R v Nguyen

Ex Tempore Judgment 1HIS HONOUR: On 19 July 2012, Philip Nguyen, the applicant entered a plea of guilty to the charge that he on 8 September 2010 at Bankstown in the State of New South Wales, did feloniously slay William Crews. This is a charge of manslaughter contrary to s 18(1)(b) Crimes Act 1900; which was the first count on the indictment upon which he was arraigned before Latham J on that day. 2The indictment contained two further counts being a charge of shooting at William Crews with intent to murder contrary to s 29 Crimes Act (count 2) and an alternative count of wounding William Crews with intent to cause grievous bodily harm contrary to s 33(1)(a) Crimes Act (count 3). He pleaded guilty to the third count. 3Offences of unauthorised possession of a pistol contrary to s 7(1) Firearms Act 1996 and supply of methylamphetamine contrary to s 25(1)/s 29 Drug Misuse and Trafficking Act 1985 were included on a Form 1. 4At the time the pleas were entered, the applicant was represented by Stephen Hanley SC who was instructed by Christopher Watson, a solicitor. 5Mr Hanley was admitted to the bar in December 1986 and has practised solely in criminal law. He has conducted numerous trials on behalf of accused. Mr Watson has practiced as a solicitor for 42 years predominately in the area of criminal law. 6The Crown accepted the pleas in full satisfaction of the indictment. The applicant's trial that had been listed to commence on 8 October 2012 was vacated and proceedings for sentence were fixed for 9 and 10 October 2012. 7At the request of the Crown, the matter was listed before me on 3 October 2012 as the Crown had been informed that Mr Hanley and Mr Watson were no longer instructed by the applicant. The applicant told me that he intended to engage a private solicitor to withdraw his plea of guilty. On 9 October 2012, Ho Ledinh, a solicitor appeared on the applicant's behalf, the sentencing proceedings were vacated and procedural directions were made concerning the application to withdraw the pleas. 8By a notice of motion filed on 8 November 2012, the applicant seeks leave to withdraw his pleas of guilty and to enter pleas of not guilty to all the counts on the indictment. 9The court has the discretion to allow an accused to withdraw a plea of guilty at any time prior to the passing of sentence: Frodsham v O'Gorman [1979] 1 NSWLR 683. 10In R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472, Spigelman CJ at [32] summarized the circumstances that had been identified when the Court of Criminal Appeal had intervened to set aside a guilty plea: where the appellant 'did not appreciate the nature of the charge to which the plea was entered': R v Ferrer-Esis (1991) 55 A Crim R 231 at 233. where the plea was not 'a free and voluntary confession': R v Chiron [1980] 1 NSWLR 218 (at 220 D-E). the 'plea was not really attributable to a genuine consciousness of guilt': R v Murphy [1965] VR 187 at 191. where there was 'mistake or other circumstances affecting the integrity of the plea as an admission of guilt': R v Sagiv (1986) 22 A Crim R 73 at 80. where the 'plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty ... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt': R v Cincotta (Court of Criminal Appeal, NSW, No 60472 of 1995, 1 November 1995). the 'plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt': Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 at 511; 186-187. if 'the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt': R v Davies (1993) 19 MVR 579 at 583. 11Each case depends on its own facts and a decision is to be made whether justice requires that a plea of guilty should be permitted to be withdrawn: Sagiv at 80 12When discussing the legal principles relating to a withdrawal of a plea where an accused is legally represented, Basten JA in Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 observed at [23]: "It has long been established that, even after conviction, a plea may be changed and the conviction set aside if it be established that the appellant "did not appreciate the nature of the charge or did not intend to admit he was guilty of it": see R v Forde [1923] 2 KB 400 at 403, discussed in R v Murphy [1965] VR 187 at 188. Where the accused is legally represented, the court will usually be entitled to rely upon a plea as having been given with an appreciation of the nature of the charge and with an understanding of what was being done. But there may be evidence which contradicts that presumption." 13Basten JA noted at [27] the "principles of restraint" identified by Kirby P in Liberti v R (1991) 55 A Crim R 120 at 122: "For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence ... In some circumstances, the circumspection may be based upon a concern that changes in plea may involve an attempt to manipulate the system to delay a feared conviction and sentence." 14Before I commence a review of the evidence, I reiterate that I found the applicant to be fit to give evidence. He did not manifest any disability with comprehension, concentration or attention, nor did he indicate an inability to deal with lengthy questions, nor was there any sign of fatigue during the course of his evidence. However, my overall assessment of the applicant as a witness is that I found him in matters of significance, to be plainly dishonest and evasive. 