R v Nguyen [2001] VSCA 1

R v Nguyen [2001] VSCA 1 - VSCA 2001 case summary — Zoe

[10]

Upon the issues of voluntariness and intent, the applicant had not advanced his cause by his conduct after the shooting. He had, almost immediately, left the house by the rear door and disposed of the weapon, first by concealing it in bushes nearby and, later, by disposing of it in the waters off Altona beach. It was never recovered. Thereafter, he pretended to the police (when, inevitably, they arrived) that some unknown intruder had been responsible for the shooting - and not him. He claimed to have been sitting in the lounge room with his wife. He had also encouraged his wife and step-daughter to make similar allegations to the police. These stories had initially baffled the investigating police, particularly in light of the fact that they had not been able to locate any gun-shot residue on the person or clothing of the applicant - in itself a somewhat surprising consequence if the applicant had had his hands on the firing mechanism of the gun when it discharged. The true facts only became known to the police when the applicant's wife, two days after the shooting, went to the police and told them that the applicant had been responsible for the discharge of the fire-arm. Consequently, and unbeknown to the applicant, the wife co-operated with the police when they installed a listening device in the house connected to a recorder located in a listening outpost manned by police. Thereafter the wife, no doubt pursuant to police instructions, engaged the applicant in conversation about the circumstances in which the shooting had occurred. That conversation, which took place in the Vietnamese language, was recorded. A translation of it was provided to the jury. Its content made it clear that the applicant was accepting responsibility for the shooting, but it also made it clear that the applicant was contending, as he did in evidence before the jury, that the shooting was accidental, that he loved the deceased, and that the gun had discharged whilst he was "fiddling" with it. Thereafter, however, in a recorded record of interview with the police (but before police had access to a translation of the secretly recorded conversation) the applicant had persisted in his account that he was not involved in the shooting.

[30]

"I turn to the subject of lies, or alleged lies, on the part of the accused. The accused has given evidence before you, and he has spoken at length to the police and that evidence is before you as is the evidence of what he said on other occasions. [The prosecutor] put to you that the accused lied in many respects in what he said to the police and in his evidence before you and on other occasions. I need to say something as to how you should treat what you find to be lies on the part of the accused, if you do so find. It is a matter for you to assess the credibility of the accused. If you are satisfied that he has lied when giving his accounts to the police or when giving his evidence to you or otherwise, you can take that into account in assessing the credibility of his evidence. [The prosecutor] dealt with a number of statements made by the accused which [he] said were lies. He did not say to you that the accused has lied and therefore he is guilty of the crime with which he is charged, and I tell you you are not entitled to go through the process of jumping from - we are satisfied the accused has lied, and then to say if he has lied, he must be guilty of the crime with which he is charged. There are differences in the accounts given by the various witnesses, including the accused, and as I have said before, you do not have to, and you could not, reconcile all those differences. You will or may have to assess which parts of inconsistent accounts you treat as being true and which parts you treat as not being true. Just as with the evidence of other witnesses, so too you have to assess what parts of the account of the accused to believe where those parts are inconsistent with other evidence or are, in your assessment, incredible. You will have to make your assessment of the credibility of each witness, and in doing so you may find that that particular witness has lied. You may find that in relation to more than one witness, you may find that in relation to the accused. What is important, so far as the accused is concerned, is that you cannot take the further step of saying, if he lied he must be guilty of the crime with which he is charged."

