Truong v The State of Western Australia
[2006] WASCA 1
•13 JANUARY 2006
TRUONG -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 1 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CCA:180/2004 | 4 OCTOBER 2005 | |
| Coram: | WHEELER JA MCLURE JA SIMMONDS AJA | 13/01/06 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | AARON TRUONG THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Good character direction Need for the customary inference direction Whether a substantial miscarriage of justice as a result of inadmissible evidence Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 30(4) Criminal Code (WA), s 7, s 8 |
Case References: | Crofts v The Queen (1996) 186 CLR 427 Grant v The Queen (1975) 11 ALR 503 Melbourne v The Queen (1999) 198 CLR 1 Mraz v The Queen (1955) 93 CLR 493 R v M (1998) 104 A Crim R 154 Shepherd v The Queen (1990) 170 CLR 573 Simms v The Queen [2004] WASCA 237 Wedd v The Queen [2000] WASCA 273; (2000) 115 A Crim R 205 Weiss v The Queen [2005] HCA 81 Attwood v The Queen (1960) 102 CLR 353 Barca v The Queen (1975) 133 CLR 82 Peacock v The Queen (1911) 13 CLR 619 R v Berrada (1989) 91 Cr App Rep 131 Re Hodge's Case (1838) 168 ER 1136 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TRUONG -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 1 CORAM : WHEELER JA
- MCLURE JA
SIMMONDS AJA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : PULLIN J
File No : INS 66 of 2001
Catchwords:
Criminal law - Good character direction - Need for the customary inference direction - Whether a substantial miscarriage of justice as a result of inadmissible evidence - Turns on own facts
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Legislation:
Criminal Appeals Act 2004 (WA), s 30(4)
Criminal Code (WA), s 7, s 8
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr L A Margaretic & Mr J A O'Connor
Respondent : Mr B Fiannaca
Solicitors:
Appellant : O'Connor Lawyers
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Crofts v The Queen (1996) 186 CLR 427
Grant v The Queen (1975) 11 ALR 503
Melbourne v The Queen (1999) 198 CLR 1
Mraz v The Queen (1955) 93 CLR 493
R v M (1998) 104 A Crim R 154
Shepherd v The Queen (1990) 170 CLR 573
Simms v The Queen [2004] WASCA 237
Wedd v The Queen [2000] WASCA 273; (2000) 115 A Crim R 205
Weiss v The Queen [2005] HCA 81
Case(s) also cited:
Attwood v The Queen (1960) 102 CLR 353
Barca v The Queen (1975) 133 CLR 82
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Peacock v The Queen (1911) 13 CLR 619
R v Berrada (1989) 91 Cr App Rep 131
Re Hodge's Case (1838) 168 ER 1136
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1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Simmonds AJA. I agree with those reasons and have nothing to add.
2 MCLURE JA: The appellant appeals from his conviction for the attempted unlawful killing of Leo Nguyen Le. The factual and other background is set out in the reasons of Simmonds AJA. I agree with Simmonds AJA, generally for the reasons he gives, that the trial Judge did not err in his direction as to the appellant's good character.
3 The appellant also challenges the adequacy of the trial Judge's directions on inferences. The trial Judge did not give the customary inference direction which is to the effect that in order to prove an inference beyond reasonable doubt, it is not sufficient that it be a rational inference but must be the only rational inference that can be drawn from the circumstances. Unlike the majority, I have concluded that the trial Judge erred in this regard.
4 The prosecution case was that a group of between 8 and 15 young men, including the appellant, attacked the complainant. They (and a number of others) gathered at a park and travelled in a convoy of cars to the scene of the attack. A number of people alighted from the vehicles, chased the complainant and attacked him with various weapons. Weapons found at the scene included wooden chair legs and a meat cleaver blade. Other weapons seen before or at the scene of the attack included a baseball bat, martial arts poles, a knife and a sword. Just whether and how they were used on the complainant and by whom is less clear. The complainant suffered, inter alia, scalp wounds, a superficial skull fracture and a severed facial nerve. There was evidence from two witnesses (Ms J Tabarias and Ms S Smith) that the appellant was present at the park and at the scene of the attack and from two witnesses (Smith and the complainant) that the appellant hit the complainant.
5 Thus, the State case as to the appellant's participation in the attack on the complainant was based on the direct evidence of witnesses. However, its case in relation to intention was based on circumstantial evidence. Intention was relevant at a number of levels. The first count against the appellant was the charge of attempted murder for which the State had to prove that the appellant intended to kill the complainant. On count 2, which was in the alternative to count 1, the appellant was charged with unlawfully wounding the complainant with intent to do grievous bodily harm. To prove the alternative charge, the State had to prove that the appellant intended to cause grievous bodily harm. If the State failed to
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- prove an intention to kill or to cause grievous bodily harm, a further alternative verdict of unlawful wounding was available.
6 Further, the State case was that the appellant actually did the act which constituted the offence (referred to by the trial Judge in his directions as the "principal offender") or aided another person or persons to commit the offence or formed a common intention with others to prosecute an unlawful purpose and the commission of the offence was a probable consequence of the prosecution of the purpose (s 7 and s 8 of the Criminal Code (WA)).
7 The trial Judge's direction on intention in the context of the appellant as a possible principal offender is set out in the reasons of Simmonds AJA and not repeated here. It is sufficient to note that the trial Judge repeated on at least two occasions that the State had to prove the appellant's intention beyond reasonable doubt. He also commented that the jury may feel that the evidence relied on by the State was not sufficient to allow it to be satisfied beyond reasonable doubt that the appellant had an intention to kill the complainant.
