R v Nguyen [2005] VSCA 120

2 I agree, for the reasons given by Vincent, J.A., that the application for leave to appeal against conviction should be disposed of as he proposes.

3 The applicant was, on 1 May 2003, found guilty by a jury in the County Court on one count of affray.

4 The applicant now seeks leave to appeal against his conviction, relying upon the following grounds:

"1. The learned trial judge failed to adequately charge the jury about how a lie or lies could be used to infer guilt of the crime charged.

2. The learned trial judge failed to identify such lie or lies as constituting an admission against interest.

3. The learned trial judge failed to instruct the jury or adequately instruct the jury that such lie or lies if proved could only be taken into account if they revealed a knowledge and consciousness of the offence charged and the reason the accused said such lie or lies.

4. The learned trial judge failed to adequately instruct the jury that there may be reasons other than consciousness of guilt for the telling of a lie or lies by the accused person.

5. The learned trial judge failed to adequately instruct the jury as to the difference between lies going to credibility and lies which could be used to establish guilt.

6. The learned trial judge erred in saying the following to the jury in the course of his charge ...

'And it seems to me, and this is a comment by me that does not bind you, it seems to me that in the context in

which the accused man was found by members of the police force when he was arrested you ought to be satisfied beyond reasonable doubt that the account he gave was false, and that his only reason for giving that false account was his consciousness, his awareness of his guilt for this crime.'

...

7. The learned trial judge erred in failing to give any direction on complicity.

9. The learned trial judge erred in failing to leave as an alternative the charge of assisting an offender contrary to s.325 of the Crimes Act 1958.

10. The verdict of the jury is unsafe and unsatisfactory in the sense that no reasonable jury properly instructed could have been satisfied beyond reasonable doubt that the applicant was guilty of the offence charged."[1]

The Background

5 There is no need to set out the evidence adduced at the applicant's trial in substantial detail as there would appear to be no controversy concerning much of the background circumstances.

6 Kenneth David Duong was a student at Debney Park Secondary College on 10 September 2001. At about 2 o'clock on the afternoon of that day, on being sent out of his classroom for some reason, he sat under a tree in the schoolyard. Approximately ten minutes later, a group of young Asian males wearing dark clothing, walked towards him. He recognized two of its members, neither being the applicant. One of the group swung a metal pole at him and another pulled out a machete from his clothing. He became aware that he had been hit by one or other of these objects, although he had sensed no impact, as he felt blood running down his face. Duong ran towards the adjacent Mount Alexander Road on which he tripped and fell. Whilst on the ground, he was attacked again, before the group suddenly ran off. Duong did not know how many of his assailants chased him and, specifically, he could not identify the applicant as one of those involved in these events. The occurrence was witnessed by a number of persons in the vicinity, variously referring to the attacking group as constituted by four, five or six males.

7 That Duong was attacked in this fashion was not in dispute in the applicant's trial. What was challenged was the Crown contention that he was a participant in what had taken place.

8 Although there was some evidence that one of the group had a hairstyle similar to that of the applicant, he was not identified by any witness and there was no observation or forensic evidence that could lead directly to the identification of him as one of the assailants. Further, there was no evidence that he was acquainted with or had any association of any kind with the victim. The prosecution, to support its contention that he was implicated, relied upon the evidence of two witnesses, Robert Augustini and Darren White, who attempted to follow the group as they ran from the scene, the fact that he was located, not long after the event, in the company of persons who, it was reasonable to infer, were involved, and his explanation as to the circumstances under which he came to be with them.

9 Although neither Augustini or White was able to keep the members of attacking group under observation for the entire period after they left Mount Alexander Road they saw enough to direct the police to an area in a reserve where four young men, including the applicant, were sitting near a large stormwater culvert. Two metal pipes and three machetes were located nearby. Later investigations disclosed the presence of Kenneth Duong's blood on the clothing of all, save that of the applicant.

