The Queen v Manh Toan Le

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 208/00
CA209/00

THE QUEEN

MANH TOAN LE

AND

TRUONG MANH LE

Hearing:	30 August 2000 (at Auckland)
Coram:	Blanchard J McGrath J Young J
Appearances:	JG Haigh QC and J Wong for Appellants KBF Hastie for Crown
Judgment:	14 September 2000

JUDGMENT OF THE COURT DELIVERED BY YOUNG J

Introduction

On 17 May this year Manh Toan Le (“Manh”) and Truong Manh Le (“Truong”) were convicted by a jury in the District Court at Papakura on a joint charge of wounding with intent to cause grievous bodily harm. They were later each sentenced to 4½ years imprisonment.
They now appeal against conviction and sentence.

The background facts

The charge arose out of an incident which occurred on 26 February 1999. The two appellants (who are brothers) were driving in a red Honda Accord on Buckland Road in the vicinity of Massey Road, Auckland. The complainant was in a silver/grey Mitsubishi. He pulled out onto Buckland Road from his driveway. There was then an incident involving either an accident or a near-miss between the vehicle driven by the complainant and the appellants’ vehicle.
As a result of this accident (or near miss), there was interaction between the complainant and the appellants. This occurred in two stages. First there was some initial discussion (and on the appellants’ account, an assault by the complainant on Manh). The complainant denied that he had assaulted Manh but said that there was some discussion between him and the appellants in which they alleged that he had damaged their car. The complainant then drove his car around the corner and, having parked it, returned on foot. On his evidence, he drove round the corner because he and the appellants were blocking Buckland Road with their motor vehicles. He said that he returned on foot with a view to resolving with the appellants the debate as to whether there had indeed been an accident involving damage to their car. The appellants claimed that when the appellant returned, he was carrying a knife and this in a context in which he posed a clear threat to their safety. This the complainant denied. It is clear that there was a struggle between the appellants and the complainant, that the complainant was wounded in the head and that he then ran off (down a driveway). He received assistance at the scene and then was treated at Middlemore Hospital. The two appellants drove off.
The Crown case was that the two appellants were the aggressors. The complainant said in evidence that when he returned to the scene, the appellants armed themselves with a jack handle, a wheel brace and a knife (which they took from the boot of their car) and they then attacked him. As a result he received a wound to his head. The Crown also alleged that when the complainant attempted to escape up a neighbouring drive, the two appellants initially sought to give chase before they returned to their car and drove off. The complainant at this stage was semi-dazed and was bleeding from his wound. Evidence to this effect was given by the complainant and his evidence was generally corroborated by three independent witnesses, Messrs Trevor Glover and Tane Zanders and Ms Chantelle Edmonds. Another person who witnessed the events took down the number of the appellants’ car and it was this which led to the appellants later being spoken to the police after which they were charged with wounding the complainant with intent to cause grievous bodily harm.
It follows from what we have said that defence case was that the complainant was the aggressor, that in the first stage of the post-incident altercation he had assaulted Manh, that after parking his vehicle he had returned carrying a knife and that they, to protect themselves, took the jack handle and wheel brace out of the car. So they claimed to have been acting in self-defence.
A knife was found at the scene. It was, potentially, an important exhibit. On the Crown case, the knife was produced by the appellants. On the defence case the knife was produced by the complainant.
The Crown case was formidable. Although the complainant is a bigger man than the appellants, there were two of them. The independent witnesses strongly supported the complainant’s account. None of them saw a knife in the hand of the complainant (although they likewise did not see a knife held by either of the appellants). The head injury suffered by the complainant appears to have been inflicted at an early stage in the encounter and with the knife, at least on the complainant’s evidence. This is also consistent with the medical evidence. If so, this perhaps points to the knife having been produced by the appellants. We say this because there was no evidence to suggest that the appellants ever removed a knife from the complainant and the general account of the struggle given by the complainant and the independent witnesses was not really consistent with the appellants ever having disarmed the complainant.
At trial, neither of the appellants gave evidence. But each of them had made a full statement to the police. So there was an evidential basis for their pleas of self-defence. After a retirement that was, in substance, only 40 minutes, the jury found the two appellants guilty. Subsequently they were sentenced to 4½ years imprisonment.

Grounds of appeal

Mr Haigh QC, for the appellants, made three main submissions to us, the first two as to conviction and the third as to sentence:-
The appellants were inadequately defended by their counsel;
The judge gave an inadequate direction on self-defence; and
The sentence was manifestly excessive.
We will deal with each of these points in turn.

First contention: the appellants were inadequately defended by their counsel.

Each of the appellants has sworn an affidavit as to the course of events associated with their trial. Neither is fluent in English and Manh is less fluent than Truong. Both can, however, make themselves understood in English. As well, at critical points in their dealings with their counsel, they had the assistance of interpreters.
They were separately represented. Truong was represented by Mrs Robin Turner and Manh by Mrs Irene West.
We have read affidavits sworn by the appellants and a friend and by their former counsel. There was no cross-examination.
Truong says that in the period between his arrest (in February 1999) and the taking of depositions in June and August 1999, Mrs Turner did not sit down with him and obtain a comprehensive statement from him as to what had happened. He says that in June and August 1999 he did have discussions with Mrs Turner at the court (during the depositions hearing) but that these were confined to whether he was prepared to plead guilty to the charge. He says that there were no further discussions between him and Mrs Turner prior to the commencement of the trial.
Truong further claims that at trial there were no structured discussions with Mrs Turner as to the underlying facts and his position. He says that his attempts to explain to Mrs Turner that the knife was originally produced by the complainant fell on deaf ears. He also says that he was never briefed to give evidence and that the decision not to give evidence was taken for him by Mrs Turner.
Manh has sworn an affidavit which is broadly to the same effect. He says that his counsel, Mrs West, never obtained a full statement from him as to what had happened, that the principal discussions at the depositions hearing were as to the possibility of pleas of guilty, that there were no further discussions prior to the trial commencing and very limited discussions during the trial. He also says that he wished to give evidence but that the decision that he not give evidence was taken by his counsel.
The evidence of the two appellants is supported by Olivia Don Yan Chen who is the girl friend of one of the accused.
Both appellants accept that their counsel did arrange for fingerprints tests to be carried out on the knife. These tests were negative; in other words there were no fingerprints found on the knife.
Mrs Robin Turner, in her affidavit, asserted that her contact with her client was greater than he remembered. She says that the discussions about a possible plea of guilty occurred much later than he alleges and were, in fact, on 11 May, that is in the week preceding the trial. She has produced a memorandum which Truong has signed recording what was discussed and decided. This memorandum refers to the maximum sentence he faced on the charge of wounding intent (14 years), the likely sentence (as assessed by Mrs Turner) which he would receive if convicted (5 years), the maximum sentence for the charge of wounding with intent to injure to which the Crown would accept a plea (7 years) and the likely sentence he would receive on a plea of guilty (3 years). Truong, as the memorandum shows, elected to go to trial.
She says in her affidavit that her client’s defence to the case was plain from the detailed statement which he had made to the police and that in her opinion it would not be necessary or helpful for him to give evidence. She accepts that there was “no detailed rehearsing of the event” but says that this was not required. Her affidavit does not specifically address who made the decision that Truong would not to give evidence. It is, however, implicit in her affidavit that she claims that this decision was at least acquiesced in by Truong.
Mrs West has responded to the allegations against her in a broadly similar way to Mrs Turner. She says that far more time was spent with Manh than he alleges, and this with the assistance of an interpreter. She says that the possibility of a plea to a reduced charge was only discussed on 11 May (the same date as the discussion between Mrs Turner and Truong) and that an explanation along the lines recorded in writing by Mrs Turner was given to Manh. She says that Manh’s account of events which he was giving around the time of the trial differed somewhat from what he had earlier told the police. For this reason she was of the view that he should not give evidence (given that the inconsistency would be exploited in cross-examination).
On 11 May she took written instructions from Manh as to his decision to go to trial rather than accept the plea bargain and also to the effect that he would not give evidence. Manh signed these instructions. These instructions refer to the willingness of the Crown to accept a plea to a lesser charge and also to the three independent Crown witnesses and then goes on:-
I am firm in my resolve to go to trial, and I agree with my lawyer that there is no need for me to give evidence at trial