8 Proof of intention by way of inference was also relevant to proof of aiding and the alleged common intention. On the subject of aiding, the trial Judge said:
"In the case of count 1 it is essential that the accused should have the knowledge of the intention of the person who committed the offence, that is the actual person who intended to kill or who was attempting to murder Leo Le, and in count 2 is essentially accused should have knowledge of the intention of that other person to commit grievous bodily harm at the time that the attack occurred, and they themselves could infer what this intention was from what was going on around them."
9 The State also had to prove that the appellant intended to give encouragement to the person(s) performing the relevant acts constituting the offences.
10 Liability under s 8 requires, inter alia, proof: (1) of the appellant's common intention with one or more persons to prosecute an unlawful purpose; (2) of the commission of the offence of attempted murder or alternatively intention to cause grievous bodily harm by another in the prosecution of the common purpose; and (3) that the commission of the offence was a probable consequence of the common purpose.
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11 Thus, the jury had to be satisfied that either the appellant or another participant in the affray intended to kill or alternatively, intended to cause grievous bodily harm to the complainant.
12 At the conclusion of the summing up, counsel for the State queried the content of the inferences direction and the appellant sought the customary direction. The trial Judge declined to give the customary direction, relying on remarks of Murray J in Simms v The Queen [2004] WASCA 237 at [17 - 19].
13 In Simms, the trial Judge had given the customary inference direction and supplemented it with two examples, both of which were said to support only one reasonable inference. The ground of appeal was that the trial Judge should have given an example of a factual situation from which two reasonable inferences could be drawn. That challenge was dismissed. Murray J said at [18] – [19]:
"In the leading case, Shepherd v R … the High Court, while giving guidance on the directions which might be required of a trial judge in a case where the evidence was circumstantial in character, to assist the jury in considering whether it was proper to draw an inference of guilt, made it clear that the directions about which it was speaking may not be required because they might not assist the jury as an amplification of the general direction about the obligation upon the prosecution to prove guilt beyond reasonable doubt: eg, per Dawson J at 579.
In my opinion, that is sometimes overlooked by trial judges and indeed this was, I think, a case where the jury would have been adequately directed that they must find the intention with which the acts were accompanied, if at all, to be proved to their satisfaction beyond reasonable doubt. No more was required than to identify the evidence which bore upon the resolution of that question of fact."
14 Murray J in Simms does not elaborate on why the customary inference direction was not required. The question before the High Court in Shepherd v The Queen (1990) 170 CLR 573 was whether, in cases based on circumstantial evidence, juries must be directed that they cannot use a fact as a basis for inferring guilt unless that fact is proven beyond reasonable doubt (referred to as the "Chamberlain direction"). In the course of his reasons, Dawson J (with whom Mason CJ, Toohey and Gaudron JJ agreed) made some observations on the customary direction
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- that guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances. He said at 578:
"Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving substantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given."
16 However, this case is materially different. The appellant was charged in the alternative and the only relevant difference in the charges was the intention with which the act was committed. Further, the inferences capable of being drawn may differ according to whether the jury was considering the intention with which the appellant committed the relevant acts, the appellant's knowledge of another person's intention to commit the charged offences or whether the commission of the offence by another was a probable consequence of a common intention to prosecute an unlawful purpose.
17 In this case, there was a live question on the evidence as to whether the only rational inference available was that the appellant or another participant in the melee, had an intention to kill the complainant. That being so, there was no justification for not giving the customary direction;
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- it would not have been confusing or unhelpful. To the contrary, it would at the very least have been a helpful direction and ought to have been given. However, there will be no appealable error unless it can be shown that the customary direction was necessary to enable the jury to properly go about their task. The respondent contends that the customary direction was unnecessary because it is implicit in the requirement that intention be proven beyond reasonable doubt and the trial Judge repeatedly referred to the need for the State to establish intention beyond reasonable doubt. If reference to the criminal standard of proof is sufficient, the customary direction would never be a necessary clarification or amplification of the criminal standard of proof, a proposition that is inconsistent with Shepherd and Grant v The Queen (1975) 11 ALR 503 at 504 per Barwick CJ.
18 Where, as in this case, the State relies solely on circumstantial evidence to prove intention and there is a real question on the evidence as to whether one or more rational inferences are open on the question of intent, the customary direction is in my view required in order for the jury to properly perform their task. For these reasons, I would uphold this ground.
19 The final ground of appeal relates to the admissibility of evidence adduced by the State from a co-offender Mr Hearne, who had pleaded guilty to unlawful wounding with intent to do grievous bodily harm. Mr Hearne had given evidence that one of a group of people with him at a gym told him that the group would be leaving the gym to go to a fight. The group left in Mr Hearne's car. A short time later during a telephone conversation with a member of the group that had left the gym, Mr Hearne asked that he be picked up from the gym and that was done. Mr Hearne was asked by counsel for the State "Did they say anything else of what they were doing?" to which the appellant's counsel objected. The objection was overruled and the following evidence was given:
"RAYNEY, MR: I don't want to lead you, put words in your mouth, Mr Hearne. What did they say to you when you called them?---Well, it was four years ago now but all I can remember is they said that they were coming to pick me up.
Can you remember them speaking about anything else?---Not during that telephone conversation, no.
Was there any other conversation with them before they picked you up?---Before I left the gym I'm not too sure when but I
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- seem to remember someone saying something about going to a mate Chicken's house.
Who? One of those four or someone else?---It could have been one of them four but I have no idea what it was in relation to either."
