R v Lu; R v Pham

16 In Regina v Pham [2004] NSWCCA 190 Adams J provides in the leading judgment some explanation of the principles enunciated in Middis: "39. Two phrases in this summary need some explanation. In ordinary speech, "immeasurably" usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant "significant, though incommensurable". The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to "positive injustice". Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that he inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence. 40. I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant's case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was such a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender's case is material. Indeed, the opposite would seem to be the case since, if the co-accused's case was weak, or weaker than the applicant's, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case."

17 It follows that an applicant for a separate trial must demonstrate that there is a real risk that a positive injustice could be caused to him in a joint trial. Mr Button SC for Lu submits that it is the combined effect of Pham's ERISP and the conversation with his brother which demonstrate that there is a real risk that a positive injustice would be caused to Lu in a joint trial. Those parts of Pham's ERISP which conflict with Lu's account of what occurred and the conversation with his brother go to the central question in the trial, which will be: was there a joint criminal enterprise and, if so, what was it? 18 Referring to the principles in Middis Mr Button argues that the case against Pham is much stronger and different from the case against Lu principally because of the evidence of the deceased's brother and mother that they saw Pham return to the vehicle and get something, from which it can be inferred that he was in possession of the knife. Moreover, Pham's account of how the deceased came to be stabbed by the knife strains credulity. The material in Pham's ERISP and the statement of his brother are highly prejudicial to Lu, Mr Button submits, although not admissible against him. There is the real risk that the weaker prosecution case against Lu, Mr Button contends, will be made immeasurably stronger by that prejudicial material as the jury may be inclined to use it even subconsciously to undermine the position of Lu and to ultimately reject it.

19 I do not consider the evidence against Lu is significantly weaker than and different from that admissible against Pham. It is common ground that the evidence of Sophie and Dannis Rousianos is admissible against each of the accused. Whilst it is true that each of them gives an account of Pham returning to the vehicle and Dannis describes seeing Pham carry an object with a black handle, each witness deposes to both Lu and Pham going over the fence. Dannis recounts Lu punching the deceased to the face with Pham standing next to the deceased. Moreover, according to Dannis, Lu was seen driving his vehicle alone a short time before he returned with Pham. An account is provided by both witnesses of the earlier incident, which includes Lu holding a machete.

20 Although the Crown case points firmly to Pham being the person who actually stabbed the deceased, the proposed evidence with equal firmness points to the attack upon the deceased being motivated by Lu's desire for revenge and to his actual participation in the attack. The Crown case, it seems to me, against each of the accused depends upon the acceptance of the evidence of Sophie and Dannis Rousianos.

21 The admissions made by Pham in this ERISP and the conversations recounted by Dinh-An Pham are not admissible against Lu. Pham's statements to police and his conversations with his brother are inconsistent with Lu's account that his disagreement with the deceased had been reconciled and the attack upon the deceased was a spontaneous attack by Pham in which he did not participate. This inadmissible material considered in combination adds little, in my view, to the inferences available from the admissible evidence of Sophie and Dannis Rousianos of the prior incident with a machete; the driving past by Lu alone in his car; his return accompanied by the co-accused and the attack that followed. Although there is some prejudice to Lu from the inadmissible material I am not persuaded that it is highly prejudicial. 22 It follows from what I have said that I do not consider that there is a real risk of a weaker Crown case being made stronger by reason of the prejudicial material. Irrespective of the relative strengths of the Crown cases against each of the accused, I do not consider that there is a significant risk that prejudicial evidence could be used adversely to the applicant: see Pham per Adams J at [40]. The jury would be given specific directions that Pham's ERISP and the conversations with his brother are admissible only against Pham and are not to be taken into account against Lu.

23 The application made by Pham for a separate trial is founded on what was said by Lu to police in his ERISP and the use that may be sought to be made by the co-accused of the evidence of Andrew Klintworth. Lu told police that when Pham got back into the vehicle he pulled the black handle out and said to him in Vietnamese, "I stabbed him." What was said by Lu in the ERISP is not admissible against Pham. The prejudice to Pham which arises from the inadmissible material is very high. It amounts to an explicit admission by Pham to Lu that he inflicted upon the deceased the wound which caused his death.

24 Although I have assessed the comparative strengths of the cases against each of the accused as about the same, there is a real risk that the Crown case against Pham will be made significantly stronger by reason of the inadmissible material. In this instance a clear and emphatic direction that the inadmissible material must be ignored may not be sufficient to avoid a miscarriage of justice.

25 The risk of a positive injustice to Pham by a joint trial is enhanced by the evidence of Andrew Klintworth. Klintworth told Detective Senior Constable Kneipp and Senior Constable Bullow on 3 October 2005 that Pham had tried to stab him in the heart with a knife. Notices had been served by the Crown and Lu of an intention to rely on that evidence to prove that Pham had a tendency to act in a particular way, namely, to possess a knife, retrieve it from a car, and to use a knife in a particular manner, namely, an action of stabbing to the heart.

26 Mr Klintworth during his evidence on a Basha inquiry this morning resiled from what he told the police officers in 2005 and told this Court it was not true. The Crown no longer seeks to call Mr Klintworth on the basis of tendency, but for a more limited purpose. 27 Mr Klintworth, however, is a witness of importance to Lu. The statement he gave to police in 2005 has the potential to assist Lu in his case that the death of the deceased was caused by Pham, an act in which Lu was not involved. When Klintworth is called by the Crown, Mr Button SC has informed me that he proposes to endeavour to get the statement in as a prior inconsistent statement.

28 Klintworth's statement to police in 2005 has a potential to strengthen the reliability of the inadmissible admissions in Lu's ERISP. The prejudice to Pham, already very high, would be enhanced. It could not be cured by a strong direction.

29 It seems to me that Pham has demonstrated that there is a real risk that the positive injustice would be caused to him in a joint trial. I order that Lu and Pham be tried separately.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.