R v Ngo [2002] VSCA 188

[2002] VSCA 188

Court of Appeal (Vic)|2002-11-01|Before: WINNEKE, P., CHERNOV, J.A. and O'BRYAN, A.J.A.

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

2002-11-01

Before

WINNEKE, P., CHERNOV, J.A. and O'BRYAN, A.J.A.

Source

Original judgment source is linked above.

Judgment (81 paragraphs)

[1]

[ 2002] VSCA 188

[2]

Criminal law - Armed robbery - Whether judge erring in directions to jury on corroboration, aiding and abetting and lies to which no exception taken at trial - Whether error in permitting prosecutor to cross-examine principal Crown witness - Whether jury should have been discharged after hearing excluded evidence - Sentence not manifestly excessive or disparate from that imposed on co-accused.

[3]

After a trial in the County Court at Melbourne in September of 2000, the applicant Ngo (whom I will refer to as "the applicant") was found guilty of one count of armed robbery committed upon people named Nguyen on 8 October 1998. The armed robbery occurred at the home of the Nguyens at 9 Saxony Court, Mulgrave, in the late hours of the evening. At the relevant time the applicant was in company with three other male offenders (one unknown and the other two I shall call "Pham" and "Luan") and two females. Only Pham has since been identified. He pleaded guilty to the armed robbery. He was, at the date of the offence, aged 17 years with no prior convictions. He pleaded guilty at the earliest opportunity and was sentenced on 10 February 2000 and released on a good behaviour bond. The applicant, who was aged 30 at the time of the offending, was, as I have said, convicted after trial in September 2000 and was sentenced, on 30 October 2000, to a term of imprisonment of five years with a non-parole period of three years. Prior to sentence he admitted a number of previous convictions, mainly relating to offences of dishonesty, from two previous court appearances.

[11]

The applicant's young accomplice, Pham, was a principal witness for the Crown. He had been identified and apprehended by police within days of the alleged robbery and had participated in a record of interview on 14 October 1998. Thereafter he had made a written statement to police in New South Wales, where he lived, on 22 August 2000. Pham gave evidence at the trial through an interpreter. He said that at or about the time when the robbery occurred he had been staying with friends at a house in Thames Avenue in Springvale, where five or six other people of Vietnamese origin were living. He said that the applicant visited the house from time to time and that, shortly before this robbery occurred, the applicant had told him that someone owed his mother $2,000 and that he "wanted to go there to recover the money". The applicant had asked him to go with him to recover the money and that he, Pham, had agreed. He said that the applicant had driven him and four other people to the Nguyen' premises in the applicant's car. He said that he was ordered to hide behind a car in the driveway whilst the applicant gained entry to the house and that when the door was opened he was to gain entry himself. He said that when the door was opened he left his "hiding place" and entered the house and went into the kitchen where the applicant was present with Mr Nguyen. The applicant told him to go into the bedroom and bring Mrs Nguyen into the kitchen and this he did with one of the girls. He said that, whilst in the kitchen, he had picked up a "barbecue fork" for "self-defence". He said that he could not hear clearly what was being said in the kitchen, and that he did not know "whether anybody was getting angry". He said that he saw "another guy" taking a stereo system from the loungeroom and that he went to "give him a hand". The prosecutor again asked the witness why he had "picked up the barbecue fork" and the witness repeated that he had done so for "self-defence". The witness further said that he could not hear clearly what the applicant was saying to Mrs Nguyen in the kitchen except that it was "something about money".

[28]

It follows from what I have said that, in my view, the procedure adopted by her Honour was unexceptionable, and, indeed, engaged in without any significant objection from the applicant's trial counsel. The question whether the prosecutor should be permitted to cross-examine his own witness is one which is peculiarly within the province of the trial judge who is in a pre-eminent position to observe and gauge the demeanour of the witness and, thus, to determine whether the requested leave should be given or withheld. The judge's discretion to grant such leave will not, except in very exceptional circumstances, be interfered with on appeal[6]. In my opinion, there was nothing in the circumstances of this case which would suggest that her Honour's discretion had been improperly exercised. In particular, I cannot agree with Mr Dickinson's contention that her Honour had impermissibly allowed the prosecutor to "bolster the credit" of his own witness. On the contrary, the procedure which her Honour permitted was to enable the prosecutor to impeach the credit of his own witness by asking questions which were directed to showing that the evidence which he had already given was untrue in material respects. The fact that the witness, when so cross- examined, admitted the truth of his previous statement, did not mean that his credit was bolstered - impermissibly or otherwise. What it meant was that there were two versions given by the witness on material events, a matter exposed by trial counsel for the applicant in his final address. Indeed, ground 6 of the appeal grounds, which is allied to ground 1, complains that her Honour, in the course of her directions, improperly told the jury that Pham was a witness "from whom the truth had to be extracted". However, in using these words, her Honour was describing the prosecutor's attitude to the witness; she was not intending to tell the jury that they should regard the witness' version, given when cross-examined, as the truth. She said:

[46]

It is conceded on the applicant's behalf that her Honour gave the jury the standard "accomplice direction" and warning. However, Mr Dickinson contended - although not strongly - that she erred in telling the jury what evidence was capable of amounting to corroboration of the accomplice's evidence. Many of them were admissions made by the applicant in his own evidence; namely that he drove the other participants to the victims' house in his car; that he left the premises in his car carrying with him the other members of the "raiding party" and the stolen goods; that one of the party was wielding a knife in the house; and the accomplice was wielding the barbecue fork; that threats were uttered to the victims, and the female victim was assaulted by other members of the party. Her Honour also directed the jury that there was other evidence from the victims which also established many of these facts. It was contended by Mr Dickinson that this material was not evidence, independent of the person whose evidence was required to be corroborated, which implicated the applicant in the crime. His submission was that it was material which only confirmed that a crime had been committed; but not that it had been committed by the applicant. These submissions, in my opinion, betray a misunderstanding often entertained about evidence which is capable of amounting to corroboration. The locus classicus of what amounts to corroborative material is the decision in R v. Baskerville[14]. The decision in that case is not authority for the proposition that potentially corroborative material must itself prove that the crime was committed and that the accused was involved in its commission. It seems to me that Mr Dickinson's submissions were almost going that far, because the view for which he contended was that the evidentiary material which her Honour left to the jury was "intractably neutral" to the issue whether the applicant was involved in the commission of the crime. As Brooking, J.A. pointed out R v. Rayner[15]: