R v Lam

"In determining the practical content of the requirement that a criminal trial be fair, regard must be had 'to the interests of the Crown acting on behalf of the community as well as to the interests of the accused', per Deane J in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 at 206 quoting Gibbs ACJ and Mason J in Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 101........." [7]

4 The policy considerations which favour a joint trial are discussed at length in R v Demirok and Jones & Waghorn v R.[8] The factors present in those cases which led to the conclusion that there had been a miscarriage of justice are relied upon by both Thanh Nguyen and Hong Bui. The common factor present in both of these cases was the potential prejudice flowing from inadmissible evidence which may have been improperly used by the jury as confirming the evidence of the principal Crown witness implicating the applicant. In Jones & Waghorn each member of the Court considered that co-accused's admissions against interest confirmatory of the principal Crown witness' account implicating the applicant, must have weighed heavily against the applicant irrespective of the number of judicial warnings given to the jury. Crockett J expressed the view that if the only factors in favour of a separate trial were those that were present in Demirok, he would not have been persuaded that the joint trial had led to a miscarriage. Crockett J regarded the inadmissible evidence of the co-accused's out of Court statements referring to the applicant as a professional criminal who was disposed to violence and murder as conclusive that the joint trial had been unfair.

5 Where there is substantial prejudice to an accused arising from a joint trial as a consequence of the introduction of evidence admissible against a co-accused but inadmissible against the accused, an assessment is called for as to whether such prejudice is "really amenable to nullification by judicial direction".[9] In Demirok it was said that where full directions were given explaining to the jury the use that could be made of the statements of a co-accused, such directions would normally prevent doubts arising that a miscarriage of justice might have occurred.[10] Such directions had not been given by the trial judge in Jones & Waghorn.[11] Crockett J, in Jones & Waghorn, referred to R v Ditroia & Tucci[12] and observed that even where the effectiveness of judicial warnings would be attended by real doubts it does not follow that an application for severance will be successful.[13]

6 In R v Iaria and Panozzo[14] Nettle J discussed some of the circumstances in which judicial direction to consider each accused's case separately may be ineffective. His Honour referred to one such circumstance in the following terms:

".....where evidence irrelevant to any issue between the Crown and the accused is admissible against a co-accused, and as against the co-accused serves to corroborate or reinforce the evidence of an eyewitness against the co-accused, and as a result the jury would be likely to believe the eyewitness, not only in what he or she may say against the co-accused, but also in what he or she may say as against the accused, at least where the Crown places heavy reliance upon that witness to implicate the accused and the evidence is open to serious challenge....."[15]

Application of Hong Bui

7 The application of Hong Bui rests upon the contention that the Crown case against him is weak or non-existent and will, by impermissible means, be made immeasurably stronger by reason of the evidence that will be introduced against his co-accused which is inadmissible against him. The Crown case rests upon evidence that the accused was involved in a scuffle inside the Salt Nightclub and sustained a black eye; that he was subsequently present when there was a further scuffle outside the Salt Nightclub at a time when the deceased James Huynh received a wound to the chest; that the accused in the company of a number of the co-accused and other persons chased the deceased and others in their group for some distance; that the accused then pursued the deceased's group in his motor vehicle and that a number of persons including one of the other co-accused were observed in the accused's vehicle, which the accused drove to the intersection of Chapel Street and Alexandra Avenue where his vehicle was observed in the vicinity of the area where the deceased was killed. The deceased's blood was located on the accused's shirt, trousers and shoes. The Crown alleges that the blood on the shoes included spattered blood stains consistent with the accused having been very close to the deceased when he received serious injuries. The Crown relies upon a number of the accused's answers in his Record of Interview as establishing some of the matters to which I have referred and alleges that the accused made a number of false denials in the course of that interview.

8 Particular reliance was placed upon the principles set out by Hunt J in R v Middis[16] referred to by Dowd J in Piller, Kramer & Edwards[17] to the following effect:

"(1) ....Where the evidence against an applicant for separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and

(2) Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and

(3) Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial....."

These principles were subsequently referred to with approval in R v Patsalis (No.1)[18] in which a further passage from Middis was referred to in which Hunt J stated:

".......it must be shown by an applicant for a separate trial that the particular prejudice upon which reliance is placed by him would - if it arises - result in positive injustice to him in a joint trial......."[19]

9 Mr Saunders who appears on behalf of the accused Hong Bui submitted that most of the evidence upon which the Crown relies to establish each of these matters is inconclusive or unsatisfactory. He offered substantial criticism of some of the evidence upon which the Crown relies. He submitted that there was no evidence as to who it was that assaulted the accused inside the Salt Nightclub. He relied on the fact that it was not alleged that the accused performed any act of aggression or took any active part in the altercation between the deceased and the co-accused inside the Salt Nightclub. He submitted that the evidence was unsatisfactory as to the presence of the accused outside the Salt Nightclub. Mr Saunders submitted that there was no evidence that the accused saw any of his co-accused or other persons with swords or knives outside the Salt Nightclub or as the accused joined in the pursuit of the deceased's group. He disputed the Crown's contention that the evidence substantiated that the accused, by getting into his motor vehicle, pursued the deceased's group. While it does not appear to be in dispute that there were persons present in the accused's motor vehicle, the evidence upon which the Crown relies that the accused Cuong Lam was present in the accused's vehicle wearing white gloves was highly doubtful. It was submitted that whilst the accused admitted that he drove his vehicle to the intersection of Chapel Street and Alexandra Avenue, the evidence was unsatisfactory as to when he did that or what observations he could have made. It was submitted that he could have received the blood on his shirt, trousers and shoes whilst present in the nightclub when the deceased James Huynh was injured.

10 The Crown relies upon a general body of circumstantial evidence of events which occurred within the nightclub, in front of the nightclub, in the course of the chase and at the intersection of Alexandra Avenue and Chapel Street at a time when it contends that Hong Bui and other accused were present, and which it says will enable the jury to draw inferences about each accused's knowledge of what was occurring and their intentions. There is presently great difficulty in assessing the extent to which such a body of evidence will be probative of the case which the Crown seeks to mount against Hong Bui and other accused. Legal Aid funding has not permitted counsel to undertake a comprehensive examination of the evidence. This was reflected in Mr Saunders' difficulty in specifically identifying the evidence said to be inadmissible against Hong Bui.

11 At present Mr Saunders could do no more than assert that the evidence which the Crown relies upon against Hong Bui is significantly different from the evidence in relation to the other accused and that the case against other accused is stronger. This submission was not developed during the course of oral argument. There is no sound basis upon which I could presently reach such a conclusion.

Application of Thanh Nguyen

12 The accused Thanh Nha Nguyen also seeks a separate trial from his co-accused. The Crown case rests upon evidence that Thanh Nguyen together with his co-accused Linh Van Nguyen left a party in Footscray in a red Toyota, the accused stating that he was going to the Salt Nightclub. The Crown relies upon circumstantial evidence that Thanh Nguyen was present at the night club and was involved in the pursuit and killing of the deceased. There is a body of circumstantial evidence as to the sighting of the red Toyota in the vicinity of the intersection of Alexandra Avenue and Chapel Street at the time of James Huynh's death. After the death of the deceased the accused arrived at a flat occupied by Hung Tien Nguyen and An Khanh Tran in the company of other accused who were allegedly involved in the incident both inside and outside the night club, in chasing the deceased and in the events at that intersection of Chapel Street and Alexandra Avenue. At the flat it is alleged that the accused made admissions to the occupants of the flat about his involvement in the death of the deceased. He had blood on his clothing when he arrived at the flat.

13 As in the case of Hong Bui, and for similar reasons, the nature and extent of the circumstantial evidence upon which the Crown relies and from which it proposes to invite the jury to conclude that Thanh Nguyen was present at material times was not comprehensively explored on this application. Its ambit and probative value is difficult to ascertain. In this sense the accused Thanh Nguyen's position is similar to that of the accused Hong Bui.

14 In a most helpful outline of submission filed by Dr Lyon on behalf of the accused Thanh Nguyen and in the oral submission made by Mr Mandie on his behalf, the principal basis upon which it was contended that he should be granted a separate trial rested upon the inadmissible and prejudicial evidence contained within co-accused's Records of Interview. It was submitted that the prejudice flowing from this material was incapable of redress by the most careful judicial direction.

