R v Nguyen

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J Friday, 7 July 2000 70219/98 R v Hoang Minh NGUYEN JUDGMENT 1 HIS HONOUR: This is an application by Hoang Minh Nguyen to withdraw the plea of guilty entered by him on 18 October 1999 to the murder of Van Hung Tran at Silverwater Correctional Centre on 28 April 1998. 2 The principles relevant to such applications have recently been summarised by Simpson J in R v Marchando [2000] NSWCCA 8 at [4] as follows: The relevant legal principles are neither complicated nor controversial. The court has a discretion to permit a change of plea at any time prior to sentence: R v Griffiths (1977) l37 CLR 293 at 335; Chow v DPP (1992) 28 NSWLR 593 at 599. Leave, while a discretionary matter, should readily be granted where the plea has been entered pursuant to some material mistake, or in circumstances where its integrity is otherwise questionable; R v Sagiv (1986) 22 A Crim R 73. Circumstances that warrant the exercise of discretion in favour of permitting the change of plea include lack of appreciation on the part of the defendant of the nature of the charge; absence of evidence sufficient to convict the defendant; fraud or threats or other impropriety inducing the plea: R v Boag (1994) 73 A Crim R 35; or, more generally, a miscarriage of justice for other reasons: R v Chiron [1980] 1 NSWLR 218 at 235. The last mentioned case establishes that a miscarriage of justice justifying the grant of leave to withdraw a plea of guilty may be established, inter alia, where the decision to enter the plea resulted from an erroneous ruling on the admissibility of evidence. The central question in all cases is whether it has been shown - the onus lying on the applicant - that the plea was not really attributable to a consciousness of guilt: R v Davies (1993) 19 MVR 481. See also R v Boag (1994) 73 A Crim R 35 at 36-37. 3 The grounds of the application are that the applicant is not guilty, that the killing of Tran was done in self defence and the defence of two other prisoners, Dinh and Lu, that the plea of guilty was not entered because of a consciousness of guilt but because the applicant at the time was depressed and under pressure, that other inmates and the warders told him that he would be convicted, that he did not believe the court would believe him and he believed that if he pleaded guilty he would receive a lesser sentence than if he pleaded not guilty and was ultimately found guilty. 4 The applicant is 21 years old and was born in Vietnam. He came to Australia when he was 13 years old and has mainly mixed in the Vietnamese community since his arrival. His English is poor, he has had almost no formal education in Vietnam or Australia, left school when he was 14 years old and gave his evidence before me through an interpreter. 5 According to the Outline of the Crown Case tendered by consent on this application (Ex. A), Nguyen, his co-accused Thanh Hoang Lu and Hoang Huy Dinh, and the victim, Tran, were all inmates at the Silverwater Metropolitan Reception and Remand Correctional Centre, the applicant being on remand for two murders. At about 8.10 am on Tuesday 28 April 1998 the victim, and the three accused were inside the Industrial Centre section of the Correctional Centre in the clothing manufacturing section. Nguyen, Lu and Dinh, who were all armed with scissors that were used in the Industrial Centre, approached the victim and commenced to stab him repeatedly. The stab wounds penetrated the heart, lung, liver, spleen, skull and stomach. There were also cuts on the right hand and forearm consistent with "defence" injuries. Approximately 50 stab wounds were inflicted to the body of the victim. During the course of the attack various Correctional Officers were present and they endeavoured to restrain the men from stabbing the victim. Some of the officers were aware of the identity of each accused. The attack upon the victim only ceased when additional Correctional Officers, including the Governor, arrived and were able to restrain the accused. The three men were spoken to by police and exercised their right to silence. 6 Subsequently, on 19 October 1998 the applicant pleaded guilty to the murder of one Li and was sentenced to penal servitude for a minimum term of 16 years with an additional term of 6 years. In relation to those proceedings he was represented by Mr M Hobart, barrister-at-law, who was assisted by an instructing solicitor. Those persons spoke to him a number of times before he entered his plea. Then on 4 November 1998 he pleaded not guilty of murder but guilty of manslaughter in respect of the killing of one Truong, and again Mr Hobart appeared for him. He was sentenced to penal servitude for a fixed term of 4 years to be served concurrently with the earlier sentence. 7 In relation to the current matter he was represented by Mr Justin O'Loughlin, an experienced member of the Criminal Bar instructed by Mr Hill, solicitor, and he agreed that those persons visited him in gaol three times prior to him entering the plea. The matter was first mentioned in this Court on 9 April 1999 when it was stood over to 14 May, on which occasion the applicant, Dinh and Lu all pleaded not guilty and their joint trial was fixed on 18 October. On that day, the applicant (having been visited in gaol by Messrs O'Loughlin and Hill on the previous Saturday) entered his plea of guilty and was remanded for sentence. Apparently due to some administrative bungle Dinh and Lu were not at court on that day and their joint trial started on 20 October when they both pleaded "not guilty". They claimed they acted in self defence and were found not guilty by the jury on 4 November. 