Bui v The Queen; Hargrave v The Queen [2011] VSCA 404

Bui v The Queen; Hargrave v The Queen [2011] VSCA 404 - VSCA 2011 case summary — Zoe

[52]

Adam: He's saying, that girl has to go...

Adam: Yeah, he said man you have to make sure, that they get rid of this girl an' you can't do it an' you've got to be somewhere away, so they wont - can't get you - because you're the only link at the moment. If they don't do something about it. (Inaudible). I don't think they realise.

...

Adam: And he's away. I was talking to one of Luke's bosses yesterday an' he was talkin' about these Cambodian brothers in Sydney who run everything and pop Lebbo's.

Garry: Mm'mm.

Adam: He said they did - they do murders and shit all the time, he said and all of a sudden all the witnesses will get knocked and the murder's basically dropped. And I was talking to Matty and he goes I know who whose [sic] them cunts are, they're evil cunts. He said, why do you think they get dropped. Without witnesses to the crime they've got nothing.

Garry: They've got nothing. Without that they're fucked.

Adam: But she can talk to whoever she wants - if they weren't there, it's doesn't matter what she told her friend.

Garry: No.

Adam: So I'm thinking, you grab Luke an' you tell 'im Kylie's going' round an' saying that you were there that night, didn't ya.

Garry: He was.

Adam: No, no. You grab Luke, you pull him aside and you go man you need to do something right fucking now. Kylie's goin' round saying that you were there, and you need to say to Luke, 'Do you realise if Adam goes away this business (inaudible) it's not gonna happen at all.'

Garry: It's like, yeah -

Adam: You need to grab them an' you need to explain that to them so they understand the urgency about it. 'Cause they're all just sitting' there, thinkin' oh, point to Adam, because nothin' - we're right.

Garry: They can't just say nothin'.

Adam: No.

Garry: If they won't, they may never (inaudible) by yourselves.

Adam: No, but as I'm saying is you need to grab him an' just say to him, you make it up an' just say, Kylie going round an' saying your name now.

Garry: So who did I hear it from?

Adam: (Inaudible) ... said it to you. An' you say to Luke, 'She needs to go now.'

Garry: I'm not gonna - I'm just gonna say, if he says who said - I'm not gonna tell you who said it. I'm tellin' you it's been said.

Adam: Yeah. Alright, so, you can just say to him - Luke ya understand, without you, this business doesn't happen, an' with this girl floatin' around - she can put us all away.

Garry: So where they gonna put her?

Adam: Grab her, they can take her away somewhere. They'll never find it again. They can do that.

Garry: (Inaudible). They better do better than they did last time. I tell ya (inaudible)

[86]

Whether evidence amounts to corroboration is governed by the fundamental principle that it must be evidence - independent of the witness to be corroborated - which tends to confirm the evidence of that witness that the crime was committed and that the accused committed the crime. This principle has from time to time been misconceived as requiring the corroboration evidence itself to be probative of the fact that the accused committed the crime. Vincent JA in R v Taylor [33] noted that there has been a 'remarkable persistence of the misconception' that evidence relied upon as corroboration 'must itself be probative of guilt'. The present argument rests upon this very fallacy.

In BRS v R,[34] Brennan CJ observed that: '[I]t is sufficient to constitute corroboration that the evidence should strengthen the evidence to be corroborated as to a fact on which proof of guilt depends'. The essential quality of corroborative evidence is that it must independently 'confirm', 'support' or 'strengthen' the evidence to be corroborated, by rendering that 'other evidence more probable.' It does so by providing support, from a separate and more trustworthy source, for the truth and reliability of the evidence to be corroborated. Hence there is no distinction for the purposes of corroboration between evidence which itself tends to implicate the accused in the commission of the offence charged and evidence which is capable of supporting the evidence of the witness to be corroborated. Evidence may be corroborative even though it may itself be regarded either as consistent with innocence or as equivocal. It is for the jury to determine whether it is corroborative.

Typically, it is the evidence to be corroborated which will establish the commission of the crime and the accused's involvement. The corroborative evidence need only render that account more probable in some material particular. The corroborative evidence, 'standing alone', need not establish the commission of the crime or the accused's involvement in it.[35]

[98]

With respect we are not persuaded that it is either necessary or desirable so to restrict the circumstances in which a jury may find evidence of postoffence conduct to be probative of guilt of a specific offence as opposed to a lesser included offence or other offences on a multiplecount presentment[39] or, as in the present case, other offences disclosed by the evidence. The interrelationship between evidence of consciousness of guilt and other evidence is inherently more complex than that, and the permutations and combinations of facts in which it may fall to be applied are infinitely variable. As Winneke P in effect observed in R v Burrows,[40] exclusionary rules of the kind propounded in Heyes [41] unnecessarily confine trial judges where post-offence conduct may be relevant and probative.[42]

Of course, there will be circumstances in which post-offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative or, another count on the presentment where there is a multiple-count presentment or another offence where it is disclosed by the evidence. For example, if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of the killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder. On the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence. And the jury would need to be so instructed.

But in most murder cases the evidence is more extensive than that. Usually, the Crown presents evidence about the relationship if any between the deceased and the accused, the events leading up to the time of death, the place and time and the circumstances of the death, the means of killing and the cause of death, other injuries which may have been inflicted on the deceased and any injuries suffered by the accused in the course of the killing.

Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused's words and conduct before and during the killing and forensic evidence, may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent.[43] And comparable reasoning is equally applicable in trials for other offences.[44]

[117]

The third element that the Crown must prove is that the accused intentionally assisted or encouraged the principal offender to commit the crime of murder. In this case it is alleged that Aaron Hargrave and Ngoc Bui did this by what is called aiding and abetting. A person aids or abets, it is a lovely old expression, isn't it, abets, aids and abets the principal offender, being Adam Hargrave in this case, if that person either intentionally helps him to commit the offence, or intentionally encourages him by words or presence to commit the offence, or intentionally conveys to him by words or presence and behaviour that he supports the commission of the offence.

A person can aid and abet an offence by words, action, or both. However, in most cases he needs to do something more than simply be present when the offence occurs. He needs to say or do something that assists or encourages the principal offender to commit that crime.

This means that to have aided and abetted by conveying support for the commission of the offence the accused must have done more than simply agreed with what the principal was doing. You must find that he communicated or attempted to communicate his support to the principal offender in a way, and I will take out the words 'principal offender' and I will use 'Adam Hargrave', because that is what you have to be satisfied of, right? You must find that he communicated or attempted to communicate his support to Adam Hargrave in a way that Adam Hargrave could have been aware of, and that he indicated his willingness to assist Adam Hargrave if required...

In respect of Ngoc Bui, the Crown say Ngoc Bui has demonstrated his support for Adam Hargrave and his actions by walking over to him and assisting him to unjam the gun that was misfiring. The description given by Andrew Johnston was that they were both mucking around with the gun after it had misfired, and that the next he saw the gun it was in Adam's hands immediately after and he heard it fire again. That is the evidence that the Crown relies upon as demonstrating support and encouragement for the actions of Adam Hargrave in shooting Michael Daou.[48]

You do not have to be satisfied that Aaron Hargrave or Ngoc Bui, that their words or actions caused Adam Hargrave to commit the crime. A person can assist or encourage someone to commit an offence, even if that other person already intended to commit that offence.

You also do not need to be satisfied that Adam Hargrave was actually assisted or encouraged by either Aaron Hargrave or Ngoc Bui's behaviour. As long as Adam Hargrave and/or Ngoc Bui, or both, endeavoured to assist and encourage in circumstances in which Adam Hargrave could potentially have been assisted or encouraged, then if that is so, that element would be met.

However, you must be satisfied that Aaron Hargrave and Ngoc Bui intentionally aided or abetted the commission of this offence of murder. That is, you must be satisfied that by doing what he did, in relation to the particular accused, either Aaron Hargrave or Ngoc Bui intended to help, encourage or convey support to Adam Hargrave to commit that offence.

This does not mean you have to find that Adam Hargrave or Ngoc Bui intended that Michael Daou would die, it will be sufficient if you find that Aaron Hargrave or Ngoc Bui, or both, intended to assist or encourage the principal offender to commit the conduct that ultimately caused that result.

I am not going to put any arguments to you in respect of this, the Crown have put forward why they say that you should be satisfied it is encouragement. The defence have not put any particular arguments to you because they say this conduct just did not happen. So there is nothing they can put to you, because they say this is just not true, this is a figment of Andrew Johnston's imagination, he has made this up, so the first thing that you really have to be satisfied of is did this occur, did, in the case of Aaron Hargrave, he actually have a gun that he handed to Adam Hargrave?

In respect of Ngoc Bui, did he actually do anything to assist in the unjamming of that gun? Did that occur? Did that exist? That is really the fundamental issue in respect of this charge that you need to look at, because the defence have said to you Andrew Johnston is just making this up, he is telling lies.

So to summarise it. Before you can find Adam Hargrave or Ngoc Bui guilty of committing murder by aiding and abetting the prosecution must prove to you beyond reasonable doubt in respect of each accused person, firstly, that Adam Hargrave committed the murder of Michael Daou. Secondly, that Aaron Hargrave or Ngoc Bui, or both, whoever you are considering, knew of or believed in the essential circumstances needed to establish murder, and three, that Aaron Hargrave or Ngoc Bui intentionally assisted or encouraged Adam Hargrave to commit murder by either helping him, encouraging him or conveying their support.

[156]

Defence counsel submitted, that you could not rely on Kylie McDonald's evidence against any of the accused, because she is not a witness of truth and that, she has been manipulated by the police, into providing a final version of the events, that is just not true. You have heard almost all defence counsel, I think I exclude Mr Shirrefs from this, but almost all defence counsel, refer at some length to her admitted lies, that she told to the police in her initial record of interview and her first two statements in November of 2006...

The other defence counsel said to you, and I exclude Mr Toohey again, that you have to be exceptionally careful in relation to Kylie McDonald, because of the following reasons, and I will start [sic] them again. Because she is not, they submit to you, a witness of truth. That she is a person who has been manipulated by the police into providing a final version of the events that occurred that night, which is just plainly not true.

Counsel referred at some length to her admitted lies that she told the police in her initial record of interview and her first two statements in November of 2006. They also referred you, and you will recall this, it was played again during the final address, in fact, of Mr Saunders. They referred you to part of that interview, in which she agreed, in that part that was being played, that she was not telling the entire truth, and other parts that were read to her, because the DVD was not capable of being played. That also reminded you of her excessive drug taking around that time, the issues that it would create with her memory and her heavy drug trafficking.

It is submitted that, that makes her a dangerous witness upon which to rely, and the effect of all of this evidence about Kylie McDonald is, that you must approach her evidence about any of the accused men with special care, and you must have regard to the warning I am about to now give you. It is dangerous to convict an accused on the unsupported evidence of a witness who is affected by this combination of factors....

But I will repeat that warning. It is dangerous to convict an accused on the unsupported evidence of a witness who is affected by this combination of factors, being the factors to which I have just referred. This does not mean that you cannot convict an accused on the basis of Kylie McDonald's evidence. You may convict an accused, but you should not do so, unless you have subjected the evidence to close and careful security, and after such scrutiny, you are satisfied of its truth and are satisfied that, it is safe to convict upon it despite its unreliable source.

In considering the safeness of convicting on Kylie McDonald's evidence, you should have regard to any supporting evidence led in this trial. By supporting evidence, I mean evidence from a source that is independent of Kylie McDonald, that is not from her testimony in this court, that tends to show the truth of Kylie McDonald's evidence of the accused's guilt.

[179]

After examining a good many of the cases, we think that there are two currents of authority and the first of these is in cases of murder, manslaughter and the like. In such cases the jury have to consider the whole of the accused's conduct and to decide on the basis of it all and from among a number of different possibilities which of the elements of the offence charged are established to the required standard. The clearest example of the jury's being permitted in such cases to arrive at the result by different routes is to be found where the Crown puts its case in the alternative, being unable to choose between them. It may be alleged that the victim was killed by the accused either personally or by an aide, the evidence leaving it unclear which, and in such a case it is enough if the jury agree that it was one or the other; beyond that, agreement is not required.[79]

That has been so, it seems,[80] since Swindall v Osborne[81] in which the victim was killed by one of two carts, the driver of one inciting the driver of the other to kill the deceased. The conviction of one driver was upheld because, if he was not the principal, he was an accessory, having incited the other: see also, on murder and manslaughter, White,[82] Giannetto[83] (drawing on Thatcher[84]), Serratore[85] and Leivers and Ballinger.[86] In respect of other crimes, see also Du Cros v Lambourne[87] (driving at a speed dangerous to the public when the defendant was either driving himself or, being a passenger, inciting the driver), Gaughan[88] (damage to a motorcar) and Fitzgerald[89] (setting fire to a scooter).

At first the case of true alternatives may seem obvious enough; but if the uncertainty stems from a conflict between witnesses it may well be that individual jurors might arrive at a more definitive result, and not necessarily the same definitive result, depending upon whose evidence is accepted and whose rejected. Nor does the case of true alternatives stand alone; for in Cramp,[90] the accused, who was found guilty of manslaughter, had allowed a teenage girl to drive his car after plying her with drinks and urging her to speed, doing so for more than three hours. The case was presented on the basis that death resulted from the accused's unlawful and dangerous act, or from his gross negligence, or from both. No direction was given that the jury had to be unanimous on the relevant basis of guilt, and the conviction was upheld by the Court of Criminal Appeal in New South Wales. In short, this was said to be because the jury were obliged to consider the whole of the offender's conduct in deciding whether he caused the death by his unlawful and dangerous act or by his gross negligence and that, while the process of reasoning was different, each result rested on substantially the same factual basis. What was different was 'the legal formulation of liability'; the alternative bases of liability 'did not involve materially different issues or consequences', an expression earlier adopted by the Court of Appeal in Queensland in Leivers and Ballinger.[91]