15In an affidavit sworn 8 November 2012, the applicant states that he was unable to afford private legal representation but had asked the Legal Aid Commission (the Commission) to transfer his file to Ledinh Lawyers, so that Mr Ledinh, a solicitor, could explain to him all aspects of his criminal matter in the Vietnamese language, but the Commission declined to do so. 16The Commission had assigned the file to Mr Watson with Mr Hanley having been previously briefed. Mr Hanley had represented the applicant during the committal proceedings at Burwood Local Court, being instructed at that time by a solicitor with the Commission. 17There were six conferences between the applicant and Mr Hanley and Mr Watson. According to the applicant, it was during a visit on 20 April 2012 that his legal representatives advised him to enter a plea of guilty to a charge of manslaughter and suggested that if "[he] agree to enter a plea of guilty to manslaughter, the Crown will drop a murder charge": (par 12). The applicant states he was surprised at this advice, that he never thought that he would enter a plea of guilty to any serious criminal charge as "[he] did not kill or did not have any intention to kill anyone": (par 13). The applicant recounts that he said words to the effect (par 14): "I cannot enter a plea of guilty to a charge of manslaughter. I do not understand what is meaning of manslaughter?" 18There was no Vietnamese interpreter present during that meeting. 19The next visit by Mr Hanley and Mr Watson was on 26 April 2012 during which Kim Loan Ly, a Vietnamese interpreter was present. The applicant states (paras 16-17): "Through the Vietnamese interpreter, Mr Hanley SC and Mr Watson, Solicitor, advised me to enter a plea of guilty to manslaughter charge. They advised me words to the effect that "if I don't agree and insist to go to trial, the jury will certainly find me guilty of more serious charge, namely, shoot with intend (sic) to murder, and I will have to stay in the prison longer." I was confused as I had been in prison for almost two (02) years with no prospect of my matter to be resolved. My nerve system was almost broke down. I actually did not know what will happen to me in the future. I then agreed to their advised (sic). They asked me to sign some document that I cannot recall now. They then left." 20I interpolate here to refer to Mr Watson's affidavit, to which is annexed a three page document dated 26 April 2012 marked "E" that is signed by the applicant. The document provides detailed instructions from the applicant that he wishes to plead guilty to manslaughter and the offence contrary to s 33(1)(a) Crimes Act and for the offences of possession of an unauthorized firearm, and supply of a prohibited drug to be placed on a Form 1 and to be taken into account on sentence. 21The document records the basis of the applicant's instructions to plead guilty to manslaughter being that the Crown accepts: "1. It cannot disprove I was acting in self defence when I fired at Const. Crews; and, 2. That self defence was excessive." 22Without detailing all of the document, it further records that: "I [the applicant] confirm that I have had explained to me by you the charges; what the DPP has to prove; a consideration of my prospects if I pleaded not guilty and any benefit I may receive by pleading guilty. I note your advice that I shall receive a reduction in the appropriate sentence for my plea of guilty. I confirm that you have not held out to me that I will receive any specific sentence if I plead guilty." 23The document was admitted into evidence as Ex 5. 24The third page of the document contains a statement by Ms Ly that she had translated the preceding pages from English into Vietnamese to the applicant, who had indicated he understood and agreed with its contents. 25It was Ms Ly's evidence that during the course of the conference, she interpreted accurately whatever Mr Hanley said from English to Vietnamese and whatever the applicant said from Vietnamese to English. She translated the whole of the document (ex 5) to the applicant from English to Vietnamese which he appeared to have understood. 26It is plain that this document of instructions is the document that the applicant says in his affidavit that he could not recall. Mr Hanley in his affidavit sworn on 13 November 2012 confirms that the document records the instructions that he took from the applicant on 26 April 2012, which is recorded in his handwriting. Mr Hanley read through those instructions which were then translated to the applicant by the interpreter and signed by them both. 27Nine pages of handwritten notes that Mr Watson made at the conference on 26 April 2012 are annexed to his affidavit and marked "D". These notes accord with Mr Hanley's recollection of the conference. The notes reveal that Mr Hanley in a very careful way, explained to the applicant his legal position, including the issues of causation and excessive self-defence, the options of pleading not guilty or guilty, the range of a sentencing discount for a plea and two of the offences being placed on a Form 1. It is also apparent that the applicant was not told what to do, but was asked what it was that he wanted to do. The notes disclose that the applicant sought Mr Hanley's advice as to whether he should plead guilty but was told that he had to decide, that Mr Hanley could only explain the position to him, that if he wanted to go to trial that his legal representatives would "try really hard" for him to get the best result. Although there was some hesitation on the applicant's part, he decided to instruct his counsel to enter the pleas of guilty. 28All of what was said by Mr Hanley to the applicant and by the applicant to Mr Hanley was translated by Ms Ly, as was the document of instructions (Ex 5). 