R v Tran [2003] ACTSC 53

3. The requirements for trial by judge alone are set out in s 68C of the Supreme Court Act 1933 (ACT). Sitting as a Judge alone I may make any finding that could have been made by a jury as to the guilt of an accused person and any such finding has the same effect as a verdict of a jury. I must include in my judgment the principles of law that I apply and the findings of fact upon which I rely. Where a warning would have been required to be given to a jury were the proceedings before that body, I am to take the warning into account when considering my verdict.

4. I direct myself in accordance with the law in relation to all of the matters which a jury would ordinarily be directed before retiring to consider its verdict. The accused is entitled to have a fair trial according to law. As the tribunal of fact, as well as the tribunal of law, it is my function to find the facts and to draw inferences from them as well as to apply the law to those proven facts. I must deliver my verdict according to the evidence. The burden of proving the charge lies wholly on the prosecution and no burden at all lies upon the accused. If the accused makes or points to an explanation which is consistent with innocence, the accused does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The accused is presumed to be innocent until at the conclusion of the hearing the evidence establishes guilt. The standard of proof lies upon the prosecution to prove each and every element of the offence beyond reasonable doubt. Where, in this judgment, I make a finding of a particular fact, or speak of being satisfied of any matter, I reach that finding having been satisfied beyond reasonable doubt.

5. It is for the prosecution to prove each and every element of the charge beyond reasonable doubt before a verdict of guilty can be returned. If I am satisfied that there may be an explanation consistent with the innocence of the accused in respect of any charge, or I am unsure where the truth lies, then in those circumstances, I must find the charge has not been proved to the level of satisfaction required by the law and must acquit.

6. The crimes here charged are those of murder and intentional wounding. The acts from which these charges arise are not in contention. The intention of the accused and the circumstances in which the acts took place are. In this case there is no issue as to the accused stabbing Thien Thanh Phan with a knife and that death resulted from that stabbing. It is also not in contention that in the same incident the accused inflicted, with a knife, a wound on Rong Feng Su. The issue on this trial relates to the circumstances and intent of the accused with respect to these acts.

7. The issue raised is that of self defence. Because of the onus of proof which the prosecution bears, that issue must be negatived by the prosecution. The principles to be applied have been clearly set out by the High Court in Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; (1987) 162 CLR 645 in the joint judgment of Wilson, Dawson and Toohey JJ at 662:

A killing which is done in self-defence is done with justification or excuse and is not unlawful, though it be done with intent to kill or do grievous bodily harm. However, a person who kills with the intention of killing or of doing serious bodily harm can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response. A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm. If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. That is to say, the killing will have been without justification or excuse and it will be for the jury to determine how it must be regarded. If it was done with intent to kill or to do grievous bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder. In the absence of such an intent it will be manslaughter: see Viro (1978) 141 CLR at 101.

8. As to provocation, s 13 of the Crimes Act 1900 (ACT) provides:

(a) it appears that the act or omission causing death occurred under provocation; and

(b) apart from this subsection and the provocation, the jury would have found the accused guilty of murder;

the jury shall acquit the accused of murder and find him or her guilty of manslaughter.

(2) For subsection (1), an act or omission causing death shall be taken to have occurred under provocation if -

(a) the act or omission was the result of the accused's loss of self-control induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused; and

(b) the conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control -

(i) as to have formed an intent to kill the deceased; or

(ii) as to be recklessly indifferent to the probability of causing the deceased's death;

whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time.

(3) For the purpose of determining whether an act or omission causing death occurred under provocation, there is no rule of law that provocation is negatived if -

(a) there was not a reasonable proportion between the act or omission causing death and the conduct of the deceased that induced the act or omission; or

(b) the act or omission causing death did not occur suddenly; or

(c) the act or omission causing death occurred with any intent to take life or inflict grievous bodily harm.

(4) If, on a trial for murder, there is evidence that the act or omission causing death occurred under provocation, the onus of proving beyond reasonable doubt that the act or omission did not occur under provocation lies on the prosecution.

(5) This section does not exclude or limit any defence to a charge of murder.

9. The prosecution case substantially relied upon the evidence of Robert Saga, who was in company with the accused at the time of the incident and was hoping to be supplied with heroin by the accused. Jeffrey Dalton was a passerby who from some distance away saw the incident. Saron Youn was a witness to an earlier confrontation between the accused and the deceased. Prudence Karp saw what also might have been an earlier confrontation between the accused and the deceased. Also called were Rong Feng Su who was the victim in respect of the second count and Phat Tan Nguyen, who pleaded guilty to a traffickable quantity of heroin found in the pocket of a jacket owned by him in the car owned by victim Su. Another witness, Samuel Clements, was asked by the accused some time after the incident to drive the accused to Sydney in exchange for drugs. The accused sought medical treatment in Sydney for cuts to his hands. Near the end of the prosecution case, the prosecution called Brendan Dickson who, together with Robert Saga, was accompanying the accused in the hope of being supplied with heroin and was also present when the incident occurred. Mr Dickson had not previously given evidence either at the committal proceedings or in the first trial. In addition, the prosecution called Dr Peter Herdson, who was a Professor of Pathology and Director of ACT Pathology at the time.

