Duong Hai Nguyen v R, ATCN v R, Khanh Hoang Nguyen v R, Minh Thy Huynh v R.

Duong Hai Nguyen v R, ATCN v R, Khanh Hoang Nguyen v R, Minh Thy Huynh v R. - [2007] NSWCCA 363 - NSWCCA 2007 case summary — Zoe

[14]

1 MASON P: I have had the benefit of reading the draft of the decision of Smart AJ. 2 I agree with it and the orders proposed, save with respect to the sentencing matter involving the appellant Duong. 3 In my view, it was open to the primary judge to conclude, for the reasons he gave, that Duong's offence was above the middle range of objective seriousness. This conclusion entailed an evaluative judgment, as did the length of the stern sentence that derived from it. I am not persuaded of any appealable error in the primary conclusion or the sentence itself. 4 ADAMS J: I agree with Smart AJ. 5 SMART AJ: Each of the four abovementioned men appeals against his conviction of the murder of Linda Huynh and of maliciously inflicting grievous bodily harm with intent upon Hien Duc Phan. Each also seeks leave to appeal against the severity of the long terms of imprisonment imposed upon him. ATCN was 16 at the time of the offences. Duong Hai Nguyen was the principal (first degree) as he fired the gun and led the other men. The judge left the case to the jury in four different ways, namely that the firing of the gun was an act of a particular accused ie., Duong, that the firing of a gun was in furtherance of and within the scope of a joint criminal enterprise and on the basis that the firing of a gun was outside the scope of the joint criminal enterprise, but such firing which was both contemplated by the particular accused as a possibility and occurred while he was still participating in that enterprise (often referred to as extended joint enterprise). The fourth basis was that the particular accused was present intentionally aiding and abetting the shooter. As to each basis the jury were instructed that the Crown had to prove that, at the time a gun was fired, this was done with an intention to kill someone or inflict grievous bodily harm on someone. 6 The appellants' challenges fell into three main categories: (a) Wrongful admission of identification evidence (Minh did not rely on this ground) (b) Erroneous directions as to extended joint enterprise (c) Failing to advise the parties of the terms of a jury note inadvertently overlooked and to advise the jury in response to their request to clarify the definition of joint criminal enterprise in murder and joint criminal enterprise in manslaughter. 7 On the night of 6 January 2004 Tien Duc Nguyen was celebrating his birthday with a party in the courtyard of Billiards 2000 in Cabramatta. Billiards 2000 has a long front pool hall (towards the rear of which is the manager's counter and in which a number of people were playing), a smaller back pool hall, a small back room (which was being used for food preparation) and a back courtyard with tables, chairs, a barbeque and a raised garden bed. Around 11.00 pm that night four men, some few seconds apart entered the front pool hall and walked through it, in a purposeful fashion, to the rear of the premises. The first man to enter had a handgun and on the Crown case was Duong. The next two men were ATCN, aged 16, and Minh. Lastly came Khanh who was carrying a samurai sword concealed under some material. The parties were, for the purposes of the conviction appeal, prepared to proceed on the basis of the facts stated by the trial judge in his sentencing remarks, which have been edited: "1 On 6 January 2004 four males, some few seconds apart, entered a billiard hall known as Billiards 2000, located in Cabramatta and walked through it to the rear. To a substantial degree their entry and movement through the billiard hall, and the subsequent departure of 2 of them, was recorded via 2 CCTV cameras which were mounted on the ceiling of the premises. The men made no attempt to hide their faces or conceal their appearance. As they walked through the billiard hall the first man reached into his waistband. I have no doubt that what he reached for was a pistol which, though only as a dark object, is to be seen in a photograph as he entered. As he walked through, the fourth man pulled out a Samurai sword or something similar from a towel or other cloth under which it was concealed and threw the cloth, and a scabbard onto one of the billiard tables. As he left a little later, he retrieved these items.

[33]

22 The judge held: "25 The evidence of Senior Constables Young and Purcell made it clear that there were differences between the appearance of each of the Accused at about the time of the offence with which they have been charged and their appearance at the time of trial, differences which in the circumstances of the material available to the jury I regarded as significant. It is unnecessary for the purposes of these reasons that I detail those differences. Most are referred to in the transcript at pages 623-6 (Constable Purcell) and at pages 663-6 (Constable Young). 26 Prior to the officers giving evidence I myself had noticed differences between the appearance of each of the accused in the dock and their appearance as depicted in photographs tendered in evidence in the trial, some of which photographs had been taken at about the time of their arrest and some earlier. After the conclusion of evidence but prior to submissions on the voir dire I indicated to counsel in a document which became MFI 14 and subject to an order it be kept in the Court file my impressions in this regard. No counsel sought to argue against the existence of the differences reflected in the document and which in part at least accorded with the evidence given by the police officers. As a matter of convenience, I attach a copy of MFI 14 to these reasons. 27 Thus the circumstances here are significantly different from those the subject of remark in Smith v R . In the case of all Accused, the constables' assertions of identity are founded on material appreciably different from that available to the jury. It was thus not irrelevant on the basis evidence in Smith v R was held to be. Once that ground is put aside, it is clear that the constables' evidence is relevant." 23 Following the joint judgment of four Justices in Smith v The Queen 206 CLR 650 at [10] I accept that as to each of the four men the fact in issue was "Is the person standing trial the person who is depicted in the CCTV footage and the photographs as the first, second, third or fourth male respectively? In Smith at [11] the joint judgment made the point that because "the witness's assertion of identity was founded on material no different to the material available to the jury from its own observation, the witness's assertion that he recognized the appellant is not evidence that could rationally affect the assessment by the jury of the question" identified. Thus the assertion was irrelevant.

[36]

26 In his reasons the judge recognised that while some of the evidence of Constables Purcell and Young as to the appearance of the various accused was evidence of fact, some of their evidence was opinion evidence. At [28]-[30] the judge said: "28 While some of the evidence of Constables Purcell and Young as to the appearance of the Accused was evidence of fact, e.g. their description of the length of hair, bone structure of the face, and manner of walking, there is no doubt that some of their evidence, and that the subject of these reasons, is properly characterised as opinion evidence. I include in this category the officer's evidence to the effect that the persons depicted on the CCTV recording and the still photographs taken from that footage are the Accused. In my earlier reasons dealing with similar identification evidence from Ms Duong I set out, so far as is presently relevant, my understanding of the operation of s78 and remarked on a number of decisions or earlier judicial observations concerning ss78 and 79 of the Evidence Act and it is unnecessary to repeat much of what I there said. 29 In the case of each of Constables Young and Purcell also, I am satisfied that his evidence that a person depicted in the CCTV footage (and still) is a particular Accused is clearly based on what he has seen or perceived about, firstly, the real life appearance of that Accused and, secondly, what is depicted in the recorded footage. As I said previously, 'In the context of s78, each of these items - the word 'matters' most naturally springs to mind but I wish to avoid prejudgment or the appearance of it - may fairly be regarded as a 'matter' or 'event', most appropriately the former.' Again in the case of the evidence of the each of the 2 constables, "the difficulties of describing people, particularly their facial features, in a way which amounts to anything remotely approaching a definitive description, means that evidence of (his) opinion is necessary to obtain an adequate account or understanding of (his) perception of the identity of the persons depicted on the CCTV footage". The same remarks will often apply in the case of a walk. It is one thing to say that someone tends to roll from side to side. It is another to describe that tendency with sufficient precision to identify one person having that mannerism from others sharing it. Thus I regard the constable's opinion evidence as admissible within the terms of s78. 30 Although the degree of acquaintanceship with the Accused varied, I am satisfied that each of the officers has specialised knowledge concerning the appearance or identity of all 4 Accused, based on fairly extensive experience of them and that his evidence that the persons depicted on the CCTV footage (or stills) are the Accused is evidence of opinions based substantially on that knowledge and that the evidence of each comes within s79 also." 27 Duong, ATCN and Khanh submitted that the judge erred in admitting the two police officers purported identification of them on the basis that it was "lay opinion" and "opinion based on specialized knowledge". These appellants complained that the judge had not sufficiently identified what was evidence of fact and what was evidence of opinion. It was submitted that should the officers ultimate identification meet the threshold of relevancy it should have been regarded as opinion evidence and excluded. Further, it was evident that much of the final identification depended on the still photographs of poor quality. The still photographs could not have assisted the police officers in determining the physical movements and physical habits of the three appellants. They pointed out the limitations of still photographs, relying on the remarks of Hunt J in Carusi (1997) 92 A Crim R 52 at 55.

[110]

109 In Clayton relations between the two victims and the three applicants were at boiling point as a result of some incidents. The three applicants, each having armed himself or herself in some way with a weapon, went to the house of the female victim. The male victim was also there. There was evidence of the three armed applicants assaulting the female victim and one of them detaining her at knife point while there was a prolonged assault on the male victim. He was severely beaten and stabbed a number of times. One of the stab wounds caused fatal injuries. The prosecution could not identify which of the applicants inflicted the fatal injury. The prosecution's case of murder against each applicant was put in three ways: (i) each applicant had participated in a joint enterprise; or (ii) each had agreed to assault the deceased using weapons and reasonably foresaw the possibility that death or really serious injury might be intentionally inflicted upon the victim by one of them in the course of their carrying out the agreed assault (extended common purpose) (iii) the two applicants who did not inflict the fatal wound had aided and abetted the person who did, by intentionally helping, encouraging or conveying their assent to that person in his or her commission of the murder (accessorial liability) 110 At [17] the joint judgment said (omitting citations): "17. …If a party to a joint criminal enterprise foresees the possibility that another might be assaulted with intention to kill or cause really serious injury to that person, and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight. That the participant does not wish or intend that the victim be killed is of no greater significance than the observation that the person committing the assault need not wish or intend that result, yet be guilty of the crime of murder. " 111 At [25] the High Court stated that the case against each applicant had to be considered separately 112 At [26] the joint judgment stated: "26. If, as the prosecution contended was the case in respect of each applicant, the particular applicant under consideration was shown, beyond reasonable doubt, to have agreed with one or both of the other applicants to cause really serious injury to the deceased, a verdict of guilty of murder had to be returned. If the prosecution demonstrated beyond reasonable doubt that the applicant under consideration was party to an agreement with one or other of the applicants to assault the deceased to some lesser degree, and foresaw the possibility that death or really serious injury might intentionally be inflicted on the deceased in the course of that assault (otherwise than in self-defence), again, a verdict of murder had to be returned. In this latter respect, if persuaded beyond reasonable doubt that the applicant concerned went to the premises armed, or knowing that others were going armed, it would be open to the jury to infer that that applicant foresaw the possibility of assault with the requisite intent, but such an inference was not inevitable. "

[116]

118 On 5 May 2006 the jury asked, in writing, a question in the following terms: "If a joint criminal enterprise is established and we have identified intent on the behalf of one member of the joint criminal enterprise is that sufficient to establishment the same intent for all other members of that enterprise". (MFI 27) 119 The judge gave the following answer: "Members of the jury I have your note. I'm not sure that I understand all that you may have in mind by the terms of that note, but I will do my best to provide you with an explanation of the issue that seems to me to arise. If in what I now say I don't adequately answer your questions, would you please give me another note? But I will do the best I can. There are effectively three components of your note: If a joint criminal enterprise is established, 1, and then 2 - and you have identified intent on the part of one member, then you raise the third point, is that sufficient to establish the same intent for the other members, for all other members of the criminal enterprise? Now the third question is not one that arises. If you have my written directions there, and perhaps you remember them anyway at this stage, there were - and I will confine my attention for the moment to the murder without the manslaughter or malicious infliction of grievous bodily harm - there were four paragraphs in those written directions; the death caused by a deliberate act, that is number (ii) and I can put them aside because they don't seem to arise. In paragraph (iii) there were a number of dot points, that the deliberate act was one of four dot points, and (iv) that at the time the act was done, it was done with an intent to kill or do grievous bodily harm. So far as that intent is concerned, the issue is whether the person who did the act, had the intent. In looking at the intention required by paragraph (iv) of the murder directions, the only inquiry is as to the intent of the person who did the act. In looking to see whether someone else [ non shooters] is liable for that act, you address paragraph (iii) and the four dot points there. I will just say that again, and perhaps a little more shortly. You don't need to address -- CROWN PROSECUTOR: Excuse me your Honour, but the microphone is not amplifying the sound. HIS HONOUR: I will speak a little more loudly then, I'm sorry. You do not need to address the question of intent on what I will call the non-actors, the non-gunman. The question raised by paragraph (iv) is the intent of the gunman. To see whether others are liable, you look at the dot points under paragraph (iii). Now I think that should be an answer to the issues that seem to be troubling you in your request. Could I ask you whether there is any one there who thinks what I have just said does not adequately address your request? I don't think it appropriate for you to have a discussion here in the jury box, but that I think addresses the questions that I perceive as arising. Perhaps I'm saying go back to the written directions, precisely, although I can understand that perhaps I should have said in (iv) you look at the intent of the gunman, not the intent of others. Now, I have only given that explanation in relation to page 1, the murder direction. What I would say in relation to the other offences, or other possible offences, is along the same lines, but unless someone wants me to expand it page by page, I think I may only confuse you further. All right. I hope that is sufficient. If it is not and it obviously is tremendously important, please ask me another question. All right, would you go now." That answer did not address the gap in bullet point 3 as earlier explained. 120 The judge had received an envelope containing the jury note MFI 27 on 5 May 2006. Unfortunately there was a second jury note in the envelope which had not come out when the judge addressed MFI 27. 121 That second jury note read: "The jury would like the judge to clarify the definition of Joint Criminal Enterprise in Murder & Joint Criminal Enterprise in Manslaughter" 122 There were thus two requests for further directions and the judge did not deal with the second request.

[117]

123 I do not accept that the judge's answer to the first question also answered the second question. 124 The judge had given the same definition of "joint criminal enterprise" for both murder and manslaughter. The definition of joint criminal enterprise could not change but it seems that the jury probably needed further help in appreciating the difference between murder and manslaughter. 125 Adams J pointed out that in the manslaughter directions it was important to separate adverting to the possibility of the gun being fired and the different possibility of the gun being fired with murderous intent as that can lead to different verdicts. Proving beyond reasonable doubt that the co-offenders contemplated the possibility of the gun being fired with murderous intent is often a difficult task. 126 The Crown accepted that on the directions as given the jury would either have convicted the co-offenders of murder or acquitted them entirely. In my opinion the alternative on manslaughter was never fully put to the jury or considered by them. While there was force in the argument that this was a case where the co-offenders must have contemplated the possibility that the gun would be fired with murderous intent that was a matter of fact for the jury to decide. 127 A verdict of manslaughter rather than murder was a real possibility in the case of Minh, ATCN and Khanh. As the appellants were not shown the second jury note they were not given an opportunity to make submissions about the manner in which the question should be answered. 128 This further ground of appeal must be upheld. 129 The Crown case was that Duong was the shooter. He fired the shots that killed the deceased. The evidence to that effect was powerful. The evidence was also powerful that he went to the party with a gun with the intention of shooting someone. He led the group of men. He fired a number of shots from the gun at close range killing the deceased and wounding Hien Duc Phan. All the ingredients of the crime of murder were proved against Duong beyond reasonable doubt, namely Linda Huynh had died, her death was caused by a deliberate act of Duong in firing a gun at someone with the intention to kill someone or inflict grievous bodily harm on someone. The jury convicted Duong of murder. 130 Likewise the Crown case was that Duong fired the shots that wounded Hien Duc Phan. The evidence to that effect was powerful. The evidence was also powerful that Duong went to the party with a gun with the intention of shooting someone. Duong led the group of men to the party and fired a number of shots from the gun at close range killing the deceased and wounding Hien Duc Phan. All the ingredients of the crime of maliciously inflict grievous bodily harm with intent to do so were proved against Duong beyond reasonable doubt namely, that Hien Duc Phan suffered grievous bodily harm, that that harm was caused by a deliberate act of firing a gun at someone with an intention, at the time that the firing took place, to inflict grievous bodily harm on someone. The jury convicted Duong of maliciously inflicting grievous bodily harm with intent to do so. 131 What has been written in the case of Minh also applied to ATCN and Khanh. The errors which render a new trial necessary in the cases of Minh, ATCN and Khanh do not operate in the case of Duong, (against whom there was a strong Crown case). Duong's appeal against conviction must be dismissed in both cases. 132 As there has to be a new trial in the cases of ATCN, Minh and Khanh it is inappropriate to consider their applications for leave to appeal against sentence. However, it is necessary to consider Duong's application.

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