20 It was accepted that the reference to "Chicken" was to the appellant. The appellant admitted in his police record of interview which was tendered at trial that he was known to his friends as Chicken.
21 Mr Hearne's evidence of what he was told was irrelevant to his state of mind. Further, it could not be relied on as evidence of the truth of what Mr Hearne was told because that would be inadmissible hearsay. The truth of the statement would encompass firstly that the speaker, who was going to the fight, knew the appellant and secondly that he intended to go to the appellant's house.
22 Given that the evidence was inadmissible, the consequences that flow depend upon whether there has been a substantial miscarriage of justice. This Court may dismiss an appeal if it considers that no substantial miscarriage of justice has occurred (s 30(4) of the Criminal Appeals Act 2004 (WA)). In that context the question is whether, as a result of the wrongful admission of the evidence, the appellant had lost a chance which was fairly open to him of being acquitted: Mraz v The Queen (1955) 93 CLR 493 at 514 per Fullagar J. See also Weiss v The Queen [2005] HCA 81.
23 There is no prejudice in the statement that a member of the group going to the fight knew the appellant. The appellant admitted in his police record of interview that he knew a number of the people present on the evening in question. Further, I am not persuaded there is any real prejudice in the statement that the group, or a member thereof, intended to go to the appellant's house that night. There is no evidence as to whether the intention was acted upon. The evidence was vague, particularly as to the purpose of the proposed visit. Further, the appellant's evidence was that he was at his girlfriend's house during the time in question. Although the trial Judge did not specifically refer to or give directions concerning the inadmissible evidence in his summing up, he was not asked by the appellant's counsel to rectify the omission. Further, he gave a general direction that statements made out of court cannot be proved by calling a witness who heard the statement. For these reasons, I am satisfied that there was no substantial miscarriage of justice in the admission of the
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- evidence or the trial Judge's failure to specifically direct the jury as to its irrelevance.
24 For these reasons, I would dismiss grounds 1 and 3 and uphold ground 2 of the grounds of appeal.
SIMMONDS AJA:
Introduction
25 This is an appeal against a conviction of attempted murder arising out of serious injuries suffered by the victim in a violent melee. The victim subsequently died, but as a result of another incident. He was able, however, to give evidence in an earlier, aborted trial. This appeal raises issues of the adequacy of directions on evidence that the accused had no prior convictions, and on drawing inferences for the purposes of conviction, and whether directions should have been given on hearsay evidence.
Issues at the trial
26 Aaron Truong, the appellant, was charged, with his co-accused a Mr Jonathon O'Driscoll, with attempting to unlawfully kill a Mr Leo Nguyen Le on 12 July 2000; and in the alternative, with unlawfully wounding Mr Le with intent to do him some grievous bodily harm. At least one other person alleged to have been involved in the melee was also charged, a Mr Daniel Frank Hearne. He pleaded guilty to the alternative count in his indictment that he unlawfully wounded Mr Le with intent to do some grievous bodily harm to him, and he had been sentenced on his plea of guilty by the time he testified at the trial of Mr O'Driscoll and Aaron Truong.
27 On his conviction of unlawfully attempting to kill Mr Le, Aaron Truong was sentenced to 4 years' imprisonment with eligibility for parole.
28 The State's case at the joint trial of Aaron Truong and Mr O'Driscoll was that a group of individuals, including the two accused, gathered at a suburban park on the evening of 12 July. The park was near the home of a Mr Huynh who was celebrating his birthday with a number of others, including Mr Le. The gathering at the park included talk of going to the place of the birthday party, to wait near there for the purposes of attacking Mr Le, Mr Huynh or others. A number of those at the gathering at the park were members of a group which had clashed violently with members of a group to which Mr Le and Mr Huynh, as well as some of their
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- friends, belonged. The attack talked of at the park was a continuing part of this history of animosity.
29 The State's case was also that some at least of those at the gathering moved off in the vehicles that brought them there. This was for the purposes of driving to the party. At about the same time Mr Huynh and Mr Le left the birthday party to walk to nearby shops to buy a number of items for the party. En route they encountered one of the people (neither of the accused) in one of the cars, and the two started to flee in the direction of the party. Mr Huynh outpaced Mr Le. The latter passed the car in which the two co-accused were passengers and the two co-accused got out of the car to pursue him. Aaron Truong hit Mr Le with a hammer or a small axe, while Mr O'Driscoll also hit him with a weapon of some sort. Others also got out of their cars and swarmed around Mr Le, who had by this time fallen to the ground. Subsequently the car that had carried the two co-accused caught up with them as they were leaving the scene.
30 At the trial Aaron Truong did not testify. In his video record of interview he clearly and consistently affirmed that he had not been present at the incident, having been with his girlfriend at her residence. The State case relied heavily on the testimony of two witnesses, a Ms Smith and a Ms Tabarias, as well as the testimony of Mr Le at the previous trial, which was read into evidence.
31 Ms Smith testified she was the girlfriend of the driver of the vehicle in which Mr O'Driscoll and Mr Truong were passengers. Ms Smith testified that she saw Mr Truong hitting the victim on his head and also testified she saw Mr O'Driscoll hit the victim with what appeared to be a metal object, being a knife or sword. She also testified that others were hitting the victim with their hands or with weapons, although she could not be sure of this as she did not look for very long. She testified that subsequently, when a number of those involved got into her boyfriend's car, he drove away. She testified that Mr O'Driscoll got back in the car but could not remember whether or not Aaron Truong had got back into the car.
32 In cross-examination, Ms Smith had put to her inconsistencies between her testimony and two prior written statements she made to the police, on 3 August 2000 and on 1 February 2002. In the first of these, made shortly after the incident, she had stated that none of those in her boyfriend's vehicle had got out of the vehicle, and she had not made any reference to Aaron Truong being in the vehicle. In her second statement there was no mention of a weapon being used by Mr O'Driscoll.
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- Ms Smith was also cross-examined on points of detail in her account and on other events on the night in question, as to which she conceded her recollection was unsure or non-existent.
33 Ms Tabarias testified that she walked to the park with her boyfriend and the two of them got into the vehicle of Ms Smith's boyfriend with Mr O'Driscoll and Aaron Truong. She testified that she heard someone in a neighbouring vehicle say, when the two boys, including the victim, were seen walking in their direction, "That's them, let's go". Subsequently Ms Smith's boyfriend drove his vehicle out of the car park, and Mr Huynh and Mr Le turned around and ran away in the opposite direction. She further testified that Mr O'Driscoll and Aaron Truong got out of the car, but she did not see what they, or any of the others, did subsequently. She then saw Mr O'Driscoll and Aaron Truong return to the vehicle, with the former putting something into the car. As Aaron Truong got back into the car he said words to the effect: "We got them". As the car drove off, she said the behaviour of both Mr O'Driscoll and Aaron Truong indicated they were quite excited about what had happened. In response to questions from other occupants of the vehicle, Ms Tabarias said that Aaron Truong replied that "We got them but I don't want to say too much in front of [Ms Tabarias]".
34 In cross-examination of Ms Tabarias, a prior statement she had made to the police on 19 July 2000 was put to her in which she said that on the night in question she had not left her boyfriend's house. A subsequent statement she had made to police on 27 July 2000 was also put to her, in which she made no mention of the fact that Ms Smith was in the car with her and her boyfriend on that night. She also indicated in that subsequent statement, and at variance with her testimony, that Mr O'Driscoll was sitting in the front seat of the vehicle, rather than in the back. Her evidence was also at variance with the subsequent statement in relation to where Mr O'Driscoll was said to have placed something in the vehicle following the incident. There were a number of other items of detail with respect to which her recollection was taxed in cross-examination.
35 In cross-examination of the two women, it also emerged that Ms Smith had broken up with her boyfriend between making the two statements to police, while Ms Tabarias had broken up with her boyfriend and commenced a relationship with Mr Le "a few months after the incident" (t/s 3600).
36 The third principal witness on which the State's case depended was the victim, Mr Le. As I have indicated, he did not testify at the trial.
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- However, his evidence from a previous trial was read in. In that evidence he referred to receiving blows to his head and an arm. He testified that immediately prior to this he saw Aaron Truong holding what appeared to be a hammer of some sort in his hand, although Mr Le could not be sure of this.
37 In the cross-examination read into evidence, Mr Le was taxed with the fact that in his statement to the police made on 14 July 2000, he made no mention of Aaron Truong. As with Ms Smith and Ms Tabarias, he explained this major divergence between his testimony and his earlier, substantially contemporaneous, statement to the police by reference to being "scared". He added that he was also "high on amphetamines".
38 It is evident then that there was a substantial conflict in the major evidence between that of Aaron Truong, who maintained he had not been present at the events in question, and those of the other witnesses to whom I have referred, the combined evidence of whom was both to place him at the scene, and to implicate him in the activities that had resulted in the serious injuries to Mr Le.
39 I turn now to the three grounds of appeal.
Ground 1: Directions in respect of the evidence as to the appellant's good character
40 It was accepted for the purposes of the appeal that the only evidence relevant to the appellant's good character at the trial was that he had no criminal record of any kind. This fact emerged from the cross-examination by counsel for Aaron Truong of Kenneth Foster, the police officer who assisted in the execution of the search warrant at the home of Mr Truong, who arranged for the vehicle in which it was alleged he was a passenger at the events in question to be taken to the Mirrabooka police complex, and who conducted the video record of interview with him (t/s 3808). Subsequently counsel asked the trial Judge, Pullin J, to give a direction in regard to character as a result of this evidence (t/s 3942). Counsel for the State took no objection to this. In fact, the following exchange occurred between Pullin J and counsel for the State (t/s 3943):
"PULLIN J: Yes, alright. If you change your mind - but my firm memory is that you both knew there was going to be a fight on but they didn't get out of the vehicle and character, it's a matter of saying that someone's good character can be taken into account in the assessment of their evidence.
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- RAYNEY, MR: Yes.
PULLIN J: Yes.
RAYNEY, MR: A Fuller direction but of course that's - - -
PULLIN J: Yes, alright. We will adjourn until - I wonder if we should come back a fraction earlier?"
41 Pullin J addressed the matter of good character both in his summing up, and, as a result of an exchange with counsel, in redirection.
42 In his summing up he said this (t/s 4009):
"Really everything personal to a witness is involved in assessing the value of that evidence; a person's age, their powers of observation, powers of recollection, powers of expression, intellectual powers generally can all be taken into account in making the assessment. Evidence of good character can be taken into account. So it emerged that Aaron Truong has no criminal record and there's specific evidence on that fact. That having come out, that's a factor that along with all other evidence can be taken into account in assessing his evidence. The fact that evidence given is consistent or inconsistent with other evidence can also be taken into account in deciding whether you believe someone or not."