10. At the time of this incident and prior to it, the accused had been in the company of two associates. One of these associates, Khoa Nguyen, who gave evidence in the first trial, the prosecution claimed was unavailable to give evidence in this trial. The prosecution sought to tender in this trial evidence tendered in the former trial because of Mr Nguyen's unavailability. After argument, I permitted the tender. The other associate, Binh Ho, was also said to be unavailable for this trial. In Mr Ho's case it was said that by reason of a mental illness which occurred subsequent to the events forming part of these charges, he was not competent to give evidence and was to be taken as not being available. It was sought to tender the evidence that Mr Ho had given in the first trial. I did not receive his evidence.

11. The prosecution also put in evidence the accused's interview with the police which took place on 27 April 1999. By consent, I also received evidence from the previous trial primarily of the medical and forensic evidence concerning the injuries to the participants, their clothing and the results of the search of the accused's premises.

12. I commented earlier that the verdict that I deliver in this case must be according to the evidence. It is particularly important that it be so because the evidence that was led in this case differs very significantly from that led in the first trial both as to quality and content. The appeal against the verdict in the first trial resulted in the conviction on both the charges being set aside on the basis of an unsustainable theory improperly and unfairly pressed by the prosecutor. The Federal Court was concerned that their order on appeal for a retrial did not offer the prosecution a fresh opportunity to make out a case which was not made at the first trial. This has resulted in a considerable amount of material, which was before the jury in the first trial not being before me on this retrial. I am also conscious that I am deciding this matter on what the witnesses have said before me on this retrial and not what might have been their evidence on the earlier trial. In addition, one witness, Brendan Dickson, was called on this trial who had not been called in the earlier trial.

The evidence of Khoa Nguyen: Unavailability of witness

13. As I have said, the prosecution sought to adduce the evidence given by Khoa Nguyen at the first trial in this matter on the basis that s 65 of the Evidence Act 1995 (Cth) (the Evidence Act) permits that evidence to be given if Mr Nguyen is not available to give evidence about those facts in this trial.

14. The issue turns on whether in terms of cl 4 of Part 2 of the Dictionary to the Evidence Act Mr Nguyen can be taken to be not available to give evidence. The relevant part of that provision provides:

(1) For the purposes of this Act, a person is taken not to be available to give evidence about a fact if:

(e) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure his or her attendance, but without success; or

(f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success.

15. Mr Nguyen is an associate to the accused and on the day of the incident resulting in these charges had been selling heroin in company with another associate, Binh Van Ho, under the accused's direction. After an earlier confrontation with the eventual victim, Thien Phanh, and his associates, Mr Nguyen returned to the accused's flat when they discussed the confrontation that both had experienced. At the first trial and after a voir dire and considerable argument, Mr Nguyen was permitted to give this evidence:

Dung [the accused] said that he was going to buy a knife to keep with him on his body so that if anything happened he could defend himself and protect himself.

16. It is this association of the accused with remarks about a knife that the prosecution essentially wished to adduce together with the other aspect of Mr Nguyen's evidence concerning the dealing in heroin on behalf of the accused in which the witness was involved. The adducing of this latter portion of evidence was not seriously challenged on behalf of the accused.

17. Mr Everson, who appeared as counsel for the accused, argued that the prosecution had not satisfied the requirements of the Evidence Act as to the availability of Mr Nguyen to give evidence. In evidence on the voir dire the Australian Federal Police officer who was managing this case, Detective Superintendent Johnsen, gave evidence that although Mr Nguyen had been a co-operative witness at the first trial, he became aware that Mr Nguyen did not intend to attend the retrial. He maintained contact with the proposed witness' known address where he spoke to Mr Nguyen's brother and sister-in-law by phone on a number of occasions but was unable to speak to Mr Nguyen. A witness summons was issued three weeks before the trial and various conversations by telephone took place with persons at his known address after that time. Mr Nguyen failed to make any contact. Detective Superintendent Johnsen adopted the approach that he did as being, in his view, the best way of seeking to ensure that Mr Nguyen attended court to be a witness in this trial.

18. Having regard to Detective Superintendent Johnsen's evidence and the fact that no steps were taken to attempt service of the subpoena, I think that the prosecution are confined to the ground in cl 4(1)(e) of the provision concerning unavailability set out above. That is, that the prosecution must show that they have taken all reasonable steps to secure Mr Nguyen's attendance but without success. In cross-examination on the voir dire, Mr Everson suggested to Detective Superintendent Johnsen that no check of the witness' driver's licence had been undertaken and no actual attempt to serve a subpoena had been undertaken.

19. At a later stage, after this cross-examination, Detective Superintendent Johnsen returned to the witness box and gave evidence about enquiries that had since been made concerning Mr Nguyen's driver's licence and the fact that he had finally made contact with the witness and had made arrangements for him to attend. Notwithstanding, the witness did not attend and it was clear on Detective Superintendent Johnsen's evidence that the witness was determined to avoid making himself available to give evidence. All this is somewhat unsatisfactory and one can wonder at the wisdom of Detective Superintendent Johnsen's original tactic to wait and see and the fact that no attempts at service of the witness subpoena were made. However, it was not put that to approach the matter in the way that it had been approached was unreasonable. What was said was that I should have regard to the failure of the police to immediately issue a subpoena to the witness once the trial date was fixed. Detective Superintendent Johnsen's evidence was that as he became aware that Mr Nguyen might be an unwilling witness, he held off taking out a subpoena until three weeks before the trial date and attempted to ascertain the witness' position by telephoning the premises where the witness resided. I do not think that in those circumstances it can be said to be unreasonable to not immediately issue a subpoena and to ensure that the subpoena was served even though such a step may have been a reasonable step to have taken. Essentially, in circumstances like that, I take the requirement for unavailability to be one to show that "all reasonable steps have been taken" as a prospective requirement. That is, whether there is any reasonable step still left to be undertaken. On that basis what might have been said to be a failure to take a step which is said to be a reasonable step will not mean that all reasonable steps have not been taken if the opportunity for taking that step has passed. In circumstances like the present what is important is that there is no reasonable step still to be taken and, in this case, none was suggested. Accordingly I was satisfied that all reasonable steps had been taken to secure the attendance of Mr Nguyen as a witness.

20. The prosecution did not give notice of its intention to adduce this evidence until the commencement of the hearing and it may be argued that reasonable notice was not given. Notwithstanding that, s 67(4) of the Evidence Act permits me to give a direction which would permit the receipt in evidence in these proceedings of the evidence given by Mr Nguyen in the first trial of this matter. The effect is that the hearsay rule would not apply to that evidence.

21. It was then put by Mr Everson that I should not give such a direction to permit Mr Nguyen's previous evidence to be tendered and in particular it was suggested that s 192(2)(b) of the Evidence Act required considerations of fairness to the accused to be taken into account in respect of such a direction as well as the exercising a general discretion to exclude such evidence having regard to the provisions of ss 135-137 of the Evidence Act.

22. In the previous trial of this matter the accused gave evidence. In the course of that evidence what had been said by some of the witnesses concerning conversations that had taken place between the accused either Mr Nguyen or Mr Ho were put to the accused in examination-in-chief. In this trial the prosecution proposed to and did in fact put in evidence, as they are entitled to do, what the accused's response was to these matters. The evidence was to this effect:

Now, at the apartment did you tell them about the confrontation that you'd had?--- Yeah, after they told me that they had a confrontation, I also told them about my confrontation that I had.

Now, you've heard of a related conversation involving knives and you saying, "I'll have to get a knife" or "I will get a knife" or "I should get a knife", whatever. Was there any conversation involving knives? --- I don't recall saying I might buy a knife, but while we were in the house I remember a conversation about a knife and it was from Binh. And like, he was pretty angry at the time and he said that if he had a knife he would do those guys then and there when he was harassed by them.

Was this something you took seriously or was this just big noting himself? --- I think he was just trying to show off, like, to be like a hero, like try to be tough and that. And I might have - - -

Is it possible you responded in the same sort of a way? --- Yeah, I might have said something along those lines, but I can't be too sure.

Well, if you said something along those lines was it because you meant that you were going to buy a knife or was it just sort of showing that you as tough as Binh? --- Probably just showing off, to be tough I guess.

23. In light of this, I consider that the evidence sought to be admitted has significant probative value as far as the accused is concerned as it could be used to confirm that if the accused had a knife, he had it only for the purpose of self-defence. It would seem to me that the evidence goes to the accused's intention in a way favourable to him. It is true that the admission of this evidence also admits a remark made by the accused about cowardice in avoiding a confrontation with the deceased but that does not affect its probative value. In the trial before me there was no evidence that the accused had acted on the intention expressed to in fact buy a knife. I am not satisfied that any prejudical effect would be outweighed by the probative value of the evidence. The prosecution for its part would wish to use Mr Nguyen's evidence to show that there was something sinister in the accused's reference to a knife. Given that the accused was examined in the first trial on this aspect and the prosecution can put that evidence before me on this trial, it is difficult to see how the accused is prejudiced. I ruled that the evidence given by Mr Nguyen at the first trial could be admitted as evidence in this trial.

Evidence of Binh Ho: Unavailability by reason of competence

24. Evidence was given at the first trial of another associate of the accused, Binh Ho. In Mr Ho's case the prosecution sought to rely upon the ground of unavailability provided in cl 4(1)(b) of Part 2 of the Dictionary to the Evidence Act. That provision provides that a person is taken not to be available to give evidence about a fact if:

the person is, for any reason other than the application of section 16 (Competence and compellability: judges and jurors), not competent to give evidence about the fact ...

25. What might constitute competence in the context of this application is that set out in s 13(3) of the Evidence Act, which provides:

A person who is incapable of giving a rational reply to a question about a fact is not competent to give evidence about the fact, but may be competent to give evidence about other facts.

26. In support of this application, the prosecution tendered a report of Dr Diana Tracy, a consultant psychiatrist who is currently treating Mr Ho in the Brian Hennessy Rehabilitation Centre. In 2002 Mr Ho was diagnosed as having schizophrenia. He has been treated and he is currently on medication and undergoing psychiatric rehabilitation. In her report of 13 June 2003, Dr Tracy's opinion was:

1. Mr Ho is capable of understanding that in giving evidence he is under an obligation to give truthful evidence.

2. While I believe that Mr Ho would do his very best to give a rational reply in answer to questions, it is impossible to know whether the intervening periods of psychosis may influence his recall of the facts of the case.

3. Mr Ho is capable of hearing and understanding and communicating a reply to a question about a fact, although if it were decided that he should be compelled to appear as a witness, I would strongly suggest the use of an interpreter, when I interviewed Mr Ho specifically about these matters although he was clearly willing to co-operate as fully as possible, he became extremely anxious about the process and I believe that the stress of attending court, being questioned and cross-examined may well be detrimental to his currently stable mental state.

27. Dr Tracy gave evidence by telephone in which she was pressed to say whether it would be more probable than not that the matter contained in point 2 of her opinion would occur; that is, whether the intervening periods of psychosis undergone by Mr Ho may influence his recall of the facts of the case. Eventually in re-examination when pressed, she expressed a view that the proposition would be so, "more likely than not". This was clearly not a concept with which she was comfortable in her earlier evidence and she preferred to refer to possibilities without quantification. In the preceding answer in re-examination which she gave in discussing matters as possibilities, she eschewed giving an odds ratio of either 60 per cent likely or 40 per cent likely. I do not criticise her for this as she is used to dealing in possibilities and the legal concept of probability is not one to which she is required to turn her attention. For this reason alone her evidence provides a tenuous basis upon which to conclude on the balance of probabilities that Mr Ho is not capable of giving a rational reply to a question. Her evidence may directly go to the fact that a reply given by Mr Ho might or may be unreliable, but that is not the concern of this part of the Evidence Act.

28. On Dr Tracy's evidence, even if it could be said to be probable (rather than possible) that the answer to any question may be affected by the intervening period of psychosis influencing Mr Ho's recall, that is not necessarily something that affects the rationality of the reply. It seems to me that in ordinary terminology rationality is that which is agreeable to reason, reasonable or sensible. The fact that the person's recall is affected by some supervening event might affect its reliability or trustworthiness but it does not follow that it affects its rationality.

29. That view would seem to be supported by the Australian Law Reform Commission in its Report on Evidence, ALRC Report No 26 Vol 1 par 239, which suggest that for a witness to be competent he (sic) must have sufficient ability to be:

- informative; he must have the ability to be appropriately informative - neither too precise or too general otherwise the listener will be misled;

- truthful; he must have an understanding of the obligation to give truthful answers and the ability to give them;

- relevant; he must have the ability to give answers that relate to the questions;

- perspicuous; he must have the ability to express himself with sufficient clarity

30. In discussing the factors which interfere with competency at par 242 of the Report, where mental disorders are discussed which might affect an individual's ability, the Commission refers to the fact that "sound memory, for example, will be disturbed in certain mental illnesses, whilst in others the ability to draw logical or conversational inferences will be impaired". I do not regard even those circumstances as having been made out on the report or on the evidence given by Dr Tracy.

31. For these reasons I ruled that the evidence given by Mr Ho in the first trial should not be admitted on this trial.

32. As general background to the events which formed the subject of this charge, from the evidence put before me, I can deduce that the accused was a street level heroin dealer. He lived in a flat near Civic, the city centre, and with the assistance of his two associates Khoa Nguyen and Binh Van Ho. He sold quantities of heroin to his customers. One of his customers was Mr Saga. Mr Saga was a heroin user and the accused at the time was his regular supplier. He knew the accused as "Jay". On 6 April 1999 he was staying in Narrabundah with Brendan Dickson. Mr Dickson knew the accused as "James". On that day they both went into the city and phoned the accused from a telephone box near Garema Place in order to arrange a supply of heroin.

33. That same morning a group of young persons had driven from Sydney to Canberra. Some of the group were required to attend proceedings that day in the Canberra Children's Court. Included in the group were the deceased, Thien Phan as well as Rong Feng Su, the victim in respect of the second charge. Later, at about 11 am that day a number of them were at an amusement centre called Happy Days, being premises on Bunda Street, Civic. Shortly afterwards Mr Nguyen and Mr Ho arrived at Happy Days. This was a location from which Mr Nguyen had regularly sold heroin. They were approached by amongst others Mr Phan and Mr Su. They were asked, in English, whether they "sold in the city". Mr Nguyen described the questioning as "unfriendly". Mr Nguyen and Mr Ho left and Mr Nguyen explained to Mr Ho, in Vietnamese, what had occurred, having been told that Mr Ho wanted to return to explain that he did not deal in drugs.

34. Later, near a food outlet not far from the amusement centre, Mr Nguyen and Mr Ho came across the same four or five people that they had encountered in Happy Days. A further conversation took place, this time in Vietnamese about drug dealing, specifically Mr Ho was accused of drug dealing, which he denied. Mr Nguyen and Mr Ho left and went to the accused's apartment, which was nearby.

35. At about 1.15 pm on that day there was a confrontation between the deceased and the accused. That occurred in the Happy Days amusement parlour. It is recorded on a surveillance video and was the subject of evidence by Mr Youn, who was present as an associate of the deceased and gave evidence of a conversation that "didn't seem friendly" and was accompanied by Mr Phan pushing at the accused. The confrontation is described by the accused in his interview with the police in this way:

... I just went there to look for a friend of mine - a friend of mine and like as soon as I got in there this, um - this guy just come up to me, you know, and - and started like, um, harassing me, you know, um, because he thought that, um, I was stealing something. He asked me did I deal. I go, "No". You know, and then he goes, "Don't lie to me, you know". And then, um, he started, um, putting in his hand, ah, on my body, um, started pointing at me and then I go - oh, "Can I go now?" You know, and then he said, "Well, if you want to go, go ahead, you know. If you walk - as soon as you walk out that door, "I'll stab you if you go outside". You know, so at that time I was pretty scared. ...

36. That confrontation was confirmed, somewhat reluctantly by Mr Youn after he had viewed the surveillance video.

37. On this evidence I am asked to infer that there was a clear threat that if the accused continued dealing in heroin he was likely to be the subject of serious injury. In regard to the accused's statement in his record of interview even taken with the evidence given by Mr Youn, I have some difficulty in drawing such a clear inference. However, in order to make good the submissions that Mr Refshauge SC, the Director of Public Prosecutions, asked me to draw, I must make this an inevitable inference from the confrontations that occurred between Mr Tran's associates and Mr Tran with the deceased and his associates. Even if the inference were to be drawn, it does not follow that the accused reacted to it in the manner that the prosecution suggested that he did.

38. The aspect of the prosecution case which was heavily relied upon is the fact that Mr Tran had a knife. The topic of the knife was first raised in conversation between the accused and Mr Nguyen which occurred after Mr Nguyen and Mr Ho returned to the accused's flat and told him of their confrontations with the deceased and his group. Mr Nguyen's evidence was to this effect:

The interpreter: Dung said he had also just met those guys.

The interpreter: Dung said that he quarrelled with those guys and he almost had a fight with them.

The interpreter: Dung said that those guys wanted to beat him up and he was alone and there were four of them. He said that he would only fight one to one.

39. Though it was not Mr Nguyen's evidence in the first portion of his evidence-in-chief on the first trial, he eventually said that at the time he left the accused's flat, the accused said to him, "He might go and buy a knife to keep it with his body in order to protect himself". He said this in the course of a voir dire examination. Ultimately he was allowed in the first trial to give this evidence through the interpreter:

Dung said that he was going to buy a knife to keep with him on his body so that if anything happened he could defend himself or protect himself.

40. There was in the first trial debate about whether what the accused was said to have said was what the accused said he might do or was a statement of intention. I think the important aspect of this evidence was the association of a knife which the accused relates to his desire to protect himself rather than to use it offensively. Mr Refshauge sought to add a sinister connotation to this aspect by an earlier comment made by Mr Nguyen in his evidence on the first trial when he said that having observed a number of Asians outside Happy Days Mr Nguyen telephoned the accused because he was afraid that he might "bump into those people". He gave this evidence:

The Interpreter: I told Dung that there are many Asians standing at Happy Days and I told him to avoid them.

The Interpreter: He said that we were a coward - cowardly.

The accused's intention in being in the car park

41. It is those remarks and the possession of the knife which founded the prosecution's submission that the accused formed an intention to confront the deceased and his associates. The prosecution would further advance this submission by suggesting that the accused arranged a blatant drug transaction in view of the group that had gathered at Happy Days for the purposes of inflaming the situation and provoking a confrontation. It was suggested that the accused arranged a drug deal in view of the deceased to challenge him and that such a circumstance put him into the category of persons referred to by Priestley JA giving the judgment of the New South Wales Court of Criminal Appeal in R v Nguyen (1995) 36 NSWLR 397 in commenting upon the proposition put by Wilson, Dawson and Toohey JJ in Zecevic v DPP (supra) at 664:

... A person may not create a continuing situation of emergency and provoke a lawful attack upon himself and yet claim upon reasonable grounds the right to defend himself against that attack.

42. In Nguyen, Priestley JA considered that proposition embraced a fight where someone is challenged and the challenge is accepted. In that way it was said that the accused in this case forced, in the prosecutor's words, "a showdown".

