from the area towards the front door. A young man standing by grabbed the deceased's friend and disarmed him of the scabbard.
3 The deceased had dropped the knife at some stage and the appellant picked it up and moved in the same direction as the deceased had gone. That is, it was the prosecution case that he had chased after the deceased, as the deceased was running away. There was a brief confrontation, the details of which were not entirely clear. It seems that no witness actually saw the blow by which the deceased suffered his fatal injury. The confrontation ended when Le was seen to step away from the appellant. Leahy grabbed Le and threw him to the ground and restrained him. The appellant stood in the same area, holding the knife.
4 In a lengthy videotaped record of interview, the appellant described the initial attack on him. He said that he had initially picked up the knife and ran after the deceased, intending to "slash" him. He said that he changed his mind about that when he got closer, but the deceased had then run at him and attacked him, punching him in the face with his fists. He said that he had then stabbed the deceased once somewhere on his torso, but he was not sure where.
5 The forensic pathologist found that the wound that caused the death had started just below Le's left nipple, went through his heart and into his
(Page 4)
- spine. The deceased also had three cuts on his left arm, one on his upper arm not far above the elbow, one on the forearm and one on the elbow itself. He had a small cut on the outside of the left middle finger and a small prick to his palm.
6 The appellant was said to be a member of a gang called the "M'Bros". There was available, but was not led at trial, evidence which I understand to be broadly to the effect that the Spider Boys and the M'Bros were hostile to each other, and that that hostility had resulted in attacks by members of one gang upon the other in the past. In the course of his videotaped record of interview, the appellant described some previous encounters with the deceased, which involved references to the "Spiders". Relevant questions and answers included these:
"Q. What is his name?
A. I don't know because my brother had a fight with him (indistinct) and he's with the Spiders so - he hate me and my brother.
…
[He later recalled that the deceased's name was "Leo".]
Q. You don't like him?
A. My brother don't like him but he used to get the Spiders to beat my brother up, so I stick up for my brother.
…
A. … this one time, you know. I was in Pot Black. They surrounded me.
Q. Who's 'they'?
A. Them guys.
Q. Spiders?
A. Yeah.
Q. What happened?
A. Then … [Leo's] older brother come up to me and he said to me - you know - I was talking to him, you know,
(Page 5)
- saying all this in Vietnamese and I go, 'Don't worry about it, just leave it', and then his brother got pissed off and chuck an ashtray at me.
- Q. Yeah.
A. Yeah so I chased him …
Q. Where did it hit you?
A. Right here. Still got the scar."
The grounds of appeal
7 By substituted notice of appeal, prepared by the appellant's then lawyers, and dated 28 June 2004, the grounds upon which the appellant sought to appeal were:
"1. The learned trial Judge erred in ruling that, if the defence cross-examined Crown witnesses as to the characteristics of the gang known as 'Spiders', the Crown would be entitled to lead evidence in relation to the gang known as 'Embros' [sic] .
2. The learned trial Judge erred in directing the jury that when considering the Appellant's video taped record of interview, 'you might be more prepared to give more weight to any admission he made than to things he said to exculpate himself…..' as such a direction undermined the Appellants [sic] right not to give evidence and had the tendency to lead the jury to disbelieve the Appellant's account to police as to his intention and belief that he was acting in self defence."
8 At the hearing of the appeal, the Court confirmed with the appellant, who was by then representing himself, that the substituted notice of appeal contained the grounds upon which he wished to rely.
Ground 2 - direction re videotaped interview
9 The direction complained of appears in the following passage (at t/s 684 - 685):
"As you are well aware, in this case the accused did not give evidence. I emphasise to you that an accused is under no obligation whatsoever to give evidence. That is because of the
(Page 6)
- presumption of innocence and the burden of proof being on the crown. Obviously if some kind of adverse inference was going to be drawn against an accused who chose to exercise his right not to give evidence, then that would be a serious erosion of the presumption of innocence and the burden of proof being on the crown, because it would be saying, 'Well, you're entitled not to give evidence. You're entitled not to say anything, but if you exercise that right we're going to be much readier to conclude that you're guilty.'
