7 It is a matter of some significance that the evidence of Tam Bui was not challenged during cross-examination.
8 It was accepted by Mr Gucciardo that it will commonly be the case in a joint trial that a co-accused in his interview will have incriminated the accused in an account which may be largely accurate. The prosecution will lead a body of evidence which is thus confirmatory of what the co-accused has alleged about the accused David Nguyen. As a general rule the inadmissible evidence contained in the co-accused's interview, supporting, and supported by the other evidence adduced by the prosecution, does not generally constitute a sufficient reason to grant a separate trial.
9 In his comprehensive and forceful submission, Mr Gucciardo contended that the present circumstances were exceptional as the case against David Nguyen was weak so that the inadmissible material could potentially enhance a poor prosecution case. It was submitted that the narrative given by the co-accused in their interviews placed the accused at the crime scene and as playing a central role in the commission of the crime. It was submitted that though the prosecution would allege that the interviews of Hung Van and David Nguyen were "peppered with lies and the two accounts are clearly inconsistent as between themselves" they still provide a narrative which enables the prosecution's evidence to be pieced together.
10 The answers of Hung Van and Johnny Nguyen, it was said, go to the fundamental issue of the role played by David Nguyen in the killing of James Huynh. It was said that the prosecution would be entitled to encourage the jury to make findings about the role and complicity of Hung Van and Johnny Nguyen arising from their flawed and dishonest narratives which have, at their core, that David Nguyen was the sole killer. Relying upon Webb & Hay v R[7] such inadmissible evidence, it was asserted, should always be viewed as a factor militating against a joint trial. As in R v Alexander & McKenzie[8], the case against David Nguyen would be "completely swamped" by the interviews of Hung Van and Johnny Nguyen, the effect of their answers making it very difficult for a jury to ignore the "composite comparative picture of these accounts". Counsel also referred to R v Evans.[9]
11 It was submitted that without the narratives contained in the co-accuseds' interviews the prosecution would depend upon the drawing of an inference of guilt in circumstances where innocent hypotheses could not be excluded. It was submitted that there should be a real apprehension of a risk of injustice because of the intertwining co-incidents of narratives of the co-accused with the other evidence upon which the prosecution relies.
12 Reference was made to a line of authority that a joint trial should be refused where it would cause positive injustice to an accused.[10] It was submitted that there was present a reasonable hypothesis that the jury would be unlikely and unable to comply with a trial judge's judicial direction that it act only upon evidence admissible in the trial of the accused.
13 The unity of account was said to be most damaging in the context of a prosecution case which would otherwise by fragmented and weak. It was argued that those narratives must be viewed in the context of a trial where so many pieces of evidence were from witnesses whose testimony was unacceptable, unreliable or motivated by self-protection or some other interest.
14 As the accused had exercised his rights and refused to be interviewed and as there had been little challenge by counsel for the accused to evidence elicited by co-accused in support of their cases, it could not be said that the present trial involved a "cut throat" case in which each accused blamed the other. It was thus submitted one of the reasons for a joint trial was absent. Counsel relied upon R v Vollmer.[11]
15 In the absence of the co-accused giving evidence, it was submitted that the accused would be unable to put a motive to co-accused and flesh out the possibility of collusion between them. Defence counsel contrasted the present circumstances from those in R v Debs & Roberts[12] where the personalities and demeanour of each accused could be properly examined by the one jury.
16 The primary argument was that judicial directions will not "eradicate the mischief done by the admission of such evidence", citing R v Brown Smith & Woods[13]; that it would be "psychologically difficult" for the jury to fulfil the judicial instruction, citing R v Debs & Roberts[14]; and that the jury would have to perform "a remarkable mental feat". Counsel also relied upon R v Gibb & McKenzie. [15]
17 Counsel further submitted that the jury may conclude (without identifying any particular witness) that a crucial witness's evidence was reliable because he was corroborated by the content of a co-accused's interview and that it would be impossible for the jury to approach that witness's evidence unaffected by the view which it had formed as a result of a consideration of that evidence in the case in which it was corroborated.
18 In reply it was submitted on the prosecution's behalf that the initial application for separate trials rested upon the prejudicial portions of the co-accuseds' interviews which might impermissibly have corroborated the evidence of the witness An Tran as to the alleged admission made by David Nguyen. The application was then based on the misconception[16] that the trial judge had no discretion to exclude prejudicial portions of the record of interview of a co-accused. Consequent upon a ruling that such a power existed,[17] a number of questions and answers from the co-accuseds' interviews were excluded either on the application of David Nguyen or by agreement. Thus the impermissible prejudice the subject of the initial application has now substantially been removed.
19 Senior Counsel for the prosecution submitted that the case against the accused should not be characterised as a weak or fragmented one but as a strong circumstantial case. It was submitted that there had been no real defence advanced on behalf of the accused, the case being conducted on the basis that the prosecution was being put to its proof.
20 Senior counsel for the prosecution drew attention to the following features of the circumstantial evidence. The accused had a close relationship with Johnny Nguyen and he was good friends with the principals in the first degree Cuong Lam and Hung Van.[18] On 7 July 2002 Johnny Nguyen and David Nguyen were together at a restaurant in Footscray and the evidence was unchallenged that they left the restaurant together.[19] David and Johnny Nguyen went together to the nightclub in Johnny Nguyen's red Toyota arriving at the nightclub between 1.00 a.m. and 1.30 a.m. and they were inside the nightclub together.[20] It was said that David Nguyen had made no attempt to establish that he was elsewhere but in Johnny Nguyen's company after Johnny Nguyen left the Commercial Lounge. Johnny Nguyen's red Toyota was observed in Daly Street. The witness Thien Hoang identified the accused David Nguyen as the person who removed a sword from the bushes outside Legends Pool Parlour and got into the red Toyota. There was circumstantial evidence that that car immediately drove to the scene of the crime and that persons were seen to alight and the deceased James Huynh who was lying on the nature strip was attacked. The jury may infer that a person that alighted and attacked the deceased was the accused. The car departed the scene and a short time later returned and the occupants alighted and there was a further attack upon the deceased. The jury should infer that one of the occupants was the accused. Shortly thereafter the accused David Nguyen arrived at the flat of Hung Nguyen in Footscray in the company of the accused Johnny Nguyen and Hung Van, the accused at that time having a considerable amount of fresh blood on his clothing. Counsel for the accused challenged the suggestion that the accused had all arrived at the flat together. Hung Nguyen did not see the accused's motor vehicle in the vicinity of the flats when he arrived home. He gave evidence that the accused Hung Van, Johnny Nguyen and Tuan Tran came into the flat together. An Tran testified as to the admissions which the accused made that he had cut the deceased and that he would probably not survive. It would be inevitable that the jury conclude that the accused all arrived at the flat pursuant to some understanding that they go to those premises from the crime scene. Based upon these submissions and in the context of there being no defence advanced and no challenge to much of the circumstantial evidence, it was submitted that the prosecution case should be viewed as a strong one.
21 The senior prosecutor submitted that there was a cogent and compelling case against David Nguyen. The prosecution submitted that one of the principal questions in the accused's trial was the identity of the persons who alighted from Johnny Nguyen's car. He said counsel for Hung Van had cross-examined witnesses on the basis that the accused Hung Tu Van was one of the occupants of the car who had alighted and gone to the deceased's body. Counsel for Hung Van had put to a number of witnesses that Hung Van had attempted to restrain the person who was striking the deceased with a sword.
22 The prosecutor submitted that the circumstantial evidence admissible against the accused did not make the inference of guilt a difficult one to draw. He submitted that the jury had already been given numerous instructions as to the limited admissibility of evidence led of out of court statements made by various accused. It was submitted that in the context of a trial where there was inadmissible evidence in the case of a number of accused and where the jury will be repeatedly told in each of the accused's cases what the ambit of that admissible evidence is, there was no significant risk that the jury would ignore or be unable to give effect to the directions which it received and confine its assessment of the prosecution case to evidence admissible against that accused.