[42]

In the peculiar circumstances of this case, it is my opinion that this ground has been made good. Notwithstanding the trial judge's general directions to the jury that they could only use such lies as they found the applicant had told to police in assessing the credibility of his evidence, and that they could not "jump from" lies so found to guilt, it seems to me that there was a real risk in this case that the jury would use the applicant's immediate post-offence conduct as probative of his guilt. It was the conduct of the applicant, immediately after the shooting, in concealing the weapon and thereafter pretending to police that an intruder had shot the deceased, which, because it was capable of being used to prove intent, put the applicant at risk in the absence of proper directions. It was this combination of the concealment and pretence which gave the evidence its probative value. It did not lose its probative value, as the judge appears to have thought, simply because the applicant thereafter conceded that he was holding the gun when it discharged. If anything, that only accentuated the materiality of the evidence because the issues were narrowed to "voluntariness" and "intent". These issues could only be determined by the drawing of inferences and the jury were invited to draw those inferences in part by relying upon the post-offence behaviour of the applicant. Post-offence conduct, including lies, only becomes probative because it stems from a "consciousness of guilt". The strength of its probative value, however, will depend upon its nature and the use which is sought to be made of it. It will rarely be the case that its strength is such that it can prove guilt directly. Generally, as here, it will form part of the body of circumstantial evidence from which the jury is asked to infer the guilt of the accused. Where that is the case, it has been said that the employment of the term "consciousness of guilt" is misleading because it suggests a conclusion about the conduct which undermines the presumption of innocence[3]. However, where the conduct is being used, and is capable of being used, to prove guilt, the trial judge must, in my view, be astute to the clear possibility that the jury will so use it, and to give such directions as are needed to ensure that it is not misused.

[44]

I am acutely aware that the task of the trial judge, in cases where the prosecution is relying upon post-offence conduct (including lies) alleged to have been engaged in by the accused, is not an easy one. There was a time when prosecutors would go to extreme lengths to assert, from material inadequate for the purpose, "consciousness of guilt lies" as support or corroboration for a witness whose evidence was required by law or practice to be so supported. A ready acceptance by trial judges that such "lies" could constitute corroboration has been a fertile field for appellate intervention[5]. However, the overriding obligation of the trial judge is to give such directions as will ensure, as best he can, that the accused secures a fair trial according to law[6]. Of course, the nature of the directions required to be given must depend upon the issues which are being fought between the parties at the trial. In this case the real issue being fought between the parties was whether the firearm was discharged by the applicant voluntarily and with the intent to kill or cause really serious injury, or whether it discharged by accident. The post-offence conduct of the applicant in disposing of the weapon and thereafter pretending to the police that the deceased was shot by an intruder was heavily relied upon by the Crown in proof of that issue. It was evidence upon which the jury was inherently likely to rely in determining the issue. I use the term "post-offence conduct" advisedly because it extended to the disposal of the weapon and, thus, went beyond the lies told to the police. In this sense, it was open to be used by the jury, as the Crown was asserting, as part of the circumstantial evidence upon which the jury could find that the gun was discharged voluntarily and with the relevant intent by the accused[7]. It was conduct which, as the Crown said, invited the logical query : why would he act in this way if it was an accident? It has often been recognized that, while evidence of post-offence conduct is capable of being used by the jury as evidence of guilt, it is also capable of being misused. The Supreme Court of Canada in the recent case of R. v. White & Anor.[8] put it in these terms:

[47]