So it would be a denial, in effect, of that right. So that's why you must not rely in any way, must not take into account in any way the fact that the accused did not give sworn evidence in this trial as weighing against him at all. He's entitled to remain silent and to rely upon the onus upon the prosecution to prove its case beyond reasonable doubt. It is the right of every accused not to give evidence and if an accused chooses not to do so that fact cannot fill gaps in the prosecution case.
Now, you have seen on the video record of interview the police officers telling the accused that he did not have to answer any questions. That is the law and in the same way no accused, as I have said, is compellable to give evidence nor to call witnesses. The fact of the matter is here, as I say, although the accused has not given evidence he has given a statement out of court, in fact two of them, in the form of a video record of interview, one at the Cannington police complex and the other one at the Planet Internet Cafe. He also made a couple of other admissions which you will recall and to which I will refer later.
Where an accused has given an out-of-court statement such as the video record of interview, then the answers he has given are available to be considered by you and you should give such weight to them as you see fit, bearing in mind that you did not have the opportunity to observe him giving evidence or to hear the explanation tested in cross-examination.
Some things he said were admissions that he had done certain things and other things he said were exculpatory. That is that he had no intent to kill Leo Le, that he was acting in self-defence or that he had no particular intention in his mind when he stabbed Leo Le. You would take into account that people ordinarily do not admit things that are incriminating or
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- disadvantageous to them unless those things are true, but things that people say by way of excuse or to put themselves in a better light or to avoid responsibility for something, are often more likely not to be true but, of course, you must not assume this either way about the accused in this case but you should consider these human tendencies in light of your collective experience when evaluating what he told police in the video interviews.
You might be more prepared to give more weight to any admission he made than to things that he said to exculpate himself, but that is entirely a matter for you."
10 For completeness, I should note that in the opening part of his Honour's direction to the jury, he advised them that they were "the sole judges of the facts". He told them more than once that they could take "as much or as little notice as you think fit" of what his Honour said about the facts and the evidence. He also emphasised that they should not think from anything his Honour said that he was indicating a personal view of the evidence, or of what the outcome of the jury's deliberation should be. Later in his direction, his Honour reminded the jury of a number of passages in the appellant's record of interview.
11 This ground of appeal was drafted prior to the delivery of the decision of the High Court in Mule v R [2005] HCA 49; (2005) 79 ALJR 1573. At [21] of that decision, the High Court (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ) said:
"An observation by the trial judge that the appellant's out of court assertions, although disclosed in evidence by the prosecution's tender of the videotape, were not sworn testimony, that, unlike the admissions, they were not against the appellant's interests, and that the jury could give them less weight than the admissions, was proper."
12 His Honour's comments to the jury appear to me to be precisely in conformity with that observation. This ground of appeal must therefore be rejected.
The gang evidence "ruling"
13 Although what is complained of is a ruling, it is a ruling which must be understood as being of a provisional and preliminary nature. It came about in the following way.
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14 Some of the observations in the appellant's videotaped record of interview, concerning past fights and encounters between the appellant and his friends and the Spider Boys, were plainly capable of reflecting adversely on the appellant, some to a greater extent than others. On the other hand, his perception of the deceased as a member of a gang which was hostile to the appellant and his friends, and which had been involved in attacks in the past, was something which could go some way towards assisting the appellant in raising issues of self-defence and provocation. There was, by agreement between the prosecutor and the appellant's counsel, some editing of the videotaped record of interview.
15 Counsel for the appellant, however, foreshadowed that she would seek to cross-examine some of the prosecution witnesses in relation to matters which she described, in broad terms, to his Honour. The cross-examination, it was said, would be directed to confirming certain things which the appellant had said in his record of interview, to the effect that the deceased was a member of the "Spiders" and that the Spiders was a gang, the members of which had on occasion displayed a propensity for violence.