15 Two of the co-accused, Hung Van and Linh Van Nguyen, allege in their Records of Interview that they observed the accused Thanh Nguyen stabbing the deceased James Huynh. They allege that Hung Van attempted to stop the accused Thanh Nguyen from stabbing the deceased with the sword. It was submitted that the multiple accounts of such a version would tend to impermissibly corroborate each other thereby strengthening the Crown case. It was further submitted that there would be inadmissible and prejudicial evidence in the Records of Interview of the accused Cuong Lam and Linh Van Nguyen that the accused, upon returning to the house of Hung Nguyen made admissions that he was responsible for killing the deceased James Huynh. This inadmissible evidence would impermissibly corroborate the evidence of the Crown witnesses Hung Nguyen and An Tran that they overhead the accused make such submissions. It was submitted that the Records of Interview of these co-accused would not only enhance the credibility of those Crown witnesses, but that they would corroborate these witnesses' evidence as to what was said by the accused and his demeanour at the time it was said.

16 It was submitted on behalf of the accused that the credit of both Hung Nguyen and An Tran would be under serious challenge as they had been interviewed by the police on suspicion of having assisted the accused Cuong Lam to escape the scene of these offences. As I have observed, the accused Cuong Lam is one of those co-accused who makes adverse allegations against the accused Thanh Nguyen. It was further submitted that it could be anticipated that there would be a significant conflict between the defences of the accused Thanh Nguyen and the defences of Hung Van and Lin Van Nguyen both of whom allege that Hung Van attempted to stop Thanh Nguyen stabbing the deceased. It was submitted that the evidence of the Crown witnesses that the accused had taken responsibility for killing the deceased might be used to impermissibly corroborate the claims of his co-accused that he had stabbed James Huynh.

17 It was submitted on Thanh Nguyen's behalf that there was a high degree of "cross fertilisation" of the alleged admission by the accused which in turn was confirmatory of the inadmissible versions of the co-accused as to the accused's conduct at the scene. No suggestion was made that such difficulties as the accused may face as a consequence of the joint trial would limit or unfairly inhibit the forensic choices open to the accused.

18 It was further submitted on behalf of the accused that he had made a "no comment" Record of Interview whilst co-accused had provided answers in their Records of Interview. This, it was said, might lead the jury to draw an adverse inference as a consequence of the accused exercising his right to silence. This factor would not alone justify the granting of a separate trial.

19 Dr Lyon in his outline of submission contended that the principle expressed by the majority of the High Court in R v Darby[20] in which they approved the Canadian decision of Guimond v R[21] that separate trials should be ordered where the evidence admissible against one conspirator is significantly different from the evidence admissible against a co-conspirator, should apply to the present trial. I assume, without deciding, that the evidence against other accused is stronger as well as different from that against Thanh Nguyen.

20 Dr Lyon submitted that the principle explained in Darby is not unique to conspiracy counts and has been applied to substantive charges. He referred to R v Farrell & Cotton[22] and Jones & Waghorn v R. Smith J in Jones & Waghorn[23] referred to a number of decisions in which the principle had been applied and considered Waghorn's situation to be governed by the principle. His Honour considered that the fact that the case was substantially stronger against the co-accused was a further important consideration.[24]

21 In Victoria the principle as stated in Darby and Guimond is not viewed as changing the common law principles governing joint trials. The Victorian Full Court in Torney v R [25] considered that the principle therein stated was confined to cases of conspiracy and where there was a substantial difference between the admissible evidence against each co-accused.[26] In R v Iaria and Panozzo[27] Nettle J rejected the submission that there was a broad principle that whenever evidence against one accused is considerably stronger than that against another, it should at least be likely to follow that an order for separate trials will be made.[28] His Honour observed:

"The proposition appears to be based upon what was said by the High Court in R v Darby concerning observations made by the Supreme Court of Canada in Guimond v R and also upon some observations of Hunt J of the New South Wales Supreme Court in R v Farrell & Cotton adopting what had been said earlier by the New South Wales Court of Criminal Appeal in R v Gulder. Rightly, as Mr Lewis pointed out, in this State the question is for the time being governed by what was said by the Court of Criminal Appeal in R v Torney. That is to say that the High Court's observations as to the desirability, if not necessity, to order trials wherever the case against one accused is far stronger than against another, should be taken as confined to conspiracy cases. But I add, with respect, that as a matter of principle it seems to me that Torney is clearly right. The observations in Darby were expressly predicated upon the basis of the great difficulty that is involved in a conspiracy case, as opposed to others, that a judge must direct a jury not only that they must consider the case against each co-accused separately but also that they must convict them both or acquit them both. Plainly, no such difficulty arises in the case of this kind."[29]

22 I would, with respect, adopt the view expressed by Nettle J. The need for the latter direction to which his Honour refers in the penultimate sentence arises where there is no material distinction in the evidence admissible against each of the co-conspirators who are being jointly tried.[30]

23 The Crown submitted that the factors which were present in Waghorn's and Demirok's case and which proved critical to the conclusion that there had been a miscarriage of justice were absent in the present case. Here the accused was charged jointly with his co-accused in the murder of the deceased James Huynh. In Demirok the co-accused was not jointly charged with the applicant on the count of murder. It was argued by Mr McArdle that in contrast to Waghorn's case none of the co-accused in their Records of Interview have said anything which bears upon the accused's character. The Crown further sought to distinguish Waghorn on the basis that the principal Crown witness had a "very bad background of her own" and the potential for the inadmissible evidence of the co-accused to bolster her credibility was high. Mr McArdle submitted that the Crown witnesses in the present case did not fall into this category.

24 It was acknowledged by the learned prosecutor that focus upon the factors present in previous cases in which a miscarriage of justice has been found to have occurred as a consequence of a joint trial should not obscure the overriding principle of fairness to the accused. The factors which were found to be present in those previous cases, though of assistance in identifying factors bearing upon the exercise of the discretion, ought not to be reduced to a formula applied to determine whether separate trials should be granted.

Conclusion

25 The impact which inadmissible evidence may have upon a jury's deliberations will depend upon a large number of factors which will vary from one case to the next, as will the capacity of any judicial direction to nullify such an impermissible effect. The difficulty facing a trial judge is to identify and assess the weight to be given to such factors.

26 The trial judge is unable to foresee the course that will be taken at trial. This is particularly so in the present trial. The accused on the joint presentment were committed for trial as a consequence of two separate committal proceedings. There is uncertainty as to what evidence the Crown will be able to elicit from a number of important witnesses. Some accused attribute responsibility to other accused for this crime. The defences which the accused are likely to adopt and the course which they may take at the trial is uncertain. The Crown relies upon common purposes of all the accused. Evidence which bears upon the conduct of an accused prior to and subsequent to the acts causing the deceased's death from which the jury will be invited to draw inferences as to that accused's knowledge and intent may, depending on the nature of the evidence, also be relevant and admissible against other accused.

27 Both the accused Hong Bui and Thanh Nguyen rely upon the fact that they are not charged with the murders of Viet Huynh or Nam Huynh nor is it alleged that they took any part in any of the acts leading to their death. No amplification was made of the basis upon which these circumstances would be productive of any significant or incurable prejudice which would warrant an order for a separate trial.

28 Counsel for both Hong Bui and Thanh Nguyen submitted that they had not been involved in any act of aggression or had taken any active part in the altercation which occurred inside or immediately outside the Salt Nightclub in the early hours of the morning of 8 July 2002. Assuming that to be so, the Crown relies upon the events inside and outside the Salt Nightclub as providing a motive for the subsequent conduct, not only of those who were the subject of aggression but their friends, including the accused, who chased and attacked the deceased. An assessment cannot yet be made with any degree of precision as to whether such evidence will advance the Crown's case against the accused Thanh Nguyen or Hong Bui. Nor can if it presently be said with any confidence that there will be a substantial body of evidence led by the Crown concerning the events inside or outside the Salt Nightclub, involving the chase of the deceased or the events at the intersection of Chapel Street and Alexandra Avenue which will be irrelevant or inadmissible in the cases against these accused.