Such directions, in my view, were called for in this case because the circumstances of the shooting and the background and culture of the applicant were capable of providing a rational explanation for his post-offence conduct other than a realization of his guilt of the offence charged. Panic and shame at having just shot his step-son in close proximity to his mother, a legitimate desire to avoid being held responsible for what had happened, and fear of being falsely implicated in a charge of murder either by police or members of his family were open to explain such conduct, even if the shooting had been accidental. Indeed, this is how the applicant sought to explain it. In these circumstances, it seems to me that a failure to give a direction, accompanied by the authority of the judge's office, of the type to which I have referred carried with it a perceptible risk of injustice to the appellant. The direction which was given failed to meet that risk. To simply tell the jury, in giving directions generally about the credibility of witnesses, that, in assessing the credibility of the accused and his evidence, they could - if so satisfied - take into account the fact that he had lied "when giving his accounts to the police or when giving his evidence to you or otherwise" did not, in my view, go far enough. Nor was it sufficient to tell the jury, in the circumstances of this case, that if they were satisfied that he had lied in respect of some matter, they could not take the further step of saying that "if he lied he must be guilty of the crime ... charged". These directions concentrate upon what the applicant said; not upon what he did. The very purpose of the directions which, in my view, were called for in this case is "to counter the jury's natural tendency to leap from evidence of flight or concealment to a conclusion of guilt, and to ensure that alternative explanations for the accused's conduct are given full consideration"[12]. In this case where there were, as I have previously noted, objective facts and circumstances suggesting the improbability of murderous intent, it was - as I see it - important for the judge to have specifically brought to the jury's attention possible explanations for the applicant's post-offence conduct consistent with absence of such intent. By confining the directions in the manner to which I have referred, they were - I think - apt to be confusing to the jury when, later in his charge, the learned judge told them that, in considering what inferences they could draw as to the applicant's intent, they were entitled to take into account his post-offence conduct. Although those directions were given in general terms - and appear to be cautiously avoiding specific reference to the concealment of the weapon and the pretence which followed it - they were, as I have said, inviting the jury to go beyond using evidence of such conduct merely in assessing the credibility of the accused and to use it in proof of his guilt. Indeed, it is apparent from what his Honour had said in rejecting the "no case" submission that such conduct was open to be used by the jury in determining the issue of guilty intent. If it was the view of the judge, as it seems it was, that the applicant's post-offence behaviour could be used to prove the requisite intent for murder, then it was highly likely - particularly in the light of the prosecutor's strong reliance upon such conduct - that the jury would so use it also. In those circumstances, it became important for the judge to tell the jury that there may be explanations for the applicant's conduct other than a realization of his guilt of murder, to tell them what those possible explanations might be, and to tell them that they could only use the evidence of the applicant's conduct as evidence of murderous intent if, at the end of the day, they were satisfied that there was no other innocent explanation available to explain that conduct[13]

[69]

I respectfully agree with the President that, although the directions were adequate in so far as they dealt with the assessment of the credibility of the witnesses, they were insufficient to secure for the applicant a fair trial according to law; they did not sufficiently explain how the jury might use the fact that the applicant had engaged in deceptive conduct and had lied to the police. First, his Honour's charge dealt only with the applicant's lies. There was no reference, in terms, to his deceptive conduct. Thus, the jury were deprived of any guidance from the judge as to how they might properly use that evidence. Notwithstanding that the prosecutor described the applicant's act of "getting rid of the shotgun" as "the first lie", in my opinion, unlike the situation in R. v. Rice[25], the jury would not have regarded his Honour's direction which dealt with the applicant's lies as extending to his deceptive conduct; particularly, his concealing of the weapon before the arrival of the police. In his cross-examination of the applicant and in his final address to the jury, the prosecutor placed considerable emphasis on that conduct and, in the main, dealt with it separately from the admitted lies. In the circumstances, there was at least a risk that the jury would not have understood his Honour's direction in relation to the applicant's lies as extending to his conduct involving his concealment of his gun after the shooting. Secondly, although his Honour told the jury that they could properly use the applicant's lies as going to his credit, he stopped short of saying that that was the only purpose for which they could use it. There was, therefore, a risk that the jury might have regarded that evidence as being relevant to the determination of the applicant's credit as well as it being relevant to his consciousness of guilt. Next, his Honour did not tell the jury with the full weight of his judicial office that the applicant might have lied and engaged in the deceptive conduct for reasons which were consistent with his innocence. Given that the jury were likely to rely on that evidence in determining whether the applicant had the requisite intent, a direction which emphasised that there may be an alternative explanation for the applicant's deceitful behaviour should have been given by his Honour. Failure to do that created, in my opinion a risk that the jury might engage in impermissible reasoning in relation to that evidence and, as I have said earlier, simply treated it as consciousness of guilt of the offence with which he was charged.

At a glance

Court

Decision date

Before

Source

Judgment (293 paragraphs)

Parties

Cases Cited (14)