43. I do not accept that this is a inference that I can draw from the facts. I am not able to say that arrangements were made in other than the usual way between the accused and Mr Saga by way of a telephone call for the purposes of setting up a drug deal. The meeting was to take place in the Bunda Street car park, a designated area some distance from the Happy Days amusement parlour. The evidence does not clearly show that the accused specifically picked the location. In any event, the location, it would appear, was part of the accused's usual method of operation. I am not able to infer that the only reason for this location to be chosen was to provide a provocative scenario which would induce the deceased, who had earlier threatened the accused to pursue him. Nor can I be satisfied that such was the accused's wish much less his intention.

44. It was also suggested that because the accused lied to the police in his record of interview about his meeting with Mr Saga that this called for a sinister connotation to be placed upon them meeting where they did. More particularly that it implied that the accused had set up the meeting in a place where it would provoke the deceased to take some action. I reject this proposition as quite untenable.

45. Mr Saga gave evidence that he met the accused with Mr Dickson in the middle of the Bunda Street car park and commenced to walk across the car park towards Donaldson Street. Mr Dickson, in his evidence, gave the reason for going in that direction, as getting out of the car park so that they could "score". I do not say that the accused was not taking some sort of risk in behaving as he did, but I am not prepared to regard his actions as a form of readiness to provoke a confrontation with the deceased.

46. Both Mr Saga and Mr Dickson (albeit only when his prior inconsistent statement was put to him) referred to the possession of a knife by the accused, which was shown to them when they and the accused were crossing the street adjacent to the outer limits of the car park. The accused, on Mr Saga's evidence, took a knife out of a packet and transferred the knife, which was a large folded pocket knife, to his pocket. I can appreciate that at that stage the accused may have been concerned for his safety enough to do something to make the knife available to him. I do not, however, necessarily infer that what he did had the connotation that the prosecution would wish me to draw about it. It is equally open, I think, that the accused thought that he was vulnerable and was taking an ordinary step to ensure his protection. There was no suggestion that he was producing the knife with an attitude of "I'll show them". Rather it was taking a pocket knife out of a box in a situation where he might well be apprehensive about his safety.

47. The accused denied in his record of interview that he had a knife, and said that the knife used in the fight was in the possession of the deceased. I am not able to accept this. I accept the evidence of Mr Saga that the accused transferred a knife to his pocket as they were crossing the road. His evidence is supported by what Mr Dickson said to the police shortly after the incident. But, what I am not prepared to accept, is that the accused used the knife in the course of a confrontation that he had manufactured.

48. After the accused and his two companions had crossed the road from the car park and proceeded up Donaldson Street, the accused was attacked from behind by the deceased and Mr Su. The impact of that attack pushed him forward. These people attacked him "with their hands and their feet and their legs, punching and kicking". The accused tried to stop that by palming them off, arguing with them. In the evidence of Mr Saga, the accused was trying to defend himself, trying to block what was happening to him. As the fight got, in his words, "heavier and heavier" a knife appeared and it was a knife wielded by the accused. Saga described the contact of the deceased with the knife which caused the deceased to go down. He described it in this way:

Yes? --- Right after the first contact with the knife - I think it was the second contact and then he went down.

Right. So he fell over twice? --- Yes, I think he ...

Is that what you're saying?--- Yes, I think he did, or once, but still when he's on the ground the bloke was kicking Jay [the accused].

And what was the accused doing then? --- He was standing up copping the kicks.

And how was he doing that? --- With his arms, trying to push his legs away.

Was he doing anything else? Defendant? --- Yes - he was trying to defend [himself against] the bloke on the ground kicking him and the other Asian, the one in the tracksuit pants hitting him as well. I think he was punching him.

49. Mr Su, the victim of the stabbing in the second count on the indictment, of course also witnessed the event. However, his evidence was only that he went on a "walk" with Mr Phan, the deceased, that there was a fight with Mr Phan and "the other guys", that he tried to separate them and that he felt pain from his back. I do not accept that he had no part in the incident other than to intervene to separate the accused and the deceased. I consider that he was a willing participant in the attack. The important aspect of his evidence is that it was after Mr Phan fell to the ground that he felt the wound that he sustained. He ran off back in the direction of the Happy Days amusement parlour.

50. Apart from the evidence of Mr Dickson, which I shall deal with in a moment, the only other evidence of the incident is that of a passerby, Mr Dalton. He was on the car park side of Cooyong Street, some distance from where he saw a group of people on the grass plantation in Donaldson Street, adjacent to the church. He saw two men on the ground and the man on the top moving his arm up and down quite vigorously. His evidence would not seem to take the matter any further as he agreed that at the committal hearing in respect of this matter, he had said that the man who he thought had been pursued was the man underneath. His description of the clothing of the man when he described as on top of the other is also of no real assistance.

51. On all of this evidence, I am not satisfied that the accused did not act in self-defence. The nature of the attack upon him, the description of his actions and the use of a knife in such a situation of a ferocious karate style attack irrespective of whether the knife was produced by him on his assailant, all amount in my view to reasonable self-defence in the circumstances. The question is whether the evidence given by Mr Dickson affects this conclusion.

52. Mr Dickson was unexpectedly called by the prosecution at the end of the prosecution case. He had not given evidence either at the committal or at the first trial. Mr Dickson attended with Mr Saga to meet with Mr Tran for the purpose of obtaining heroin from him. He accompanied Mr Tran with Mr Saga to the point along Donaldson Street adjacent to the church. His evidence was to this effect:

And what happened then? --- Well from what I can remember, it's just sort of like fight, they went and chased James [the accused] and pushed us out of the way and - and to me it just looked like a - a fight happening and one of the blokes fell to the ground and - and the one of the other - the other fellow ran towards James [the accused] again and then he ran to his mate and then ran back down towards the car park, it was over pretty quick so ...

And when one of them fell to the ground did you see what caused that to happen? --- Not straight away, no.

Subsequently did you? --- Yes, well I saw what happened, yes.

What happened? --- Well, like he was stabbed in the chest and the other bloke was stabbed in the back.

And how did you see that? --- Well, I actually didn't see the knife enter the person or what - what happened later on I - I - I seen blood on the other fellow, there was on the ground and blood on the back of the guy that was running away.

53. Mr Dickson having given this evidence, the prosecution applied, pursuant to s 38 of the Evidence Act to cross-examine this witness about a prior inconsistent statement made by the witness. The application was made on the basis of a statement made to and recorded by the police on 11 April 1999. That statement contained a detailed description of Mr Dickson's observations of the stabbing and in particular a stabbing down on the ground. As well the prosecution sought to cross-examine Mr Dickson on his evidence that he was not shown anything by the accused when in his statement to the police he gave a detailed description of the accused taking a knife out of a box and placing the box and knife in his pocket as they were crossing the road.

54. I have given careful consideration to the circumstances which gave rise to this situation. As I mentioned, Mr Dickson was not called at either the committal or the previous trial. His appearance at this trial was at the last minute, and I accept that he was called without the prosecution having the opportunity to obtain a proof of evidence from him. I was initially a little concerned that if the prosecution had in fact obtained such a proof, then they would not have been in a position to call him or if they did in fact call him, it could be seen to be putting forward a witness for the purposes of seeking to put in evidence a prior inconsistent statement which the witness had made. Such a circumstance may well lead to a refusal of leave to cross examine such a witness as to that statement on the ground of fairness (see s 192(2)(b) of the Evidence Act). I am satisfied that what happened here can be fairly described as completely unexpected and that is a situation encompassed by s 38 (see R v Adam [1999] NSWCCA 189; (1999) 47 NSWLR 267 at 277, [98]- [99]).

55. The fact is that, unlike the position at common law with respect to hostile witnesses, the position under the Evidence Act is that the prior inconsistent statement may not only go to the witness' credit but also by operation of s 60 of the Evidence Act it becomes admissible as proof of the truth of its contents (see Adam v The Queen (2001) 207 CLR 96).

56. Leave being required, it was said that leave should be refused as it would be unfair to the accused as he has had no opportunity to test the evidence either by way of committal or by way of an inquiry before me. It was, however, recognized that sitting as a judge alone, there could be little utility in an inquiry before me and an inquiry by way of committal was no longer open. I have had regard to these matters, but, in the end, I determined that I should grant leave to permit Mr Dickson to be cross-examined on his statement to the police given on 11 April 1999. That leave was confined to the two topics identified.

57. Mr Dickson, who was then cross-examined by Mr Refshauge, admitted that he made statement to the police about a knife that he observed the accused take out of his pocket by taking the knife out of a box and putting the knife and the box back in his pocket.

58. His evidence in that regard would support Mr Saga's observations and show to be a lie to the accused's assertions in his record of interview that it was the deceased who produced the knife, that he knocked it from the deceased's hand and got possession of it. Even accepting that evidence, or put more particularly, that evidence not giving me any reason to doubt Mr Saga's account, I do not think this aspect adds much to the prosecution case.

59. In cross-examination by Mr Refshauge, Mr Dickson gave evidence, to which he did not refer in the examination-in-chief which preceded this cross-examination, of what he told the police about the events he observed when the deceased fell to the ground. That evidence was as follows:

Now you remember I asked you some questions yesterday about what happened after the stabbing where the deceased fell to the ground? --- Yes.

Do you recall that you gave some information in the same interview to police officers about that matter? --- Yes, I do.

And do you recall being asked this question, 238, "And how - whereabouts was James stabbing him?" answer, "Oh, in the front area from - to me it was always from the waist up and chest down. I mean, the shoulders down. So it was always like chest/stomach area. Um after the second two stab - like, after the first one and the guy got hit again, like, in the back, and then once the other guy came back towards him he stabbed him, I think twice - three times maybe. And that's when he's fallen over. The guy that's dead. And that's when he's fallen over, James has come over him and stabbed him again while he was on the ground. You know, I'm pretty sure he got him when he was on the ground because Gildo pulled him away and I actually was going to run. I ran towards James and when James seen me running towards him he got up", do you recall that question and answer? --- No, I don't.