8 When this matter was mentioned before Barr J on 19 November to fix a date for the sentence hearing, Mr O'Loughlin indicated that his instructions and those of Mr Hill had been withdrawn, and the applicant indicated that Dr Gumbert (who had appeared for Dinh in his trial) would be his new counsel. Dr Gumbert appeared on 4 February this year and indicated that he had instructions from the applicant to seek leave to withdraw his plea. In cross-examination on this application, the applicant said that Messrs O'Loughlin and Hill told him that if he wanted to change his plea, he would have to obtain other legal representation. 9 The only witness called on the application was the applicant himself. Making full allowance for his lack of education and the necessity to give his evidence through an interpreter, I found him an unsatisfactory and unconvincing witness. Some of his answers were inconsistent and some questions were not answered at all. Moreover, there was no evidence from Mr O'Loughlin or Mr Hill, and through his counsel he maintained his right to client privilege as to communications with them, with the result that there was no evidence from him or them as to what instructions he had given them concerning the killing, nor of what advice they had given him in relation to the plea. The applicant was entitled to take such course, but it resulted in there being no evidence on two crucial issues, namely whether the applicant had disclosed to them that he was acting in self defence or defence of others, and what advice they gave him in relation to the plea. In situations such as this, it will normally be necessary for the applicant to "lift the veil": cf R v Batiste (1994) 35 NSWLR 437 at 444-445; and it is frequently done, e.g. R v Marchando supra at [10], R v Favero [1999] NSWCCA 320 at [12], or even if the lawyers do not give evidence, there is often evidence from the applicant himself of what passed between them: e.g. R v Cincotta (CCA - 1 November 1995) at p 4. 10 Dr Gumbert suggested that I should infer that certain advice would have been given (e.g. that a lesser sentence would be imposed following a plea of guilty than following a verdict of guilty after a plea of not guilty), but that does not answer what I see as the major issue on this application, namely whether at the time he entered the plea, the applicant believed he was guilty of the offence and entered the plea in recognition of that fact. 11 The applicant was asked when he first became aware of the defence relied on by the co-accused and he said it was a few weeks after they were acquitted. But if the three of them were in fact acting in self defence at the time that Tran was killed, he must at all times have known what their and his defence was or would be; and the reply that he only found out what their defence was after they were acquitted strongly suggests to me that none of them were acting in self defence and this was a story thought up at a later stage, particularly as the applicant maintains his claim to client privilege and there is no evidence of him telling his legal advisors or anyone else before entering his plea, that he was acting in self defence or in defence of Lu and Dinh. Although Tran was described as a large man, the evidence is he was stabbed about 50 times by the assailants between them in a 3 to 1 contest, and I find the proposition that they were acting in self defence not really credible. 12 Dr Gumbert said from the Bar Table (again without evidence) that other serious matters emerged in the trial of Dinh and Lu suggesting that Tran was a standover man, rapist and heroin supplier in the gaol who was being protected by the warders; but the relevance of this (even if it were proved) escapes me, as the applicant does not claim that is why Tran was killed; and once again there is no evidence that these matters were communicated to his legal advisors at the time he was receiving advice on how to plead to the charge. 13 The applicant says that although he knew he was not guilty because he was acting in self defence, he did not think that he would be believed by an Australian court, but in the light of the verdict in the Dinh and Lu trial, he now believes that he may be. He also says he was under pressure from inmates and warders who told him he would be found guilty, and he was depressed in the sense of feeling sad, unhappy and tired of life. 14 But as I have said, I found him an unconvincing and unsatisfactory witness; and in the absence of some supporting evidence from his former barrister and/or solicitor, I am not satisfied that self defence ever occurred to him prior to the acquittal of the other two, and this application appears to be a cynical attempt to take another chance. 15 I have no doubt that if he had been acting in self defence, it would have been the first thing mentioned to his legal advisors; notwithstanding his lack of formal education it would be the first thing to occur to any one as a defence to a charge of murder, and he was not at the time unfamiliar with the criminal law, and the offence of murder in particular. 16 I am not satisfied, the onus being on him, that at the time he entered the plea he was not acting voluntarily with full appreciation of the issues involved, having received proper and competent legal advice; and I am not satisfied that his plea of guilty was occasioned by anything other than a realisation that he knew he was guilty of the offence. In particular, I am not satisfied the plea was entered pursuant to any material mistake or lack of understanding on the part of the applicant or was induced by any fraud, threat or other impropriety. 17 This matter was listed for judgment on 26 June 2000 but on that day Dr Gumbert sought an adjournment so that he could have the opportunity of obtaining further instructions and possibly putting on further evidence. That application was acceded to and the matter adjourned to today (see my judgment of 26 June 2000). No further evidence has been adduced and I am informed that none will be. 18 For these reasons the application is dismissed. -----------------

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