43 The principal authority in relation to directions as to good character of the accused is Melbourne v The Queen (1999) 198 CLR 1. This authority was discussed in the principal authority in this jurisdiction on the matter: Wedd v The Queen [2000] WASCA 273; (2000) 115 A Crim R 205. Melbourne establishes that in Australia, unlike some other jurisdictions, a trial Judge does not in all cases have to give a direction as to good character simply because evidence of such character has been produced. In Wedd, Murray J, with whose reasons Malcolm CJ and Wallwork J agreed, expressed the view that, where a direction as to good character was appropriate, the appropriate content for the direction was described "most completely" in the judgment of Kirby J in Melbourne (supra), although his Honour dissented on the issue of the requirement to give such a direction. In Murray J's judgment at [20] he reproduced what he saw to be the principally relevant passage, [120], in Kirby J's judgment:
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- "1. In all cases in which there is evidence as to the accused's good character, a direction must be given by the judge as to the use to which that evidence may be put by the jury. Unless in the particular circumstances of the case doing so is unnecessary, or would be unwarranted for reasons which the judge gives, the directions on good character must relate both to (a) the way in which that evidence may be considered by the jury to make it less likely that the accused committed the offence charged (propensity) and (b) the reliance which the jury may place upon any evidence which the accused may have given in the trial and any other statements made by the accused out of court whether to police or others which come to the attention of the jury during the trial (credibility).
2. No particular form of words is necessary. However, the directions should convey to the jury that they should bear in mind the accused's previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused's guilt or a conclusion that the accused's evidence or relevant out-of-court statements are false. The jury are entitled to conclude that a person of established good character may be less likely to commit the crime charged or to make false statements relevant to guilt of that crime.
3. Because of the variety of the circumstances in which the need will arise, the directions must be tailored to meet the particular circumstances of the case. In an appropriate case, the judge will be at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character is not a defence in itself and cannot prevail against evidence of guilt which, notwithstanding the accused's previous good character, the jury find to be proved. The judge may comment on the good character evidence and any rebutting evidence, in a fair and balanced way, including in relation to its significance or lack of significance in the circumstances of the particular case. Generally, however, such directions and comments should be brief because it can safely be left to the jury to apply their common sense to such matters."
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44 It will be evident from this passage that, although Pullin J in his summing up had drawn the jury's attention to the significance of the good character evidence in relation to the credibility of Aaron Truong's statements in his video record of interview, there was no reference to the relevance of the evidence to the question of the likelihood the accused committed the offence charged (propensity). The matter of the lack of a reference to the propensity aspect was drawn to Pullin J's attention by counsel for Mr Truong following his Honour's summing up. Counsel for the prosecution indicated he had no objection to a redirection addressing the point, but he also referred to the matter of the possibility of the Judge reminding the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which the jury find to be convincing, notwithstanding the accused's previous character (t/s 4051). It will be noted that these are matters addressed in the judgment of Kirby J quoted from above, [120], at point 3.
45 In the event, Pullin J recalled the jury and gave them further directions in relation to the good character evidence. The redirection was in the following terms (t/s 4057 - 4058):
"The final point is that I omitted to give a direction in relation to good character evidence, which is a legal point. This won't take very long. There was evidence of good character concerning Aaron Truong. What I need to direct you on and what I should have directed you on is as follows: you need to bear in mind the evidence of previous good character of Aaron Truong when considering whether you are prepared to draw from the evidence a conclusion of his guilt or a conclusion that his out-of-court statements are false.
You are entitled to conclude that a person of established good character may be less likely to commit the crime charged or to make false statements relevant to guilt of that crime. However, I do remind you that people do commit crimes for the first time and that evidence of previous good character is not a defence in itself and cannot prevail against evidence of guilt which notwithstanding the accused's previous good character you may find to be proved, so I should have given that direction. It's a legal point and I omitted to give you that direction, so I'm sorry to disturb your deliberations but they were the points that I needed to cover and I have now covered them, so if you would retire again."
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46 In the written particulars of this ground of appeal, counsel for the appellant relied upon the "brevity" of the redirection, and on the "combined effect of the initial inadequate direction when viewed together with a brief re-direction" as being that it "seriously denigrated the significance of the evidence of good character which was the central plank in the presentation of the Appellant's defence".
47 It will be noted that the redirection was indeed relatively brief. It does not seem to me that, however, objection can be taken to it simply on that account. I particularly note the reference in the judgment of Kirby J in Melbourne quoted from at point 3 to the appropriateness of brief directions "generally" in this area.
48 The appellant's written submissions as to the combined effect of the direction and the redirection particularly focussed on the terms of the latter. We were directed to the characterisation of the matter of the good character reference in the redirection, both at its commencement and at its conclusion, as a "legal point", and in both places the indication of the brevity of that redirection. There is no doubt that Wedd (supra) is authority in this jurisdiction that, notwithstanding whatever reservations there may be about the admissibility of evidence of an accused person's good character (see Kirby J in Melbourne (supra) at [109]), there is a concern where a direction is given that the "balance of the direction" not be "seriously disturbed" by any words of qualification of it (Murray J in Wedd at [24]; see also his reference to R v M (1998) 104 A Crim R 154, at [25]).
49 There was, however, no such disturbance in this case, in my view. In Wedd, the relevant direction was qualified by the use of the words "that evidence of good character may be of limited assistance to you in your deliberations" immediately following, in the same sentence, a reference to "in considering this sort of evidence of good character you of course realise that persons of otherwise good character do, from time to time, commit offences". I do not consider the references to "legal point" are a disturbance of any kind, in view of the trial Judge's emphasis, elsewhere in his summing up, in the customary terms, on the role he had with respect to addressing the jury on matters of evidence. Nor do I consider that his reference to occupying relatively little of the jury's time to be a disturbance of any kind. Rather, occurring as it did at the end of fairly lengthy redirection remarks, it appears to me that this language was designed to ensure that the jury paid continuing close attention to the remarks he was making by reassuring them that they would be as brief as was reasonably possible.
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50 In oral submissions before us, however, counsel for the appellant went further than the two respects to which I have referred. He indicated that a vice in the redirection was its failure to relate the good character evidence to the particular circumstances before the court, especially the evidence of Ms Smith and Ms Tabarias, with that of Mr Le, ranged as that was against the video record of interview of Aaron Truong. Counsel for the appellant emphasised that Pullin J appeared to have echoed the terms of the judgment of Kirby J from Melbourne (supra) at [20], points 2 and 3, but had failed to go further, as Kirby J had indicated a trial Judge might do, in describing the significance of the evidence in the circumstances of the particular case.
51 However, it seems to me that, when the original direction was read with the redirection, Pullin J had indeed related the matter to the evidence in the case, at least so far as assessing Aaron Truong's evidence was concerned. Counsel for the appellant submitted that the trial Judge should, in his redirection, have gone on to refer to the evidence of Ms Smith and Ms Tabarias. However, it seems to me that, in a case being fought on comparative credibility grounds, the trial Judge had indeed reminded the jury of the need to relate the good character evidence to that matter. That was sufficient.
52 I do not consider this case represents an opportunity to consider whether, if the only evidence was lack of criminal convictions, no good character direction would be appropriate. Were it necessary to do so, I would note the references to this issue in Melbourne (supra) at [27] and [52] per McHugh J and [149] per Hayne J, as well as at [108] per Kirby J, to which I referred above. I note also that no issue was taken by the State at the trial with the trial Judge giving a direction as to good character.
53 I turn now to the remaining grounds.
Ground 2: The direction given in relation to the drawing of the ultimate inference of guilt
54 Before us, counsel for the appellant indicated that he would not press the ground as put forward in his written submissions, that the trial Judge erred in failing to direct the jury in the customary terms with respect to the drawing of inferences from the evidence of Ms Tabarias, Ms Smith and Mr Le. This was to the extent their evidence related to the matter of the presence of Aaron Truong at the events in question. That evidence was direct evidence as to that issue, and a direction as to inferences was thus not called for.
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55 There was, however, another aspect to the matter of the direction on inferences. This concerned the intention with which the appellant had acted, either to kill Mr Le, or to do him some grievous bodily harm. The summing up had this to say about inferences in this respect (t/s 4019 - 4020):
"That brings me to inferences. Intention can be found by way of inference from other facts. When you consider whether the accused was a principal offender, when looking at whether or not he was the principal offender - and I'll talk about aiding and principal offenders later, but when you're considering whether he was a principal offender you can look at what you find the accused did. That is, what witnesses say he did, and you've got to first believe those witnesses, and what he said before or after the time the attempt to kill took place.
The State must prove to you beyond a reasonable doubt that it can be inferred from these other facts that the accused did intend to kill Leo Le before they could be convicted of this first count. I'm not commenting on the evidence at this stage; I'm just talking about the legal components of the charges.
In this case insofar as the accused are said to be principal offenders we are concerned to examine the intention at the time the attack took place. That's the critical time; not some time earlier at Paloma Park. The critical time is the time the attack took place although you can take into account what happened leading up to the attack, but the critical moment for the determination of his intention is at the time it is alleged that the attempt to kill was made.
So in relation to this first count the State submits that you should draw an inference that the accused had an intention to kill. The State says you should believe [Ms] Smith and [Ms] Tabarias's evidence and from that evidence accept that someone in the car said, 'Come on, let's go'; that the accused then left the car, struck Leo Le with weapons, and from that and how they behaved when they got back into the car it is said that that should lead you to conclude beyond a reasonable doubt that these accused had the intention to kill Leo Le. You may well feel that those facts are not sufficient to allow you to be satisfied beyond reasonable doubt that they actually intended to
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- kill him, and that is why there is the alternative charge and charges against them."
56 The matter of intention was, of course, relevant also to the alternative charge of wounding with intent to do some grievous bodily harm, and with respect to the intention aspect of that charge and the role of inference in relation to it the trial Judge had this to say in summing up (t/s 4023):
"Now, I repeat what I have already said about how you can find intention. You can do it by way of inference. I have already given the directions about how you approach that. The intention with which an act is done by an accused may be found as a fact by way of inference from the other facts; that is, what the accused did or how he acted before, during or after the attack if you find that he participated, but you must be satisfied beyond reasonable doubt that the accused, insofar as he was a principal offender, had the intention which is alleged."
57 The trial Judge did not accede to a request from counsel for Aaron Truong for a redirection in terms of the language customarily used by trial Judges in relation to inferences. This language is of the kind referred to by Murray J in Wedd (supra) at [36], quoting from the judgment of Dawson J in Shepherd v The Queen (1990) 170 CLR 573 at 579:
"It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence."
- It will be noted that the trial Judge in his summing up emphasised the matter of a need for proof beyond reasonable doubt without telling the jury they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence, as it was suggested it might be "helpful" to tell them, in the judgment of Dawson J in Shepherd.