Although this memorandum indicates a joint decision that there was “no need” for Manh Toan Le to give evidence, the document as a whole makes it clear that Mrs West was not suggesting to her client that the case against him was so weak that the giving of defence evidence was unnecessary. Rather it looks like a joint decision that Manh would not be giving evidence. Mrs West says that her client never sought to resile from this position.
The discussions on 11 May were at court at a call-over of the case.
For each of the accused the decision not to give evidence was understandable. Each had given a full exculpatory statement. So their accounts were before the jury. The Crown case was formidable and defence counsel may well have taken the view that the appellants were going to struggle explaining it away in their evidence. So each faced difficulties in cross-examination. This was particularly so in the case of Manh given inconsistencies between what he was telling his counsel at the time of his trial and what he had said to the police when interviewed.
We can see no error on the part of counsel in their view that the appellants should not give evidence. Counsel were well placed to form an assessment as to whether the appellants would advance their prospects of an acquittal by giving evidence – far better placed than we are.
That conclusion that counsel were not in error in their assessment whether the appellant should give evidence is not an end to the issue. The appellants did have a right to give evidence if they wished to do so. On their affidavits, they were deprived on that right by decisions made unilaterally by their counsel. As we have noted, Mrs Turner, in her affidavit, does not rebut Truong’s complaint that she made the decision that he not give evidence. Nor did she obtain a signed statement from him on the issue. Mrs West did obtain such a statement from Manh, but this was in advance of trial. On Mrs West’s evidence, the decision was not re-visited during the trial.
The decision of the Privy Council in Sankar v The State of Trinidad and Tobago [1995] 1 All ER 236 illustrates the point that where counsel so acts as to deprive an accused of the choice whether to give evidence or, in jurisdictions where this is allowed, a statement from the dock, an appellate court is highly likely to find that there has been a miscarriage of justice. The decision of this court in R v McLoughlin [1985] 1 NZLR 106 illustrates the requirement that an accused be afforded “every proper opportunity to put his defence to the jury”, see the remarks of Hardie Boys J at 107.
On the other hand, it is the duty of defence counsel to advise their clients, sometimes firmly. In a case where an accused has gone along with the firmly expressed advice that he or she should not give evidence despite knowing that he or she has a right to insist upon giving evidence, this cannot be regarded as a denial of the right to give evidence.
We have concluded that the appellants have not established that they were deprived of the right to give evidence. Our reasons are:-
Their affidavits are not reliable accounts of the events which they describe. It is clear that the discussions about a possible plea bargain occurred otherwise than they described. It is clear, as well, that both defence counsel spent far longer on preparation of the case than the appellants allege.
The defence was obviously a team effort and, in particular, there was a great deal of liaison between the two appellants. Both signed documents on 11 May resulting from discussions at court with their counsel. It is clear that Manh discussed the possibility of giving evidence with his counsel and a joint decision was taken that he not give evidence. The context in which he signed this document must have made it clear to him that he had a right to give evidence if he wished. We cannot accept that Truong did not also recognise that he had such a right (given the sort of discussions one might expect to have occurred between Truong and Manh).
The depositions hearing involved the giving of some oral evidence. So the nature of the process which was going to occur at trial must have been generally apparent to the appellants before the trial started. Given that and the process which occurred at trial and, as well, what the appellants have said in their affidavits, it is clear enough that they knew that it was possible for them to give evidence at trial.
Nothing surprising happened at trial. The responses of the complainant and the independent witnesses to the cross-examination was entirely predictable given their statements and what had occurred at the preliminary hearing. So there was no tactical necessity to revisit decisions made before trial.
So we are left with the view that, reluctantly or otherwise, Truong and Manh did go along with decisions which were primarily taken by their counsel to the effect that they not give evidence.
We recognise that Mrs Turner’s affidavit does not address in any real detail Truong’s complaint that he was not permitted to give evidence. We do not, however, read into this an acceptance by her that she did indeed deny him this right. It would be very surprising if she had not told Truong that the final decision on this was for him to take. As we have already noted, it would be very surprising if Truong did not know this anyway. As we have also noted, Truong’s affidavit in other respects has been shown to be unreliable. Leave was not sought to have Mrs Turner cross-examined.

Second contention: the judge gave an inadequate direction on self-defence

The trial judge directed the jury as to self-defence as follows:-
Normally, it is unlawful to go about or set about, hitting somebody. You have no cause to do so. But in this case, the issue of self-defence has been raised.   Self-defence is not something that the accused have to prove. They do not have to come into Court and prove that they acted in self-defence. The Crown has to prove that they did not, or were not acting in self-defence. Our Crimes Act, which controls what is and what is not a crime, states quite clearly this:-
“That everyone is justified in using, in the defence of himself, such force as in the circumstances as he believes them to be, it is reasonable to use.”
In other words, if self-defence is an issue, then the Crown have to negative the self-defence. People are entitled to use self-defence, and if they are, then they are justified in what they are doing, and what they are doing would not therefore, be unlawful. But when you come to consider this issue of self-defence, there are three factors that you have to look at. The first is that you have to decide what the accused believed the circumstances were at the time. That is to be considered from the point of view of the accused. What did they believe was happening at the time? What did they think was the nature of the attack, or threat, that was directed at them? You assess what they were thinking by looking at all the evidence. You look at the evidence as a whole. When you are considering what they are thinking, you have to put yourselves in their minds, in their shoes. You look at all the evidence. Were they, in their own minds, justified in thinking that they were going to be subject to an attack?
The second point is, bearing in mind what the accused believed was happening at the time, were they acting in self-defence, to prevent harm to themselves? Again, that has to be considered from their point of view. Were they acting in self-defence, to prevent harm to themselves? Did they believe themselves to be in danger of bodily harm?   Were they using force to defence themselves against that danger? You assess that by looking into the accused’s minds, but taking into account all the evidence that you have heard. If you are satisfied, of course, that they could not believe that they were in any sort of danger, then you need go no further, because the Crown will have satisfied you that the issue of self-defence did not really exist, and if the issue of self-defence did not exist, and you are satisfied with all the other ingredients of the charge, then you would be entitled to convict.
Bear in mind that it is implicit when thinking of self-defence, that the accused acted to meet a threat, which they believed to exist at the time. The law does not protect a person from the consequences of acting out of revenge, or out of retribution, so if you are satisfied that the threat had passed, if you find in fact there was a threat – or the accused believed there to be a threat – and they were acting in retaliation to get back at somebody, then that would not be self-defence. If you however, think that there was at least a reasonable possibility that they believed that they were in danger, and that they were taking steps to avert that danger, then of course, you have to go down to the third step, which is this – was the degree of force that they used to avert the danger, as they perceived it, reasonable? Here, it is not the degree of force which they thought was reasonable, which is the point, it is the degree of force which you, as members of the community, think is reasonable at this point. The law does not give people a blank cheque to use such force as they might like, even when they are defending themselves.   Obviously, in the heat of the moment, one cannot always make a fine judgment on what degree of force might be reasonable.   You only have to look at it with reality and common sense – if someone threatened you with a stick or something of a minor nature, then it would be unreasonable to shoot at them, or to take to them with a knife or an iron bar.   On the other hand, if you think it was a very serious threat, then it might, in your view, justify using measures that have been illustrated in this case. That, and the degree of force that was used – if you find that they were justified in using it because they had, in their own minds, a need to defend themselves – then the degree of force they used is a matter for you.
There is quite a lot to remember and to take into account, as you consider the evidence. It is to reflect the ingredients of the charges, the wounding and the intent to wound; that they were both in it together, they were parties to the charges; and the issue of self-defence, before you can convict has been put to one side, on the basis that they could not have had any reasonable fear of any harm to themselves, and that if they did, that the steps they took were unreasonable. The question of self-defence is a hurdle that the Crown have to overcome. Of course, it is a question for you to decide whether that has been done.