29I do not accept the applicant's evidence that only parts of the document of instructions were translated for him. 30During his oral testimony the applicant denied that he knew when he entered a plea of guilty to manslaughter that he was saying that he had used excessive self-defence. He rejected the suggestion that the basis of his plea had been explained to him by Mr Hanley when he said (T28 10-11): "He did not explain or give explanation to me on any matter at all". 31It is very clear from Mr Hanley's evidence which is supported by the conference notes and document of instructions that Mr Hanley explained to the applicant, amongst other things, the concept of excessive self-defence and the basis upon which the Crown would accept a plea to manslaughter. 32It is convenient here to mention one of the arguments raised on behalf of the applicant this morning. 33During submissions, Mr Ledinh appeared to contend that a jury could not find that the applicant's response in discharging his pistol was not a reasonable response in the circumstances that he perceived them to be. The Crown case is that any reasonable person in the position of the applicant would not have considered that it was necessary to act in this way in order to protect himself from serious harm. 34Juries are often directed that in determining whether what an accused did was reasonable, to stand back and consider the response from an objective viewpoint. They are asked to consider what would have been a reasonable response in the circumstances as the accused perceived them to be. 35The Crown case statement (ex 10) discloses that both Constable Crews and Detective Senior Constable Roberts yelled out "Police, put down the gun." None of the Police officers had their firearms removed from their holsters. The other Police officer's were retreating to protect themselves. It is not appropriate on the basis of the Crown statement to give a detailed review of the evidence, but I am satisfied that a jury could capably find that the applicant's response in the circumstances he perceived them to be, was unreasonable. 36I do not detect any error of principle in the way in which self-defence was explained to the applicant by Mr Hanley. I now return to a discussion of the evidence. 37The applicant states in his affidavit that on his next court appearance, Mr Hanley and Mr Watson with a Vietnamese Interpreter visited him in the Court's cell complex, that he asked them: "If I enter a plea of guilty to the manslaughter charge, do you know how long I will have to serve in the prison?" The applicant said that he asked the question as he did not know what was the maximum penalty for manslaughter and they replied that they did not know. When he was brought into Court, he refused to enter a plea of guilty. 38Mr Hanley had, unsurprisingly, explained to the applicant during the conference on 26 April 2012 that he could not tell him what sentence that he would receive for manslaughter, but gave him a range of non-parole periods to which he might be sentenced. He had also explained to him that the maximum sentence for manslaughter was 25 years imprisonment. 39Mr Hanley and Mr Watson had conferred with the applicant with the assistance of Mr Duong interpreter prior to his arraignment before Latham J on 4 May 2012. The applicant withdrew his instructions during that conference and as a result appeared, unrepresented before her Honour. When he was arraigned, he pleaded not guilty to counts 1 and 2 and guilty to counts 3, 4 and 5 and the matter was adjourned to 6 July 2012. 40The indictment upon which the applicant was arraigned on that day included the offences contrary to s 7(1) Firearms Act (count 4) and s 25(1)/s 29 Drug Misuse Trafficking Act (count 5) that were included on the Form 1 on 19 July 2012. The Crown did not accept the pleas of guilty in full satisfaction of the indictment. 41Although no longer retained, Mr Hanley raised with Latham J his concerns about the pleas entered by the applicant. Mr Hanley was concerned that the plea of guilty to count 3, deprived the applicant of maintaining that he acted in self-defence in count 1 (manslaughter) and that the only issue at trial in relation to that count would be one of causation. The case was adjourned for a further call over on 6 July 2012 so that the court might be advised of the applicant's legal representation. 42Upon returning to prison, the applicant contacted Mr Ledinh who visited him at the MRRC on 6 May 2012. He signed a letter to the Commission directing the Commission to forward his file to Mr Ledinh, but received a letter from the Commission advising him that if he did not co-operate with Mr Hanley and Mr Watson and insisted on transferring the file to another solicitor, then his grant of legal aid would be terminated. After being informed of the Commission's response, Mr Ledinh told the applicant he would not be able to assist him. 43The applicant described being disappointed and feeling alone as no one would help him. He telephoned Mr Hanley and Mr Watson who said (para 25): "If I do not agree to enter a plea of guilty to manslaughter, I will be found guilty by the jury at trial with (sic) more serious offence." 44Mr Hanley and Mr Watson visited him at MRRC with the assistance of Tung Son Trinh, an interpreter, on 27 June 2012. The applicant states that they advised him to enter a plea of guilty to manslaughter and he would receive a discount on sentence for the plea. According to the applicant, they also suggested he "better" not go to trial as he would be found guilty by the jury, serve longer in prison and not be allowed a sentencing discount. He then agreed to plead guilty to the manslaughter charge and entered the pleas on 6 July 2012. 