16 The prosecutor objected to this evidence on the grounds of relevance, but in the alternative suggested that if that evidence were to be permitted, it would be appropriate for the prosecution to be able to lead evidence, in general terms, that there was a gang known as the M'Bros, that the appellant was a member of it, and that the M'Bros and the Spider Boys were hostile to each other. That evidence was also described only in general terms. However, by way of illustration, the prosecutor read to his Honour a passage from a statement of a Mr Cassidy from the Bureau of Criminal Intelligence, which was to the effect that he was aware of two groups of predominantly Vietnamese males known as the M'Bros and the Spiders, that those groups had been involved in at least 15 violent confrontations since 1999, and that Mr Cassidy had had numerous dealings with members of both groups. He said that both were extended groups of friends and associates without a formal structure, and only acted in a cohesive manner in response to the threat posed to them by other groups, particularly by each other.
17 The learned trial Judge made what he expressed as a "ruling" at that stage. The effect of it was that he accepted that the appellant's state of mind at the relevant time was critical to the trial, and that what a person knew or believed about another would be relevant to their state of mind. It seems that was, in effect, conceded by the State. His Honour also accepted that that evidence would go to the disposition or propensity of
(Page 9)
- the deceased, which might tend to show whether or not the deceased was likely to act in a particular way. His Honour also considered that it was relevantly contextual or relationship evidence; by that, I understand his Honour to mean that it was evidence which might tend to explain what, without that context, would appear to be inexplicable. For example, it would assist the jury in understanding that the deceased's attack on the appellant, while apparently entirely unprovoked, was not quite such a random and inexplicable event as it may otherwise have appeared. His Honour therefore ruled, in my view correctly, that evidence as to the deceased's membership of the Spiders and evidence, in general terms, of the nature of that group, could be elicited by way of cross-examination.
18 His Honour also expressed the view that it would be incomplete and misleading to elicit evidence only of the existence and membership of the Spider Boys. As his Honour understood the evidence, the two groups really only had significance or meaning in relation to each other; that is, it appears to have been their hostility to each other which defined them as groups. His Honour was of the view therefore that if counsel for the appellant did cross-examine and elicit evidence in the way which had been foreshadowed, it would be open to the prosecution to adduce general evidence of the kind indicated concerning the nature of the M'Bros and the appellant's membership of that group.
19 His Honour noted that, were such evidence adduced, it would require a direction to the jury that the evidence went only to the relationship between the two groups to enable the jury to better understand the events which resulted in the death of the deceased and that the jury could not use such evidence to reason that the accused had a particular propensity and was likely therefore to have committed the offence charged. His Honour also emphasised that he would not contemplate evidence "extending to specifics" such as details of particular incidents between the two groups. His Honour then moved to a related topic and indicated his view that evidence of the kind foreshadowed by counsel for the appellant would not give rise to an issue as to the appellant's character: s 8(1)(e)(ii) of the Evidence Act1906 (WA).
20 The effect of that ruling appears to have been to dissuade counsel for the appellant from cross-examining the witnesses in the manner foreshadowed. In the end, no cross-examination about the Spider Boys, their membership and their characteristics took place. As a result, no evidence in relation to the M'Bros was led.
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21 It is my view that this ground must fail for three reasons, two of which are related.
22 First, although expressed as a "ruling", his Honour's observations can only have been provisional in character, particularly as regards the evidence which the prosecution would seek to lead. Precisely what evidence the prosecution might be permitted to lead would depend upon an assessment of the relevance and possible prejudicial force of that proposed evidence in the light of the evidence which was actually elicited relating to the Spider Boys. No such cross-examination having taken place, no occasion for a final ruling by his Honour arose. It is unfortunate, in that context, that the expression "ruling" was used, since it may have given counsel the impression that the issue could not be revisited. It would have been preferable for his Honour expressly to have left open that possibility.
23 Second, it is not possible to assess the relevance and impact on the trial (in terms of potential prejudice) of evidence the detail of which is not known. There was no such evidence led at trial, and there was no voir dire which would have established the detail of the proposed evidence. A ground which seeks to attack a provisional or hypothetical ruling of this kind is one which mistakenly attempts to shift responsibility for forensic decisions from trial counsel to the Judge. As I have noted, in the present case there seems to have been some possible mistake about what his Honour was asked to do. However, it is for counsel to decide how to examine or cross-examine. If, as a result of proper examination or cross-examination, there is then an erroneous ruling by a trial Judge which results in the admission of evidence which should not have been led, which evidence may have caused a miscarriage of justice, a proper foundation for an appeal will have been laid. Of course, an early provisional ruling will assist counsel in considering how to conduct a case, but it should not be regarded as final in the absence of the evidence which would provide a proper basis for a final ruling.
24 A not dissimilar point arose in Tanner v The Queen [2001] WASCA 60. In that case, the ruling, which I made at trial, was one which I expressly indicated was of a preliminary nature. It was an indication that if the appellant led evidence of his good character (that evidence having been indicated in very general terms by counsel for Tanner), I would permit the Crown to lead certain evidence which the Crown contended showed bad character. As a result of that indication, counsel for Tanner took the decision not to lead character evidence as part of the defence. The Court of Criminal Appeal said in that case, at [41]:
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- "There are inherent difficulties in this ground of appeal. In fact, the transcript discloses that her Honour made no final ruling concerning the admissibility of the Crown evidence of bad character. She merely expressed preliminary views about it. In the light of the views which she expressed, counsel for the defence took the decision not to lead character evidence as part of the defence. In a sense, that was an anticipatory tactical decision. It seems to us that no appeal point arises. The appellant was not denied a fair trial. He was not prevented from leading evidence of his own good character and the trial Judge had not yet exercised her discretion in respect to the evidence proposed to be led by the Crown."
25 The Court also observed, at [42] - [43]:
"It seems to us that there can be no proper exercise of a discretion to exclude evidence of bad character unless the trial Judge knows exactly what is the evidence of good character which is sought to be led on behalf of the accused. Ordinarily, that will involve actually hearing the evidence …
This stage was not actually reached. We do not know what evidence might have been led by or on behalf of the appellant as to his good character. We have not seen the material which the Crown foreshadowed that it would lead as to the accused's bad character."
26 For those reasons, the Court of Criminal Appeal described that ground of appeal as "misconceived". Although his Honour's ruling in this case was not expressly described a preliminary, it seems to me that similar considerations arise here.
27 It may be that if even a foreshadowed ruling is plainly erroneous, and if, in the particular circumstances of a trial, counsel has effectively no choice but to tailor the case accordingly, an appeal from such a ruling may succeed. That question is one I would leave open.
28 Third, in any event, so far as one can judge from the very broad and general description of the evidence, his Honour's ruling was correct. As counsel for the appellant rightly put to his Honour, the appellant's state of mind was a critical issue. It would be relevant to that state of mind, not only that the deceased was a member of the Spider Boys, but that the appellant was a member of the M'Bros, a gang towards which hostility had been directed by the Spider Boys in the past, and which, in turn, was
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- hostile to the Spider Boys. As his Honour recognised, evidence of that kind had potentially prejudicial, inculpatory and exculpatory elements. It might cause prejudice in the minds of some jurors by reason of the mere fact that the appellant was identified as a member of a "gang". It might adversely to the appellant, but properly, point to a conclusion that the appellant was more likely to take offence, and more likely to retaliate, when an attack was made upon him by a member of a hostile gang. However, it might also potentially point to a conclusion that the appellant would have some reason to fear a renewed attack upon him, as a member of the hated M'Bros, at a time when, to an outside observer, it seemed that all the deceased was doing was attempting to run away. His Honour took the view, in my view correctly, that a direction could deal with any potential prejudice, and that, if the issue of gang membership were to be opened up, the relevance of the existence of the M'Bros, and the appellant's membership of that group, was such as to make the evidence properly admissible.
Conclusion
29 I would therefore dismiss the appeal.
30 PULLIN JA: I have read the draft reasons prepared by Wheeler JA. I agree with those reasons and have nothing to add.
31 BUSS JA: I agree with Wheeler JA.
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