Do you dispute that that was an answer you gave in response to a question by police? --- No. No, I don't dispute it.

And if you gave that answer it was true? --- I guess so, yes.

Well, you were trying to be truthful at that stage? --- Yes.

Did you tell any lies to the police on that occasion? --- No. No.

So everything you said to them was true? --- Yes.

And do you dispute that that was the answer you gave? --- I just can't remember saying that.

- - - but do you dispute that that was the answer you gave? --- No, I don't.

- - - where you gave that answer? You accept that that was the answer you gave? --- Yes.

And you were asked, "And when he stabbed him you say that the guy that has died, when James stabbed him when he was on the ground, how was he holding the knife then? Was he holding it the same way?" and you said, "No, like, you know", do you recall that question and answer? --- No, I don't.

Do you accept that that was a question and answer in the interview? --- Yes.

And do you accept that it was a truthful answer? --- Yes.

And you were asked, "So he's changed - he's changed his grip?" and the answer was, "He's changed the grip", do you recall that question and answer? --- No, I don't.

And do you accept if you said "He's changed the grip" that was true? --- Yes.

And you were asked "And he stabbed him", and you said "Like stabbing down towards the ground", do you recall that question and answer? --- No, I don't.

Do you accept that that was said by Constable Hulbert and by you? --- Yes.

And so far as it was what you said it was true? --- Yes.

And you were asked "And how was James standing?" and you answered "Like sort of bent over, like nearly one knee touching the ground, you know what I mean, sort of like a full ..." - and there was something said that was not picked up by the tape "... body over", do you recall that question and answer? ---No, I don't.

And do you accept that so far as yo said it, it was true? --- Yes.

Question 243. "M'mm? --- Like he was sort of crouching down with one knee nearly hitting the ground I'm not too sure if he actually hit him properly when he was on the ground but I know the second two blows had got him good because I heard the ooh like you know, like some - something had gone in through him", do you recall that? --- No.

60. This is an account of the events which is at odds with the evidence given by Mr Saga. It is contrary to the account that the accused was stabbed in the chest and fell down but continued to kick at the accused. On Mr Saga's evidence the fatal blow was to the chest and, by all accounts, a forceful blow which brought the accused down. The post mortem examination conduced by Dr Herdson confirmed the major incisive wound "to the right of the midline of the sternum at about the level of the nipples ...". The other incisive wounds were to the lower part of the body consistent with Mr Saga's account that the accused was "trying to defend [from] the bloke on the ground kicking him".

61. There are good reasons to question the reliability of this aspect of the evidence given by Mr Dickson which has effect as evidence of the facts stated only because of the provisions of s 60 of the Evidence Act. He professes to not remembering saying it to the police. His sworn evidence in examination-in-chief is to the contrary of what he said to the police and is quite contradictory. He was asked in cross-examination by Mr Everson:

Yesterday, you made no mention of seeing any knife until, as I understand your evidence, after the fight had come to an end? --- Yes.

And were you telling the truth yesterday? --- Yes.

Again another inexplicable later contradictory statement.

62. I also do not doubt that Mr Dickson had a concern to give his evidence so that he might benefit from police assistance in respect of some court matters pending in this jurisdiction. That is a circumstance which causes me to approach his evidence with caution. Before he spoke to the police he said that he had heard "so many stories going around". This, too, is a matter which affects the credence I might place on what he told the police. I am satisfied that I cannot safely act upon his evidence and as far as evidence of what took place in the incident giving rise to those charges, I prefer the evidence of Mr Saga.

63. Having regard to all of the evidence, I am not satisfied that the act of the accused which caused Mr Phan's death occurred in circumstances where Mr Tran could not reasonably apprehend death or serious bodily harm. I am not satisfied that Mr Tran's response to the attack upon him by Mr Phan and Mr Su went beyond what he believed to be necessary in defence of himself.

64. In considering whether the force used was proportionate, that is for me to consider on the whole of the evidence. I give effect to what was said in Zecevic v Director of Public Prosecutions (supra) at 662 in the judgment of Wilson, Dawson and Toohey:

... it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds, it should consider whether the force used by the accused was proportionate to the threat offered. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial judge should also offer such assistance by way of comment as is called for in the particular case. No doubt it will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detached reflection.

65. I have regard to those comments and consider in the circumstances the accused did believe that his actions were necessary in order to defend himself and that he had reasonable grounds to hold that belief.

66. If the prosecution fails to discharge its onus in relation to self-defence, the accused has done nothing unlawful and no question of manslaughter arises (see Glen William Conlon (1993) 69 A Crim R 92 at 102 per Hunt CJ at CL). Also, in that circumstance, no question of provocation arises.

67. I find the accused not guilty in respect of both charges upon which he was indicted.

I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the Prosecution: ACT Director of Public Prosecutions