10 When interviewed, the applicant stated that he was at home in St Albans at about 2 p.m. to 2.30 p.m. when he received a telephone call from a friend to go to Flemington "as there was a problem". He said, "Okay, I will come down" and caught a train to North Melbourne and then another to Flemington, arriving there at about 3 p.m. He said that he walked to a McDonalds' store and called his friend who gave him directions to the reserve in which they were sitting. He joined them and was in their company when all present were arrested by the police. The applicant denied any involvement in the events in the schoolyard and said that he knew nothing of the weapons that the police found, although he indicated that he may have touched one.

The Grounds

11 As this very brief outline indicates, the case against the applicant rested upon the jury accepting that the persons subsequently intercepted by the police comprised or, were at least part, of the group who attacked the victim. The evidence of witnesses was that a group of four to six Asian males were involved and that they were followed to the general area in which the applicant and his companions were found. As the group was not under observation for the entire period, the possibility of a change in its composition could not be discounted[2]. Of the persons taken into custody, only the applicant had no blood of the victim on his clothing, and, as I have pointed out, he was not identified by the victim or any of the witnesses as a member of the attacking party.

12 There would seem to be no doubt that all involved in the trial accepted that whilst the presence of the applicant in the circumstances was highly suspicious, it was incapable of itself of providing an adequate foundation, in the face of the applicant's denial of involvement, for the inference to be drawn beyond reasonable doubt, that he was a party to the affray. The focus of the Crown's case was therefore placed upon the applicant's version of his movements and, in particular, his claim to have been contacted at his home between 2 p.m. and 2.30 p.m. and requested to provide assistance to his friends[3].

13 The prosecutor argued that the jury should conclude that the applicant had deliberately provided a false version of the circumstances under which he came to be in the company of other persons involved in the affray, for the sole purpose of avoiding responsibility for his participation in it. This contention, in turn, rested entirely upon the evidence of independent and reliable witnesses, that made it apparent that the applicant did not leave school at around 2.00 p.m., as he claimed when interviewed, and that he could not have received a telephone call at around 2.30p.m. or reached the reserve after 3.00 p.m. These were not matters about which the applicant may have been mistaken, the prosecution submitted to the jury, and therefore he could be seen to have deliberately lied. The only reasonable explanation of having done so was his knowledge that disclosure of the truth would expose his guilt, the argument proceeded.

14 In response, counsel for the applicant submitted to the jury that his client, according to his record of interview, was not wearing a watch on the day and simply was mistaken and uncertain. No adverse inference could in that situation be properly drawn he argued. Even if, his client had not told the truth, it could not be concluded that he was guilty of involvement in the affray as there were a number of reasons why he may not have been prepared to disclose all that had transpired from his perspective.

15 If the other evidence was correct (and there is nothing to suggest that it may not have been), there can be no doubt that the applicant was at least wrong about the various estimates of time to which he referred in the course of questioning by police. Evidence was adduced from teachers at the school attended by the applicant that, whilst he was present during the morning, he did not respond to a roll call at an art class that commenced at 1.40 p.m. The jury was entitled to conclude that he had left before that time also, as, the prosecutor pointed out to the jury, the applicant could not have arrived at the Flemington reserve at about 3.10 p.m. as he claimed in his interview when regard was had to the uncontroverted evidence of Detective Sergeant Hardy that he was taken into custody at around 2.30 p.m.

16 Against this background, it is significant that, save that he claimed to have seen a clock at the Flemington railway station showing 3 o'clock, as the following extracts from the record of his police interview show, the applicant at no stage indicated any confidence that his estimate of a relevant time was accurate or, indeed expressed a significant degree of certainty:

I can't remember how long I was sitting there for until the cop come and get me.

122 What time would you say that the police came or the cops came?

I forgot me watch. I dunno. I got no time.

123 You didn't look at the time?

Nuh.

...

177 And what time did you finish class?

I finished before 2.30. Around 2.20 or 2.15. 'Cos weight-training has got no time. You - you lift whatever you can.

178 How long did you do weight-training for?

Probably 2 weeks.

179 No, today.

Today?

180 Yeah.

I start - I fin-, finish lunch at 1 - 1 4 - start lunch at 1.40. I'm not sure what time I finished it - I went to the gym to do weight-training. Thinking about it, I can't remember what time I done that.

220 So, can you be sure of any of these times that anything happened today?

231 Would you say that the - the police - there was lots of police on - on that road just where - near where you would cross and a helicopter flying over head. Do you remember any of that?

Yes. I remember I see the helicopter.

232 At what time did you see the helicopter?

I am not sure."

17 As the trial judge pointed out to the jury in his charge:

"[I]n effect the Crown relies upon one assertion."

"[I]t seems to me, and this is a comment by me that does not bind you, it seems to me that in the context in which the accused man was found by members of the police force when he was arrested you ought to be satisfied beyond reasonable doubt that the account that he gave was false and that his only reason for giving that false account was his consciousness, his awareness of his guilt for this crime. That seems to be the line of reasoning which in this case you would have to be able to embrace before you would be entitled to return a verdict adverse to the accused man.

18 There could be no uncertainty concerning the foundation upon which the Crown case rested. It was accepted that unless the jury found that the applicant had deliberately lied and had done so in order to conceal his guilt, he was, in the circumstances of the case, entitled to an acquittal. From the outset, the trial had proceeded on that basis and no question of the interpretation of what was being put before the jury appears ever to have arisen. Why the trial judge used language that conveyed a suggestion of uncertainty and why he commenced his remarks on this aspect with the statement "that this is a comment by me that does not bind you", is unclear, although I suspect that his Honour, who possessed many years of experience in the conduct of criminal trials, was perhaps overly cautious about intruding into the jury function. Be that as it may, the possibility that jury may not have fully appreciated the manner in which the prosecution case had been formulated can, I think, be discounted.

19 The question, encompassed by grounds 1 to 5 in the applicant's Notice of Appeal, then arises - did his Honour properly instruct the jury as to the manner in which evidence contended by the prosecution to constitute an implied admission of guilt of the crime charged must be approached and the uses to which such evidence could be put in the context of a case formulated in this way.

20 His Honour's general directions concerning evidence relied upon by the prosecution as demonstrating consciousness of guilt were expressed in a conventional form and were appropriate in the particular case. What he did not do, counsel for the applicant contended, was identify, except by reference to the addresses of counsel, the claimed deliberate falsehoods and sufficiently instruct the jury as to the reasoning process in which the jury had to engage before they could be regarded as constituting an implied admission of his involvement in the affray. This involved the drawing, to their attention, of other reasonably possible motivations consistent with innocence for the making of any deliberately false statements on which the prosecution relied. These omissions, counsel argued, represented serious departures from what was said to be required by the High Court in Edwards v. The Queen[4] in the provision of such instructions and gave rise to a serious risk of a miscarriage of justice in the circumstances.

21 There is no need to refer to the plethora of judgments that have been handed down over recent years dealing with words or conduct to demonstrate consciousness or awareness of guilt of the crime charged and thereby constitute an implied admission of responsibility for its commission. The concept is straight forward enough, although difficult to apply as the cases demonstrate. The law accepts that the statements or behaviour of an individual following the commission of an offence, can on occasions be seen to contain the person's acknowledgment that he or she was the perpetrator or one of the perpetrators of it. However, for reasons that hardly require elaboration, there is also recognition that to reason to guilt in this way can be very dangerous and productive of injustice. There can be many reasons or influencing factors in a given situation that may induce or result in the making of deliberately false statements or engaging in apparently inculpatory behaviour by an accused person. The inference of guilt can only be drawn therefore when all save one, - the accused's consciousness of guilt of the criminal conduct involved - has been excluded beyond reasonable doubt.

22 In the case of alleged lies to be used in this way, the prosecution must establish, according to the standard of proof in a criminal trial, that the words were uttered, that they were material to the conduct alleged (as otherwise they could not possess relevant significance), that they were not only untrue but deliberately false and that the reason for the making of the false statements was to conceal the guilt of the person of the offence concerned. It is, of course, fundamental therefore to the use of alleged deliberate lies as implied admissions of guilt that the specific lies relied upon should be isolated by the trial judge in his charge and the reasoning process by which they could be properly regarded as demonstrating consciousness of guilt and thereby constituting implied admissions be identified for the jury.

23 These tasks, counsel for the applicant in this Court submitted, were not undertaken in an adequate fashion by the trial judge. It was pointed out that his Honour did not identify the claimed lies, except by reference to the prosecution's address, and argued that the jury was provided no assistance as to the possible significance of any statements that they found were deliberately untrue. What his Honour said was:

"So the case really turns on whether you are satisfied beyond reasonable doubt that the accused man was a part of that group. The Crown says that this is a conclusion that you can draw from certain passages in his interrogation by the police. [The Crown] emphasised the passages upon which he relied. I do not propose to go to those passages in detail. [Counsel for the accused] did, he quoted from them in detail, but it seems to me, from the nature of the issue before you, it is sufficient for me to say - describe them only in general terms, and the general terms are that the thrust of what the accused man was saying was that at 2.30 he got a phone call from a friend who asked him to come to Flemington. He walked to the station, he caught a train to North Melbourne, and then to - on a different line, to another station, whether it be Flemington or Newmarket, or whatever, that he was unsure, when he used a public phone to ring his friend and got directions to go to the place where he met the group with which he was mixing at the time he was apprehended by the police.

...

The Crown says that that account is, for the reasons that I have already referred to, is false and ought not to be accepted by you."

24 Seldom, I would suggest, would it be sufficient, as the trial judge did here, to identify the statements alleged to be deliberately untrue "in general terms." Acknowledging that the situation, presently under consideration, is somewhat unusual in that the entire trial was conducted on the basis of the prosecution claim that the applicant had lied about the circumstances under which he came to be found in the company of persons who, it could be accepted, had been involved in the affray, this did not relieve the trial judge of the responsibility of identifying the lies relied upon with greater specificity than he did. In this context, I should point out that the record of interview contains a number of "no comment" answers and other statements relating to what he may have known or learned from his companions concerning the events. There was a danger that the jury may have acted on the basis of a general impression formed from the totality of the material before them rather than undertaking the analysis required.

25 But his Honour's directions were deficient in another important respect. As I have already pointed out, there is recognition in the various authorities dealing with the post event conduct or words of an accused that there are risks involved in reasoning to guilt in this way.

26 Accordingly, a trial judge is under a duty to ensure that the jury is properly instructed not only in relation to the matters to which I have just referred but also with regard to what, in the circumstances of the particular case, could be sensibly perceived as the possible motivations, other than recognition of guilt of the conduct alleged, for making the untrue statements or engaging in seemingly inculpating behaviour.

27 On this aspect, his Honour told the jury:

"You must be satisfied, to come to that conclusion, that he did not lie for some other reason, for example, concern that he might be falsely implicated in the commission of the crime on the victim, or in the criminal acts of other people."

...

"You must be careful to consider the possibility that the accused may have wrongfully believed himself to be guilty, although that would be difficult to accept if he believed that he was not at the scene at the time."

28 Of course, the possibility that the applicant may have been concerned that he could be falsely implicated and, in consequence, attempted to distance himself as far as possible from what had taken place, to the extent that he lied about the circumstances under which he came to be in the company of the three other young men, was a matter to which the jury needed to direct attention. The other possibility mentioned by his Honour, and then effectively discounted, can, I think, be put to one side. But the situation was fraught with possibilities, not the least remote of which was reluctance on the part of the applicant to implicate others with whom he was associated either for reasons of friendship or apprehension of retribution from them had he done so. The further possibility that he may have been contacted to provide assistance and arrived after the events also could not be ignored. These, I should add, are simply examples and a large number of available hypotheses could be advanced. I consider that the judge's instructions on this aspect were inadequate particularly when regard is had to the crucial importance of the "lies" to the prosecution case.

29 The jury, who by their verdict must have found that the applicant did deliberately lie, were concerned about this matter and sought further directions, requesting his Honour to restate with respect to possible the motivations for lying, "the points that you mentioned at the end of your address".

HIS HONOUR: Yes. I'm not sure that I understand what you mean by restate the motivation for lying.

FOREMAN: There were three points - sorry, there were three points you made at the end, and the jury was interested in having those reaffirmed, or just redone, because they couldn't remember all that information that you gave them at the time.

30 His Honour then provided a further general direction on evidence demonstrating consciousness of guilt but relevant to their request said only:

"Thirdly, and this is also very much in dispute, and that is that the only reasonable explanation for the lies that you find that the accused did say was his consciousness of guilt of this crime. Not some other wrongdoing, or because of some other reason to lie, and what I said to you yesterday was, for example, his concern that he might be falsely implicated in the criminal acts of others with whom he was found."

31 After the jury returned to their deliberations, counsel for the applicant submitted that this instruction was inadequate in more than one respect and that specifically it did not satisfactorily address their concern. He read the following passage from the joint judgment in Edwards:

"Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realisation of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person, or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie,[5] [and I'll stop there and remind Your Honour that the question was actually framed in terms of motive to lie, which in my submission, given that it's an amateur question or coming from non-lawyers, is very similar to this and may well have application.][6]

"Juries should be told that if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognised that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they're appropriately instructed with respect to these matters."

"I did say to the jury that they ought to specifically consider the possibility of some other motive to lie, and indeed, I gave an example of some other motive to lie in the circumstances of this case, namely, the concern that the accused might be falsely implicated in the criminal acts of the others with whom he was detected.

It seems to me that that is the most obvious fear that might have been in the mind of the accused at the time. I drew the jury's attention specifically to it. I do not propose to redirect."

33 In my view, the trial judge cannot be seen to have instructed the jury adequately with regard to the possible motivations of the applicant for providing a false version in the circumstances. Bearing in mind the applicant's expressed uncertainty in his police interview about the estimates of time upon which reliance was placed by the prosecution, his statements with respect to the various times provide, in my view, at best a fragile basis for a finding of guilt against him, and one which, I consider, can be seen to give rise to a real potential for a miscarriage of justice. That risk was, I consider, magnified by the provision of inadequate instructions to the jury. Accordingly, the verdict should not, in my opinion, be permitted to stand.

34 In any event, when regard is had to the very narrow foundation in which the prosecution case rested, as outlined earlier, and bearing in mind the responsibility of this Court as identified by the High Court in M v. R.[7], I am of the view that the conviction of the applicant would have to be set aside on the basis that it was unsafe and unsatisfactory in the circumstances. It is difficult to see on what basis the jury could have found beyond reasonable doubt that he deliberately lied about the various times when he evidenced such uncertainty about them. A serious question arises, for example, as to why, save the presence of confusion, he told the police that he reached the reserve approximately half an hour after he was taken into custody. Perhaps the applicant was being disingenuous or maybe, and certainly at least equally possible, he just did not know at what time he arrived.

35 Accordingly I would allow this application, set aside the applicant's conviction and direct that a verdict of acquittal be entered. Since the comments in the immediately preceding paragraph apply equally to counts 2 and 3, the same entry should be made in respect of them in order to clear the presentment when the entry in respect of count 1 is made.

36 There is, in this situation, no need to address the complaints raised in ground 9 of the applicant's Notice of Application. However, I would add that there was simply no legitimate basis for leaving this alternative to the jury. There was no evidence of the provision of any assistance whatever which would either require or justify the putting of this charge as an alternative to the jury. Indeed, if the applicant had been convicted of an offence under s.325 of the Crimes Act, in my view it would have been obligatory for this Court to set that verdict aside.

[1] A further ground (no. 8) was not pursued.

[2] The finding of five weapons could be viewed as providing slight support for the possibility that there were five persons involved and that the composition of the group had altered.

[3] There was an argument advanced by the Crown that the affray had already taken place. However, as the Court pointed out in the course of the hearing before us, the expression is equivocal and could equally refer to a situation that was perceived as calling for a response.

[4] [1993] HCA 63; (1993) 178 C.L.R. 193

[5] [1993] HCA 63; (1993) 178 C.L.R. 193 at 211 per Deane, Dawson and Gaudron, JJ.

[6] The italicised portion designates counsel's interpolation.

[7] [1994] HCA 63; (1994) 181 C.L.R. 487