Leivers and Ballinger was a case of murder in which one of the essential issues raised for the jury was whether the appellant knew that the deceased was to be murdered or believed only that he was to get a severe beating (with murder as its probable consequence). As guilt on the first basis necessarily subsumed guilt on the second, there was no need, it was held, to require that the jury be unanimous about the one or the other; but it was otherwise, suggested the President and Moynihan JA (drawing upon the opinion of Lamer, J in Thatcher) 'if the alternate bases of criminal liability...involve materially different issues or consequences'.[92] In the later case of Dally,[93] Smart AJ, speaking for the Court of Criminal Appeal in New South Wales,[94] disagreed with this suggestion,[95] Dally itself being a case of manslaughter consequent upon provocation or alternatively manslaughter by an unlawful and dangerous act ― although once again the court was of opinion that any juror who was satisfied of the first must also have been satisfied of the second.[96] It may be noted that in Boreman,[97] where the Court of Appeal in England considered that a direction for unanimity was needed when there were two possibilities, discrete in time, as to the cause of the victim's death, the court none the less found no miscarriage because on the facts the jury must have been in agreement: contrast Carr[98] in which it seems that such a finding was not open.[99]

[299]

In relation to the status of your health as at the time of the plea, that being in May of 2009, Dr Edward Morgan from the Melbourne Assessment Prison gave evidence before me. His role has been your day-to-day medical care, including co-ordinating specialist appointments and managing your daytoday medications, which include hormonal implants, daily tablets, all of which are used to suppress the growth of the cancer. Every three months a PSA of prostate specific antigen test is performed. It is considered a marker of the disease. Your level has remained fairly constant until September or October of 2008 when your levels began rising again. You were placed on additional medication and your prostate levels fell.

Dr Morgan said that he had spoken to your urologist, Mr Jeremy Goad, who expressed surprise that you were doing as well as you were. He said that Mr Goad expected that you would have had a much poorer prognosis because you have basically had a very aggressive form of prostate cancer and that there was always the real risk of the progressive and invasive disease returning.

He referred to the figures given by Dr Rick Milner, as to life expectancy rates in general terms, that persons with a prostate cancer - those being based on studies of men with similar conditions to yours - those statistics were that 97% survive one year, 68% survive five years, 49% 10 years, and 30% 15 years. There is a prospect that you may undergo a further re-section of the prostate which may alleviate some of your symptoms, which include blood in the urine and difficulty in passing urine.

In October 2008, you had a bone scan and a CT scan which showed there had been no metastatic spread beyond the prostate. It was noted in crossexamination that you have the full specialist services of St Vincent's Hospital available to you, and day-to-day care from doctors at the prison, who also liaise with the specialists in an attempt to manage your health as best you can.

Your counsel at the conclusion of your plea hearing on 8 May submitted that he wished to make further submissions in respect of providing up-to-date reports from your specialist and submissions with authorities on the question of the proportion of life remaining and how that impacts upon sentence....

On 1 September a report was presented which had been prepared by your previous specialist, Dr Jeremy Goad. He related your history again and stated that he has not seen you since his last review on 7 September 2006 at the Peter McCallum Cancer Centre. He is however, the Director of Urology at St Vincent's, and your condition is cared for by the registrars at that hospital.

As a result of his citing of your materials, he was able to state that your PSA has slowly increased during 2008 to around 6.7, but with treatment has reduced again to around 3. You have recently had a CT scan of your abdomen and pelvis which were negative for metastatic disease, and you do not require additional therapy at this stage. Dr Goad, provided a further report also dated 31 August 2009 as to your prognosis, which I will quote in full.

The prognosis of this man is difficult to predict. When he presented 10 years ago Garry had a higher grade cancer. Graded as 9 out of 10 in terms of severity. Despite potentially a curative radiotherapy he has confirmed recurrent cancer as shown by the active disease resected at the operation I performed in 2006. The hormone therapy is essentially a palliative measure but can be effective in producing remission for a decade and rarely longer than this.

Remission from hormone therapy is gauged by the PSA level. Excellent remission is shown with a PSA of less than 1. This man showed an initial good response but evidence of failure and development of hormone resistant disease as shown by the rises in the PSA level between 3 and 6.

On the other hand he has not progressed to a metastatic, or secondary sites of disease, cancer, as would usually have been expected. The best guess as to when he would develop secondary disease, in my opinion, would be between two and four years time.

He should have regular imaging perhaps every six months along with a PSA test, and this would aid with timing for additional treatment with chemotherapy. Once again, this treatment is palliative only and has been shown to improve survival by a number of months only, on average. In my opinion Garry is likely to die from his prostate cancer within five to seven years.[154]

At a glance

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Judgment (424 paragraphs)

Bui v The Queen; Hargrave v The Queen [2011] VSCA 404 (7 December 2011)

Legislation Cited (2)

Cases Cited (23)