Hong Bui

29 The claim by Hong Bui that there is a marked disparity in strength of case between himself and any co-accused has not been made out. Much remains unclarified about the extent of the circumstantial evidence concerning him or the other accused. Counsel for Hong Bui was faced with substantial difficulties in identifying a body of evidence inadmissible against him which is of such a prejudicial nature that would warrant an order for separate trials. The factors which existed in Jones & Waghorn and Demirok are not present in this case. There is no suggestion that inadmissible evidence is likely to strengthen the credibility of any critical witness against the accused thereby turning a weak case into a strong one. That is not to say that other forms of prejudice may not arise from inadmissible evidence which may provide a proper foundation for the granting of separate trials. Those circumstances cannot presently be established. I am not satisfied that an order for separate trials is necessary to afford the accused a fair trial and the application for separate trials must be refused.

Thanh Nguyen

30 In the context of this large trial there is no clear picture as to the extent of the circumstantial evidence which may bear upon Thanh Nguyen's proximity and role at the time the injuries causing death were inflicted upon James Huynh. The possible effect of inadmissible prejudicial evidence to be led against co-accused and the degree of importance of the evidence of the two Crown witnesses who allege that he made admissions concerning his involvement with the deceased cannot presently be determined. What circumstantial evidence will emerge as to how Thanh Nguyen came to be at the flat, with other accused and with blood on his clothes is presently unknown.

31 Whether Thanh Nguyen's trial will be unfair if it is conducted in conjunction with his co-accused will depend upon the course of the trial. But the interests of justice will not be served were such an application to be dealt with on the basis of speculation. It is for the accused to overcome the presumption in favour of a joint trial. I am presently unpersuaded that the appropriate judicial warnings which will be called for during the trial will be insufficient to ensure that there is no injustice suffered by the accused through the risk of the jury's impermissible use of such evidence. It has not yet been demonstrated that the trial of the accused will be an unfair trial if he is presented with his co-accused.

32 The right of a trial judge to accede to such an application at any stage of the trial is well recognised. The accused may, during the course of or at the conclusion of the trial and before the jury retires to consider its verdict, renew his application in the event that the alleged admissions assume the importance anticipated and it is considered that a miscarriage of justice would be likely to occur as a consequence of the joint trial.

[1] [1994] HCA 30; (1994) 181 CLR 41 per Toohey J at 89 and per Mason CJ and McHugh J at 56.

[2] [1976] VicRp 19; [1976] VR 244 at 254.

[3] R v Demirok, supra Footnote 2 at 254; R v Gibb & McKenzie [1983] VicRp 78; [1983] 2 VR 155; Jones & Waghorn v R (1991) 55 A Crim R 159; Heaney, Gillin, Randall & Randall v R [1992] VicRp 85; [1992] 2 VR 531; Webb & Hay v R, supra Footnote 1 at 89.

[4] R v Gibb and McKenzie, supra Footnote 2 at 163; Webb & Hay v R, supra Footnote 3.

[5] [1983] VicRp 78; [1983] 2 VR 155 at 163.

[6] [2001] NSWCCA 476.

[7] Ibid at [397].

[8] Supra Footnote 3 per Smith J at 176.

[9] Supra Footnote 3 per Crockett J at 164.

[10] R v Demirok, supra Footnote 2 at 255.

[11] Supra Footnote 3 per Smith J at 186.

[12] [1981] VicRp 28; [1981] VR 247.

[13] Supra Footnote 3 per Crockett J at 164.

[14] [2004] VSC 110.

[15] Ibid at [6].

[16] Unreported, Supreme Court New South Wales 27 March 1991.

[17] (1995) 86 A Crim R 249 at 257.

[18] [1999] NSWSC 649; (1999) 107 A Crim R 432 at 434.

[19] R v Middis, supra Footnote 14 at 5.

[20] [1982] HCA 32; (1982) 148 CLR 668.

[21] (1979) 44 CCC (2d) 481.

[22] (1990) 48 A Crim R 311 at 312.

[23] Supra Footnote 3 at 176, and 180-181.

[24] Supra Footnote 3 at 180-181.

[25] (1983) 8 A Crim R 437 at 449.

[26] Ibid per Crockett J at 441 and per O'Bryan J at 449.

[27] Supra Footnote 13.

[28] Supra Footnote 13 at [26].

[29] Supra Footnote 13 at [27].

[30] Supra Footnote 17 at 678.