The complaint here is that when the judge cited from s 48 of the Crimes Act he said:-
That everyone is justified in using in defence of himself, such force as in the circumstances as he believes them to be, it is reasonable to use.
Had he taken this direction literally from s 48, Crimes Act he would have said:-
That everyone is justified in using in defence of himself or another, such force as in the circumstances as he believes them to be, it is reasonable to use. (emphasis added).
The result is that Mr Haigh QC has been able to make the following submission:-
... with two accused being tried before the jury and self-defence being an issue it was necessary for the Trial Judge to direct the jury that there was a right under Section 48 for a defending party to use force to defend any other person. Not to do so was a significant omission and results in an inadequate direction as to the law on self-defence.
In their statements to the police each of the accused suggested that each had, to some extent, been acting in defence of the other. This is particularly so of Truong’s statement. So we accept that the judge should have explained to the jury the concept of acting in defence of another as a component of self-defence.
Mr Haigh said that his challenge was not just a matter of semantics. He sought to illustrate this by referring to the case of Truong. He said that Truong’s statement very clearly asserted that he had acted in defence of Manh. He said that Truong’s defence depended on the situation as he, that is Truong, saw it at the time - and that this situation included the danger his brother faced.
Contrary to Mr Haigh’s contention and the force with which it was advanced, we think that this point is semantic.
The judge, in his directions on self-defence, treated the two appellants collectively, eg. “what were they thinking”, [w]ere they, in their own minds, justified in thinking that they were going to be subject to an attack”, “were they acting in self-defence, to prevent harm to themselves”. As well, towards the end of this part of his summing up the judge said
If you however, think that there was at least a reasonable possibility that they believed that they were in danger, and that they were taking steps to avert that danger, then of course, you have to go down to the third step - was the degree of force they used to avert the danger, as they perceived it, reasonable?”
So there is no hint in the summing up of the defence being available to each accused only in relation to actions taken by that accused in defence of himself. On the defence case the complainant was a threat to the safety of both of the appellants collectively and they responded together to that threat - that joint peril - which they both faced. The judge, in his summing up addressed the case on this basis.
It must be remembered that the primary focus of the case was on whether it was the appellants or the complainants who were the aggressors when the second stage of the incident started. This very much came down to who first produced the knife. If it was the complainant who first produced the knife, then the threat he posed at that stage was to the two appellants and their subsequent behaviour could fairly have been treated as a response to that threat. If it was not the complainant who produced the knife, then the self-defence argument was untenable.
We think that the reason why the judge omitted the words “or another” was because he was focusing on the position as it was at the start of the second stage of the incident. At that point, any threat posed by the complainant would, on the accounts given by the two appellants, only have been to them collectively. Further, we think that he focused on the position as it was at the start of the second stage of the incident because this was the way the defence had been advanced at trial. At to this we note that when the judge summarised the defence case as to self-defence he said:-
The defence are saying to you that in this case, the accused believed that they were under threat, that there had been a preliminary round that gave them cause for that, at the car – the aggressive attitude which they tell you about at the car – followed by the complainant getting the knife. They say that caused them to act in the way they did, in self-defence.

This is a plain reference to the position as it was when the second stage of the incident started.

In light of those factors, we see no risk of the jury having misappreciated the issue which the self-defence arguments gave rise to.
So we reject this ground of appeal.

Third contention: the sentence was manifestly excessive

In his sentencing remarks the judge reviewed the facts and then went on:-
Yours was a wanton and callous attack on an unarmed man. I notice that neither of you gave evidence before the jury, in support of this veiled issue of self-defence, and yet, when I read the Probation reports, you are still saying that is why you acted in the way that you did. You elected to defend the charge, so I can give you no credit for a guilty plea.
It seems from the Probation report, that neither of you are prepared to recognise any wrong doing on your part. There is not one word of regret, remorse or apology from either of you.
I regard these as aggravating factors as far as your behaviour is concerned:-
·     Firstly, the seriousness of the assault, involving a number of weapons;
·     The lack of any recognition on your part, of responsibility; and
·     The lack of any remorse, regret or apology.
The law is clear. This charge carries a potential penalty of fourteen years imprisonment.   By virtue of Section 5 of the Criminal Justice Act, the Court must impose a period of imprisonment unless there are special circumstances that would justify otherwise. In your case, there are definitely no special circumstances. A period of imprisonment will have to be served. The question I ask myself is, for how long?
The Crown has submitted that an appropriate starting point in respect of a period of imprisonment, would be three to five years. That is a starting point, before I consider what I have already outlined as being the aggravating factors.
Your counsel, this afternoon, have said all that could possibly be said on your behalf in mitigation, that is that you are both comparatively young, in your early twenties; that neither of you have appeared before in the Court, for significant offending; and that you are both industrious and hard workers. There is not much more than can be said for either of you.
In determining the appropriate sentence, I recognise that there is a need for deterrence for this type of offending, not only for you, but for others who might be minded to simply attack innocent members of the public, with weapons, bars and knives. The Court needs to reflect the proper concerns of victims in cases such as this, and the concerns of society as a whole. It is fortunate indeed, as your counsel has pointed out, that this victim did not suffer more serious injuries than in fact, he did. I have already described the eight centimetre cut on his head, down to the skull, but he also suffered bruising to his upper body, causing pain and discomfort. He says that as a result of the assault he – and he is a big man – is scared of approaching people in relation to minor matters, because he does not know what will happen.
He acted responsibly. You acted entirely irresponsibly.
In imposing the penalties I do, I have to reflect society’s condemnation for this type of offending, which really arose out of road rage on your part, and the call by society for stiffer penalties in relation to offences of violence. Three to five years is the tariff adopted as a starting point, at least, for offending of this nature, with the outcome that happened to Mr Taulapapa.
I regard you at the higher end of that range. In my view, the starting point for you is five years. However, making some deduction for the mitigating factors that I have outlined, your age; the fact that you have not appeared in Court before on significant matters; and your good work record, and making no distinction between either of you as to your part in the offending, you are each sentenced to four-and-a-half years imprisonment.
The judge plainly had in mind the guidance provided by R v Hereora [1986] 2 NZLR 164 and restated in R v Clotworthy (1998) 15 CRNZ 651. He saw this as an impulsive act of violence involving the use of weapons and thus as attracting a starting point sentence of 3-5 years.
Ms Hastie for the Crown challenged the view that this was an impulsive act of violence. She noted the deliberation involved in extracting weapons from the boot of the car. She also noted the pursuit by the appellants of the complainant up the driveway. The judge, however, treated the case as involving impulsive violence and given that the whole incident can have taken no more than a few minutes from start to finish, we agree with that assessment.
Mr Haigh contends that that the appropriate starting point sentence here was significantly less than 5 years. He seeks then to have that starting point sentence reduced to reflect the good records which both appellants have, one a first offender and the other with no prior convictions for violence, and the probability (as assessed by the pre-sentence report writer) that neither will re-offend. He suggested that an appropriate term was three years.
The fundamental issue here is the starting point although we are, of course, required to look at the case in the round.
The judge acted on the basis that the wound to the complainant was caused by the knife (which was what the complainant said). This was at least consistent with the medical evidence and it was open to the judge to sentence on the basis of his assessment. So this means that offence must be regarded as serious. The use of weapons, and particularly knives, in emotionally charged confrontations carries a severe risk of death or serious injury. The courts must respond accordingly.
That said, we are satisfied that the judge’s starting point of 5 years was too high. This put the case at the top end of the relevant Hereora category. But the actual injuries suffered by the complainant were comparatively mild. Moreover the complainant, consistently with the favourable impression he made on the judge, had forgiven the appellants. This was a spur of the moment offence committed by young men who were not out looking for trouble and were generally of good character. In his categorisation of the offending, the judge referred to the appellants’ lack of remorse and failure to accept responsibility for their offending as “aggravating factors”. This is not correct. It is not appropriate to allow a starting point sentence to be inflated by such factors (which will be present, in whole or in part, in virtually any defended case). Their true relevance lies in determining what if any discount is to be allowed from that starting point sentence. Finally we note the willingness of the Crown to accept a plea bargain. While the appellants could not have fairly expected to be sentenced on the basis which would have been available if they had pleaded guilty, the Crown’s willingness to reduce the charge again suggests that the case is not right at the top-end of the relevant Hereora category.
We think that the appropriate starting point sentence here was 4 years. Consistently with the approach of the judge, we reduce that to 3½ years to allow for the mitigating factors to which he referred.

Disposition

The appeals against conviction are dismissed. The appeals against sentence are allowed. The sentences of four and a half years imprisonment are quashed and replaced with sentences of three and a half years.

Solicitors

Lucas France & Partners, Manukau City for appellants
Crown Law Office, Wellington, for respondent

[2000] NZCA 199

14 September 2000