45All of the conversations between the applicant and Mr Hanley as well as the written instructions (Ex 5) were translated by the interpreter. The applicant then confirmed his original instructions and signed the document a second time as did the interpreter. Mr Watson's notes of the conference (annex F) disclose that the applicant's legal position was carefully canvassed with him on that day by Mr Hanley, that he was told that his legal advisers could only advise him, but was asked what he wanted to do, and he instructed his counsel to plead guilty. Mr Hanley insisted that the applicant confirm his written instructions which were then translated to him, after which the applicant confirmed them with his signature. 46The applicant is mistaken about the date that the pleas were entered. The court's record reveals that the pleas were entered on 19 July 2012 which accords with Mr Hanley's recollection and Mr Watson's notes. The applicant's pleas were not entered for some three weeks after he re-confirmed his instructions. He was visited by Mr Hanley and Mr Watson with Cuc Dinh, an interpreter before he was arraigned, but did not demur from his intention to plead guilty. Mr Hanley met with him in the cell complex to confirm that he wished to proceed on the basis of the signed instructions, which he confirmed. 47The applicant says in his affidavit that after being returned to prison, he was very worried and later on made a telephone call to Mr Ledinh, who visited him at the MRRC on 7 August and 3 September 2012. He said to Mr Ledinh (para 29): "I have very good reasons [to withdraw his guilty plea]. I entered a plea of guilty as I was advised that I will be allowed to discount on sentence. And that I will be found guilty by the jury if I insist to go for trial, and I will not be allowed to be discount on sentence. And that I will stay longer in the prison. All these made me confused and forced me to enter a plea of guilty to the offence that I never had any intention to commit at all." 48Mr Watson ceased to act for the applicant following receipt of a letter dated 17 August 2012 from him and a facsimile from Ledinh Lawyers dated 11 September 2012. The applicant's letter (annexure A) includes the following: "As my English skills are of below advange (sic) and I did not understand what I was pleading guilty to by your instructions. In say (sic) and doing this I am also changing my plea of guilty to not guilty as I feel that I was mislead due to my lack of understanding skills with English." 49I reject the suggestion that there was misunderstanding on the applicant's part or that he was mislead because of any disadvantage in English. In all the conferences of importance, the applicant had the benefit of translation by competent interpreters. 50There is an aspect of the applicant's oral evidence that it is convenient to mention. He was questioned by Mr Crown as to why he had entered a plea of guilty to manslaughter on 19 July 2012. On this topic his evidence included the following (T 27 18-30): "Q. Why did you enter a plea of guilty to manslaughter? A. INTERPRETER: After my request for funding to hire the best solicitor was refused I came to the conclusion that I entered a plea of guilty even though I was not quite aware of what the charge was or how serious or the degree of seriousness of the charge. Q. I suggest to you that you entered a plea of guilty to manslaughter because you thought that you would get a lower sentence for doing that? A. INTERPRETER: At that time I was feeling like I was all by myself, no one was defending me, so I came to the decision of pleading guilty even though I'm not quite sure by doing that is there any discount or lessening of my degree of seriousness of the charge." 51The applicant's testimony that as the Commission had refused to transfer his file to Mr Ledinh, that he felt he was by himself, that no one was defending him, he decided to plead guilty, lacks credibility. He had the benefit of senior counsel and a solicitor with many years experience in criminal law. Both Mr Hanley and Mr Watson had informed him that they were prepared to do their best for him if he decided to plead not guilty. 52I do not accept that the applicant was advised at any time by Mr Hanley or Mr Watson that if he insisted on going to trial, the jury would certainly find him guilty. 53I find that the applicant's pleas were freely and voluntarily made, without any undue or improper pressure by his legal representatives. In R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233, Ipp AJA said at [93] - [94]: "I appreciate that in Maxwell v The Queen Dawson and McHugh JJ said at 511 that even the "desire to gain a technical advantage" may result in a plea of guilty not being an admission of guilt. With respect, however, I do not understand a "technical advantage" to apply to or include the situation where an accused person, without any undue or improper pressure, freely and voluntarily makes a decision to plead guilty to one offence, not because he believes that he is guilty, but because he thinks that this is a good way of avoiding the risk of being found guilty of other offences, or of receiving a reduced sentence, or of protecting his evidence with a view to bringing an appeal at a later stage. As long as the decision to plead guilty was made freely and voluntarily, the decision stands. This is the necessary corollary of