23 The discretion to grant separate trials is an unfettered one which must be responsive to the circumstances at the time it is made, conscious that the overriding requirement is to avoid a miscarriage of justice. The prosecution case is that the accused was in a common enterprise with Cuong Lam and Hung Van and came to their aid. Well recognised factors must therefore be taken into account which favour a joint trial,[21] it generally being in the interests of the administration of justice. It is not in the interests of justice that there should be inconsistent verdicts. A separate trial would be lengthy as much of the events in Daly Street, Chapel Street and at the scene of the crime would have to be revisited. Finality of this prosecution and the convenience of a large number of witnesses must be considered. The jury should have any accounts before them of persons said to be jointly involved in the commission of the crime. These factors should not be given undue weight.
24 It was acknowledged during the course of argument that it is a common feature of joint trials that the prosecution leads evidence against an accused which tends to establish matters that the co-accused has alleged against the accused in an out-of-court statement. This does not necessitate the granting of a separate trial. I consider that the impact of the co-accused's narratives upon the jury has been exaggerated. While much of the evidence to which counsel referred draws strength from or gives strength to other circumstantial evidence in the case against the accused, it will not be a difficult task for the jury to maintain an understanding of the ambit of the admissible evidence against the accused. The majority of the trial evidence relates to the conduct of the other principals in the first degree who acted in concert with the accused and the conduct of the secondary participants. I am not persuaded that there is any greater risk in the present case, than in other joint trials in which a co-accused in out of court statements incriminates an accused, that such inadmissible evidence will be utilised unconsciously by the jury as confirmatory of other evidence in the prosecution case. The reasoning of the Court of Appeal in Torney[22] in a case where the inadmissible evidence of the co-accuseds' interview filled gaps in the prosecution case and enhanced the credibility of three prosecution witnesses who required corroboration, is apposite.
25 I have every confidence that the jury is capable of appreciating that the accounts of the co-accused cannot be considered when evaluating the evidence in the accused's trial. It is not a complex task in the present case to assess the pieces of circumstantial evidence admissible against the accused divorced from the different accounts given by co-accused. The nature and extent of the admissible evidence in the accused's case will be emphasised in the closing addresses and my charge. The jury will have a clear understanding of the admissible evidence which is available to them to resolve factual questions in the accused's case. Where the same question of fact arises in the accused and a co-accused's case, the differences, if any, in the evidence in each case will be highlighted.
26 The identification evidence of Thien Hoang calls for a careful direction to the jury. Neither he or any other witness who implicates the accused is bolstered by the content of a co-accused's interview.[23] The interview of Hung Van provides no support for this testimony whilst Johnny Nguyen's interview is at odds with it. The reliability of that identification evidence must depend upon the jury assessment of that witness. The jury will be charged to consider this evidence in accordance with a full direction and warning about identification evidence.
27 The observations of the witness John Lee whose evidence could be viewed as confirmatory of Hung Van's claim that he sought to restrain the attacker, must be balanced against numerous other eye witnesses who made no such observation. More particularly the evidence of Lee does not advance the prosecution case on the issue of the identity of the attacker.
28 Although there is a great deal of evidence concerning the movements of the red Toyota, the admissible evidence against the accused which relates to the identity of the occupants of the red Toyota is of very narrow compass. While it can be said that much of the circumstantial evidence led on numerous issues was fragmentary and some of it inconsistent, the circumstantial and direct evidence bearing upon the accused's identity as the occupant of the red Toyota cannot be so described. That evidence being easily identifiable and of limited scope, I do not think the suggested danger exists that the narrative given by Hung Van or Johnny Nguyen will "swamp" the admissible evidence against the accused or call for the jury to perform some remarkable mental feat in putting to one side the narrative contained in the allegations of the co-accused.
29 I am not satisfied that there is a risk of positive injustice in the accused David Nguyen 's continuation in this trial. The application for a separate trial is refused.