58 There is no authority that any such further reference is required in every inference case. The dicta of Dawson J in Shepherd indicate that the matter is rather one for the trial Judge to consider. This point is also made by Murray J, with whom Le Miere J agreed, in Simms v The Queen [2004] WASCA 237 at [18], where he refers to Shepherd as having "made it clear that the directions about which it was speaking may not be required because they might not assist the jury as an amplification in the
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- general direction about the obligation upon the prosecution to prove guilt beyond reasonable doubt". The judgment of the third Judge in the case, Jenkins J, is somewhat less emphatic on the point, but is, it seems to me, to the same effect (see [88]).
59 In this case it seems to me that there was no need for the amplification in terms of the customary direction to be given. There was no suggestion before us of any other evidence upon which a competing inference might be founded with respect to intention, nor of a competing inference on the facts. There was no suggestion in this case of intoxication or other disabling condition under which Aaron Truong might have laboured at the relevant time of the sort that was important in Simms (supra), which with the other material in that case might have grounded more than one inference as to the appellant's intention (see Jenkins J in Simms, at [97]).
60 The learned trial Judge had made it clear that the inference as to intention was one that needed to be drawn to the relevant standard of proof, and the amplification in the customary terms having to do with the requirement for the jury to entertain a doubt preventing the attaining of that standard "where any other inference consistent with innocence is reasonably open on the evidence" (Dawson J in Shepherd, at 579) would not have added anything of value, and might have been liable to confuse the jury. The drawing of inferences of intention from observed behaviour is something which members of the community are accustomed to doing as part of daily life. It may be counterproductive to give a direction which suggests that jurors should minutely examine their mental processes in doing so. What is important is that they appreciate that their finding as to a guilty intention must be reached beyond a reasonable doubt.
61 I would accordingly not uphold this ground of appeal.
62 This takes me to the last ground of appeal.
Ground 3 - Hearsay evidence of Mr Hearne
63 Mr Hearne, as I have indicated, was one of those charged in respect of the events in this matter, and had pleaded guilty to an alternative charge. In his evidence-in-chief, he said that earlier in the evening in question, he had been undergoing a fitness appraisal at a gym. With him, were a number of others said to have been present at the relevant events. He said that one of them told him during the appraisal that the group would be leaving the gym, while he stayed there, to go to a fight. They asked to borrow his car. They then left.
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64 A short time later during a telephone conversation, Mr Hearne asked them to call around and pick him up from the gym. As they were just around the corner, they did so. In Mr Hearne's evidence-in-chief, the following passage then appeared (t/s 3484 – 3485):
"Did they say anything else of what they were doing?
SMITH, MR: I object.
PULLIN J: What's the basis of the objection?
SMITH, MR: Well, if the evidence is to show what they were going to do it's hearsay.
PULLIN J: It depends. It might relate to the intentions of this witness.
SMITH, MR: If it reflects on his intentions, for sure - I'm sorry, not for sure, I appreciate - but if it's just somebody giving a throwaway line which has no consequence on any other evidence it's hearsay and it's of no probative value whatsoever.
PULLIN J: Mr Rayney?
RAYNEY, MR: It relates not only to his intention but more specifically to his knowledge and what he did subsequently.
PULLIN J: Yes, all right. I'd overrule the objection on the basis that that's the purpose of leading the evidence.
RAYNEY, MR: I don't want to lead you, put words in your mouth, Mr Hearne. What did they say to you when you called them?---Well, it was four years ago now but all I can remember is they said that they were coming to pick me up.
Can you remember them speaking about anything else?---Not during that telephone conversation, no.
Was there any other conversation with them before they picked you up?---Before I left the gym I'm not too sure when but I seem to remember someone saying something about going to a mate Chicken's house.
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- Who? One of those four or someone else?---It could have been one of them four but I have no idea what it was in relation to either."
65 It was accepted on all sides that the reference to "Chicken" was a reference to Aaron Truong. Neither Mr Hearne nor anyone else gave evidence that anyone had in fact gone to Mr Truong's house, or that he had been picked up. Mr Hearne did not give evidence that he had seen Mr Truong that night. His evidence was that when they left the gym, there was a group of, he thought, three vehicles. All three went to Marangaroo and ended up at the house of a friend called "Rashy". Later on, they all went to the park. He gave evidence of seeing an attack, but not, as I have noted, of seeing Mr Truong at any stage.
66 There was no cross-examination of Mr Hearne by counsel for Aaron Truong. In context, it seems unlikely that the answer about going to "Chicken's" given by Mr Hearne was anticipated by prosecuting counsel; what was relevant, and what counsel was likely to have been trying to get at, was the fact that Mr Hearne anticipated that he would ultimately be involved in or on the fringes of a fight. That was of some, although peripheral, relevance because Mr Hearne may therefore have fitted into the category of accomplice, and been a person in respect of whom it was appropriate to give a warning to the jury. His Honour did give such a direction in the following terms (t/s 4009 – 4010):
"But there were people who fit the description of accomplices in this case and I put in that category An Tiet, Daniel Hearne, Tuoi Tiet, Eugene Scobbie and Jamie Nguyen, even though, as you know, some of those weren't charged. Jamie Nguyen, for example, wasn't charged. In fact none of them, save I think for Eugene Scobbie and Jamie Nguyen, do actually implicate the accused directly. ...
All I'm pointing out is that those people I have mentioned, An Tiet, Daniel Hearne, Tuoi Tiet, Eugene Scobbie and Jamie Nguyen, are all people whose evidence you need to examine fairly carefully if you think that what anything they said inculpates the accused. That's not to say you can't act on their evidence, but I'm obliged to simply give you this warning and if I didn't give you the warning I would be missing an important point that I have to draw to your attention."
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67 Counsel for the appellant did not ask his Honour, at the time the evidence was given or subsequently, to direct the jury in relation to what, if anything, they could make of the comment that someone had said that they were going to Chicken's house. Although we do not have the transcript of counsel's closing addresses, it appears that counsel for the appellant did speak to the jury about this matter. For some reason, he found it necessary to explain to his Honour, in advance of his closing address, what he was proposing to say. In relation to that issue, there was the following exchange with his Honour (t/s 3851 - 3852):
"SMITH, MR: I will be commenting that there is no evidence in regard to other areas as well. Daniel Hearne, for example, gave away what I consider was a comment that the people picking him were going to pick up Aaron Truong - or Chicken, I think it was referred to, on the way, and Chicken was never mentioned again through Daniel Hearne's evidence. So I'm going to be suggesting to the jury that in regard to Daniel Hearne's evidence there is no evidence from Daniel Hearne that he was there and that the comment that they were going to pick him up doesn't help them in any way whatsoever.
PULLIN J: Yes. Well, that's an example of hearsay evidence.
SMITH MR: Yes, sir.
PULLIN J: The point you objected to in relation to that, the question didn't give rise to any problem, but in fact there was then a comment - if I'm thinking of Daniel Hearne and not another witness.
SMITH MR: Yes, sir. That's the one, sir.
PULLIN J: - - - where, if it was Daniel Hearne or another witness, said, 'The people who were with me said they were going to Chicken's place.' Now, whether they did or didn't is not evidence before the court.
SMITH MR: No, I'll be saying, hopefully, something in relation to that, sir.
PULLIN J: Well, yes, I can understand that because that's an example of the statement itself - I mean the witness said that in the witness box so that's not hearsay that that was said, because he said in this court. It doesn't prove, of course, that they went
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- anywhere. I mean someone can say, 'I'm going to the moon but not actually go to the moon.' I'm just a bit concerned about this area in relation to Kellie Larson. As soon as you start indicating that there was no evidence it will have to be handled very carefully or it will invite me to very carefully direct the jury not to speculate if you're in effect inviting that.
SMITH, MR: I'm sure Your Honour will say that in any event."
68 It should be noted that although Mr Smith expected the trial Judge to say something about the importance of the jury not speculating (which his Honour in due course did), he does not seem to have anticipated, or to have suggested to his Honour, that he should reinforce what counsel was saying about Mr Hearne's evidence.
69 Turning to the admissibility of Mr Hearne's evidence in relation to what he was told about where members of the group were going, evidence about what he was told would have been admissible had it demonstrated anything of relevance about his state of mind. The comment that someone proposed to go to Chicken's house does not seem capable of establishing anything of relevance about Mr Hearne's state of mind (as I have noted, it may well be that it was not the answer which was anticipated) and it would therefore have been inadmissible. It clearly would have been inadmissible if adduced for the purpose of showing where any members of the group actually went.
70 It was argued before us that the admission of that evidence may well have given rise to a miscarriage of justice, since the jury could speculate from it that some person or persons had actually gone to Aaron Truong's house in order to pick him up and take him to the fight, thereby adding weight to the evidence of Ms Smith and Ms Tabarias, who said that they had seen the appellant there. There is substance in this submission, in the sense that a critical question at trial seems to have been whether the appellant was indeed present, or whether, as he had said, he was not. The evidence of Ms Smith and Ms Tabarias in relation to this issue was closely examined. It was obviously most undesirable that additional weight should be given to the evidence of those two young women by use of any inadmissible evidence.
71 On the other hand, Mr Hearne's evidence went no further than that he "seemed to remember" someone saying something about going to Aaron Truong's house. He did not say, and the evidence which he gave did not suggest, that Mr Truong was to be picked up, or was to be taken
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- anywhere for any purpose. Indeed, Mr Hearne expressly said that, of the proposed visit to his house, "I have no idea what it was in relation to either". And, of course, Mr Hearne's evidence was that those with him had in fact gone somewhere else. Given the limited nature of that evidence, and given that the discussion about the purpose for which it could be used (that is, only to show Mr Hearne's state of mind) took place at the time the evidence was received and in the presence of the jury, and given the direction about speculation, I would not be prepared to conclude that the admission of that reply, which ultimately proved to be irrelevant and inadmissible, would have been capable of having an adverse effect on the result, by improperly bolstering the evidence of Ms Smith and Ms Tabarias.
72 I am fortified in that view by the attitude apparently taken both by his Honour the trial Judge, and by counsel for the appellant at trial. So far as the trial Judge is concerned, in Crofts v The Queen (1996) 186 CLR 427, the High Court considered a trial Judge's refusal to discharge a jury after the admission of inadmissible evidence. The circumstances of the case were very different. However, a passage which is of relevance to the present case is to be found in the judgment of Toohey, Gaudron, Gummow and Kirby JJ (at 440). In discussing the consequences of an inadvertent and potentially prejudicial event occurring during a trial, their Honours said:
"The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript."
73 In the present case, it is therefore of significance that, notwithstanding that counsel for the appellant had explained to his Honour what counsel proposed to say to the jury, his Honour did not consider it even necessary to advert specifically to that portion of the evidence of Mr Hearne.
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74 Further, counsel for the appellant at trial, of course, did not seek to have his Honour give the jury any specific direction, and obviously did not regard the evidence as of a significance which would warrant making an application to discharge the jury. He did consider it to be of sufficient significance to require a comment during his address to the jury, but only as one of a number of issues in relation to which there was "no evidence".
75 I would not uphold this ground.
Order
76 As I have not upheld any of the grounds of appeal, I would dismiss the appeal.
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