the principle laid down in Maxwell v The Queen at 511 that if the plea of guilty is genuine, and the accused person knows what he his doing, he may, for "whatever reason" insist on pleading guilty." (emphasis in original) 54During submissions, Mr Ledinh referred to the issue of causation and submitted that it is a matter to be decided by a jury. 55There is no doubt that the issue of causation of Constable Crew's death was a central consideration in determining whether to enter a guilty plea. The bullet fired by the applicant had struck the deceased in the left upper arm. The bullet fired by Detective Senior Constable Roberts had struck the deceased to the right side of the neck. It was from this injury that the deceased had died. 56In the opinion of Dr Tibbits, an acoustics expert, the first shot was fired by the applicant's pistol. This opinion appears to be supported by the evidence of Tan Chung, and of Detective Senior Constable Roberts. 57It is the Crown case that the act of the applicant which caused the death of Constable Crews was the presentation of the pistol and the pointing of it in the direction of the police. The Crown case is that this inevitably led to the Police drawing their own firearms and firing at the applicant, and that in the confines of an underground garage the applicant foresaw the reasonable possibility that someone might inadvertently be shot during the ensuing fight causing their death. 58Mr Hanley explained to the applicant on a number of occasions the basis upon which he may be legally responsible for the crime of manslaughter. During his oral testimony, Mr Hanley gave the following evidence (T45 46-50; T46 1-14): Q. Would you explain to the Court, in essence, how you explained that to him? A. Well, in relation to the manslaughter charge which was the most difficult one for him to comprehend, I had discussions with him in English and also with him an interpreter on a couple of occasions, explained to him that the basis of his culpability that the Crown were alleging is that because he had fired the gun and by then, when we were talking about him entering a plea, there is evidence that he fired first, that it must have been expectation that he would have returned there would have been returned fire possibly and people could have been killed or seriously injured. I tried to explain to him in relatively simple terms there was an English case called Pagett that seemed to be accepted here that where a police officer returning fire in the lawful execution of his duty and in selfdefence of himself or others, there would be no break in the causation. Because I understood that a difficulty that not only Mr Nguyen but even lawyers have is why he should be responsible and it was difficult at times to get that across to him but I was attempting to do it in a fairly simple fashion. 59I do not detect any error in principle in the advice given by Mr Hanley. 60It is a basic tenet of causation in homicide that an accused's conduct need not be the sole, direct or immediate cause of death. It is enough that the applicant's conduct contributed significantly to the death of the victim: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 per Brennan J at p 398; R v Pagett (1983) 76 Cr App R 279 at p 288. Where the death is not caused directly by the conduct of the accused but by something done by a third person, there may be a question whether the chain of causation has been broken. However, where the act of Detective Senior Constable Roberts in discharging his firearm was performed in the execution of his duty and in defence of himself and others, it is unlikely that act would operate as a "novus actus interveniens": Pagett at [289]-[290]. 61The questions of causation and foreseeability would ultimately be for a jury to decide. These were matters that were explained clearly to the applicant by Mr Hanley for him to assess in deciding how to plead. 62It is plain that the applicant had difficulty accepting that he was responsible for the deceased's death, but I am satisfied that he understood the careful explanations that had been given to him by Mr Hanley and having weighed the competing considerations, entered his pleas of guilty on 19 July 2012. 63There is ample evidence on the Crown case statement that supports the charge of wounding with intent to cause grievous bodily harm contrary to s 33(1)(a) Crimes Act. 64The Crown's concession that it was not in a position to disprove that at the time of presenting his firearm, the applicant considered that it was necessary to do what he did in order to defend himself in a situation where he thought that the men approaching him may well be people involved in the drug trade who were trying to "rip him off", was significantly to the applicant's advantage. 65Furthermore, the acceptance by the Crown of the pleas in full satisfaction of the indictment and the inclusion of counts 4 and 5 on the Form 1 are matters in his favour on sentence. The offence contrary to s 29 Crimes Act that was not proceeded with, carries with it a maximum penalty of 25 years imprisonment with a standard non-parole period of 10 years. 66I find that the applicant did not enter his pleas as result of mistake or misunderstanding. He did so intentionally with appreciation of the charges and with full knowledge of all of the facts. The fact that he subsequently changed his mind is insufficient to permit him to withdraw his pleas. I do not permit the applicant to withdraw the pleas of guilty that he entered on 19 July 2012. Orders 67Accordingly, I make the following orders: