Tu Van Be Nguyen v The Queen

[1997] FCA 583

CATCHWORDS

CRIMINAL LAW - Arson.

APPEAL - Whether jury verdict was unsafe and unsatisfactory - circumstantial case - that evidence on one issue is equivocal does not make verdict unsafe where the whole of the evidence reveals a strong case of the accused's guilt.

Cases Considered

M v The Queen (1994) 181 CLR 487
Shepherd v The Queen (1990) 170 CLR 573

TU VAN BE NGUYEN v THE QUEEN
AG 3 OF 1997

GALLOP, O'LOUGHLIN AND DRUMMOND JJ
24 JUNE 1997
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA  AG 3 of 1997
AUSTRALIAN CAPITAL TERRITORY  DISTRICT REGISTRY
GENERAL DIVISION

ON APPEAL FROM A JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:TU VAN BE NGUYEN

Appellant

AND:THE QUEEN

Respondent

CORAM:Gallop, O'Loughlin and Drummond JJ

DATE:24 June 1997

PLACE:Canberra

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The appeal be dismissed.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA  AG 3 of 1997
AUSTRALIAN CAPITAL TERRITORY  DISTRICT REGISTRY
GENERAL DIVISION

ON APPEAL FROM A JUDGE
OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:TU VAN BE NGUYEN

Appellant

AND:THE QUEEN

Respondent

CORAM:Gallop, O'Loughlin and Drummond JJ

DATE:24 June 1997

PLACE:Canberra

REASONS FOR JUDGMENT

DRUMMOND J:  The appellant was convicted after a trial by jury of the offence that, on 19 December 1994 at Canberra, he dishonestly, with a view to gain for himself, damaged by means of fire property situated at premises known as The One Hot Bake in Bowes Street, Phillip.  He appeals his conviction on the ground that the jury's verdict was unsafe and unsatisfactory.

The test that this Court must apply in dealing with this appeal is not in doubt.  In M v The Queen (1994) 181 CLR 487, it was said, at 493:

"Where, notwithstanding, that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or satisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

The appellant was the principal of The One Hot Bake.  The Crown case was a circumstantial one.  The fire broke out with an explosion in the early hours of the morning of 19 December 1994.  It was a central feature of the Crown case that the appellant deliberately set the fire.  The Crown allegation was that he did that for financial reasons.  The argument on the appeal by appellant's counsel concentrated on the quite extensive evidence as to the possible causes of the fire.  That body of evidence left open a number of innocent explanations for the outbreak.  It is a possibility, open on that body of evidence, that the fire may have been caused by an electrical fault in a bread slicer.  It is also a possibility that it may have been due to the build up of gas from faulty connections in a gas cooker, which may in turn have been ignited by the cigarette the appellant said he was smoking when he entered the shop and when, according to him, an explosion immediately ensued.

All that can be accepted.  But counsel for the appellant did not dispute that, notwithstanding these other possible innocent explanations, the evidence relevant to the cause of the fire was capable of supporting an inference, if the jury chose to draw it, that it was deliberately set with the aid of petrol or a similar substance as an accelerant.  The question for the Court thus resolves itself into the familiar one of whether the verdict is unsafe, having regard to all the evidence which the jury was entitled to consider.

There was, in my opinion, an abundance of evidence on other issues relevant to the question of the accused's guilt, all well capable of being accepted by the jury, which was in turn well capable of removing any doubt as to whether the fire may have had an accidental origin.  There was evidence, for example, that the business was not making much in the way of profit.  There was evidence that the business had substantial creditors, some of long standing and some of whom were pressing the appellant for payment personally, immediately before the fire.  There was also evidence that on 16 December 1994, the last business day before the fire, the appellant for the first time took out insurance in respect of the premises.  The evidence on this particular issue was important.  The appellant's solicitor had, in early 1994, advised the appellant to take out insurance in respect to fire, public liability and plate glass damage.  The appellant did nothing.  Later, the solicitor came to the shop and on that occasion said he told the appellant that he hoped that the appellant's insurance was in place, because someone could injure themselves because the floors of the shop were slippery.  The insurance the appellant took out on 16 December was, however, limited to insurance against fire damage to the business' stock and contents, in a total amount of $120,000, and insurance against loss of business income to a maximum of $216,000 over a 12 month period, that is, at the rate of $18,000 per month.  The evidence as to what profits, if any, the appellant was making from the business was conflicting.  He told the police that he was making a profit of $5,000 to $7,000 a month; he gave evidence at the trial, however, that his profit was of that order per week.  If the former was the true position, the appellant had substantially over-insured the business cash flow just before the fire.

I have not attempted to list all the evidence which, in my opinion, the jury was entitled to take into account in deciding whether it should reach the ultimate conclusion that the appellant's guilt was established beyond reasonable doubt.  I have listed only the more significant matters touching on that.  It is important to note that it was not suggested that any of the evidence with respect to these other matters, including the more significant ones I referred to, was not capable of being relied on by the jury in the process of arriving at its verdict.

It is true that, if attention is confined to the evidence as to the cause of the fire, the evidence directly relevant to that matter leaves open innocent explanations for the outbreak.  But it is, in my opinion, not permissible, in a case based on circumstantial evidence, to segregate evidence on one issue, no matter how important that issue may be, from the totality of the evidence.  In Shepherd v The Queen (1990) 170 CLR 573, Dawson J, at 579-580, said:

"The prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved.  It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference, must itself be proved beyond reasonable doubt."

And his Honour then continued:

"Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately."

McHugh J, dealing with the same consideration said, at 592:

"There are many cases where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances."

Reference was made by appellant's counsel to an aspect of the decision in M v The Queen to which I have referred.  That was a case involving the sexual assault by a father of his daughter.  She gave direct evidence of the assault.  There was evidence from one medical practitioner that the condition of the vagina of the complainant was unequivocally inconsistent with her account of full penetration.  The evidence of a second medical practitioner was that it was not possible to say whether there had been penetration or not.  But, as is apparent from 498 to 499 of the report, the unequivocal medical evidence from the first doctor inconsistent with the accused's guilt was but one of many of the aspects of the evidence that led the court to consider that the conviction was unsatisfactory.  It was the accumulation of these deficiencies that led the court to consider that the verdict was unsafe.  This case is quite different.  It was a circumstantial one.  Only one aspect of the evidence, the cause of the fire, was pointed to as being ambiguous and incapable by itself of compelling a guilty inference.  There was no suggestion of a multitude of identifiable doubts as to the quality of the evidence on other issues that might create a feeling of unease as to the entitlement of the jury to be convinced on all the evidence of the guilt of the appellant.

I would, for these reasons, dismiss the appeal.

GALLOP J:   I agree with the conclusion reached by Drummond J and have nothing to add.

O'LOUGHLIN J:   I also agree and I have nothing further to add.

GALLOP J:   The order of the Court is that the appeal be dismissed.

I certify that this and the preceding five
pages are a true copy of the reasons
for judgment herein of the Court.

Associate:

Date:24 June 1997

Counsel for the appellant:  R  Thomas

Solicitor for the appellant:  pappas, j - attorney

Counsel for the respondent:  T  Buddin, SC

Solicitor for the respondent:  ACT Director of Public Prosecutions

Date of hearing:  24 June 1997