R v Tran [2005] VSCA 195

2 The applicant was, on 13 December 2004, found guilty by a jury in the County Court on one count of recklessly causing serious injury to a person. He was acquitted on two other counts, namely attempted armed robbery (count 1) and intentionally causing serious injury (count 2).

3 After hearing a plea in mitigation of penalty, the learned sentencing judge, on 21 January 2005, sentenced the applicant to 15 months' imprisonment, the service of nine months of which was to be suspended for a period of 30 months.

Grounds of Appeal

Conviction

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

"1. The learned trial judge erred by misdirecting the jury in:

(a) his summary of the evidence; and

(b) his directions on the facts in issue at trial.

2. The learned trial judge's directions as to self-defence were inadequate in all the circumstances.

3. In framing his directions as to self-defence the learned trial judge misdirected the jury as to:

(a) whether the accused had the opportunity to retreat or escape; and

(b) raised the issue of retaliation,

matters for which there was no factual basis on the evidence presented in the trial and which did not form part of the Crown case.

4. The learned trial judge erred by directing that the jury reason, in its considerations of counts 2 and 3, in a manner inconsistent with the way the Crown put its case on each of those counts and in relation to count 1.

5. The learned trial judge's charge was unbalanced, in that it failed to reflect adequately the significant weaknesses in the Crown case.

6. The verdict was inconsistent with the evidence in the trial, and reflects defective reasoning on behalf of the jury.

7. The inconsistent nature of the verdict renders the conviction unsafe and unsatisfactory."

"1. The learned sentencing judge erred in finding that it was the applicant rather [than] Nguyen who produced the scissors, a finding inconsistent with the jury's verdict on counts 1 and 2.

2. In all the circumstances the sentence imposed is manifestly excessive."

The Background

The Evidence[1]

Son Doc Nguyen

5 According to the alleged victim, Son Duc Nguyen_,_ during the afternoon of 3 January 2003, he was waiting with a female friend, Loi Vo near a phone box in Maidstone in order to meet with a person called "Mick" from whom they intended to buy some Normison tablets. Prior to this, they had been at the house of a friend, Nhan Dang, where they had taken heroin together. While they were waiting, Nguyen saw a red Holden sedan driving across a nearby side street. There were three occupants in the vehicle: the driver (described as an Australian male); a female; and the applicant, who was seated in the back seat. Nguyen approached the car and asked the applicant when he would pay a debt of ten dollars that he owed to him. The applicant responded with "next time" or words to that effect. Nguyen told him that he was waiting for a dealer to buy drugs.

6 Shortly afterwards, "Mick" arrived and Nguyen made his purchase. Nguyen and Vo then began to walk back to Dang's house. Suddenly, the two men from the red Holden sedan came up behind them. The "Australian male" grabbed Nguyen from behind by his arms, while the applicant pointed scissors at his throat, demanding money and drugs. Nguyen insisted that he had neither. They started to argue and Nguyen tried to push the applicant away. The applicant then "pointed the scissors in" and Nguyen fell to the ground with the scissors stuck in his throat. One of the men grabbed his left running shoe. Nguyen then stood up and pulled the scissors from his throat, as the two assailants ran in different directions. Nguyen, who was bleeding from the neck, tried to chase them but soon desisted. One of the men threw a shoe (not the one taken) at him and they left.

7 Nguyen and Vo returned to Dang's house where he looked in a mirror and saw a "big hole" in his neck to which he applied a towel in order to stem the blood flow. An ambulance arrived soon after and he was taken to hospital where he remained for a week.

8 Nguyen stated that he sometimes carried a small pair of scissors with him that he used for cutting his heroin, but the ones that he pulled from his neck were not his and he had never seen them before.

9 Loi Vo provided a version that differed in a number of significant respects from that of Nguyen. She stated that after she had injected heroin with Nguyen and Dang, at Dang's house, Nguyen and she went to the phone box so that Nguyen could call a dealer. They then returned to Dang's house where she saw scissors being used to make a "cap" of heroin. They waited for approximately half an hour before Nguyen and she went back to the phone box to "make a deal". She then observed Nguyen walk over to a red car and engage in an angry verbal exchange with the applicant, who was inside the vehicle. They were speaking angrily to one another. After that, Nguyen walked over to a man in a yellow car and bought some drugs from him.

10 On their way back to Dang's house, Vo again saw the red car. It stopped and two people came towards them. They approached Nguyen and began speaking angrily to him. They were behind her, but she could hear them arguing. When she turned, she saw Nguyen holding a pair of scissors that were embedded in his neck. The "Australian male" was holding Nguyen. The men then ran from the scene. Nguyen chased after them for a short distance and then stopped. Vo removed Nguyen's shirt and held it against his neck to stem the blood flow. They then returned to Dang's house where Dang washed Nguyen's clothes and told them to wait outside for the ambulance that had been called. The scissors that were removed from Nguyen's neck were similar to those used at the house earlier that day.

Other witnesses

11 Dennis Alveras resided in a house situated on the corner of Pullar and Bosquet Streets, Maidstone. On the afternoon of 3 January 2003, he saw a man hiding in his front yard. Alveras had noticed this person in the area previously, but did not know him. When he asked the man what he was doing, he received the reply that he was hiding from someone. Shortly afterwards, an Asian male and female walked by. The male was holding his neck and was bleeding. The female was using a mobile phone. The male, who had been hiding in Alveras' front yard, had blood on one of his hands. When Alveras asked him what had happened, the man said that the other "guy" had tried to rob him and had "pulled" a knife on him.

12 Vu Tuan Tran (the applicant's brother), was watching television at home, in the late afternoon of that day, when the applicant arrived. He noticed that the applicant had a bandage around his hand. When he queried him about it, the applicant told him that he had been robbed of his mobile phone and wallet by two Asian males and an Asian female and that he had sustained deep cuts to the palm of his hand. The applicant said that he had been riding his bike, when he came upon three people who argued with him over ten dollars that he owed. He sustained the injuries to his hand and palm when he had tried to take a knife from one of the males.

13 Dr Mark Walby treated Nguyen at the emergency department of the Western Hospital in Footscray. He found a single incised wound to the right side of his neck, and a large haematoma underneath his tongue that caused him difficulty with his speech. The injury to the neck was very serious with narrowing of the upper airway as Nguyen was continuing to bleed into a haematoma that was forming, and could have obstructed his airway at any time.

14 Detective Sergeant Jason Williams attended the scene, just after Nguyen had been taken away by ambulance. In Dang's house, he located Nguyen's wet clothing and two blood stained running shoes. One was a size 10 Adidas brand and the other a Nike size eight running shoe. He also found a pair of orange handled scissors that he was told were used in the assault.

The Prosecution Case

15 The prosecution contended before the jury that, on 3 January 2003, the applicant and Nguyen had a verbal exchange, at a street intersection in Maidstone, about ten dollars that Nguyen claimed was owed to him. Nguyen and Vo then walked away towards the home of a friend. As they were doing so they were approached by the applicant and another person (the Australian male) demanding money and drugs. When he refused to hand over either, the "Australian male" grabbed Nguyen from behind. There was a short struggle and the applicant produced a pair of scissors and stabbed Nguyen in the neck. He fell to the ground with the scissors still embedded and the applicant and the other male then ran off. The victim then carried the scissors to his friend's house. If the jury accepted the central features of the evidence of Nguyen, it was said, the offence of alleged armed robbery was clearly established and an adequate foundation existed for a finding by the jury that the applicant was guilty of one or other of counts 2 and 3.

16 It is appropriate at this point to refer to two aspects of the evidence that presented difficulty for the prosecutor. First, as earlier mentioned, Loi Vo stated that the two attackers drove past them before approaching and that neither the applicant or the other male carried anything as they came towards them. Second, she stated that the scissors used in the attack were similar to a pair that she had seen the victim use earlier that day. Nguyen, however, denied that he ever had or used such scissors.

The Defence Response

17 The defence scenario was diametrically opposed to that advanced by the prosecution in a number of respects. The applicant told the police, when interviewed, that it was he who was set upon by two males for the purpose of robbery and that, when he resisted, he accidentally stabbed Nguyen in the neck with scissors that Nguyen had brought with him. When regard was had to the difficulties associated with Nguyen's evidence and the prosecution case more generally, the jury should not be satisfied beyond reasonable doubt that the applicant was guilty of any of the offences alleged, it was argued.

The Proceeding

18 There would appear to be no doubt that the trial centred on this conflict of versions from the outset. The prosecutor, when indicating to the trial judge the manner in which he proposed to open the Crown case before the jury, put the position as follows:

"I think when you have a look at the way I open the trial, this is a trial that really hinges on two versions; the victim's version and the accused's version of events. The accused's version of events raises issues of him being assaulted and self-defence."

19 The transcript of evidence adduced and a discussion between the trial judge and the trial prosecutor following the prosecutor's final address reveal that this approach was maintained throughout. However, at that stage, there was an exchange between the prosecutor and the trial judge in the absence of the jury in which his Honour expressed doubt that the Crown case had been properly presented:

"HIS HONOUR: [Prosecutor], I don't understand your submission that if there's a not guilty verdict on Count 1 there's automatically a not guilty verdict on Counts 2 and 3?

PROSECUTOR: Sorry, that's how I thought I was putting it. Did I?

HIS HONOUR: That's how you put it and that's what I don't understand.

PROSECUTOR: No. No, I did not mean that at all. If there's a not guilty ...

HIS HONOUR: You said several times, if there's a not guilty verdict on Count 1 you are to return not guilty on 2 and 3.

PROSECUTOR: If there's a not guilty on 1, not guilty on 2 and 3.

HIS HONOUR: Why does that follow?

PROSECUTOR: Yes. Yes, well I stand by that. The Crown ...

HIS HONOUR: What if no demand was made and it was just an attack?

PROSECUTOR: If no demand was made they would be - well what I was suggesting was, if they don't accept Nguyen's version of events ...

HIS HONOUR: It's not a matter of accepting versions or not accepting versions, Mr [Prosecutor]. It's a matter of proof of elements of the offences.

PROSECUTOR: Yes.

HIS HONOUR: All you have said to this jury is, accept Mr Nguyen's account. You haven't given them any proper analysis of the elements or how to approach their problem. But the issue I'm raising with you is, and I repeat, why say, not guilty on 1 means not guilty on 2 and 3?

PROSECUTOR: Yes. If they're not satisfied of the elements that make up Count 1 ...

HIS HONOUR: They may not be satisfied that any demand was made. They return a verdict of not guilty.

You have said to them, they automatically must find not guilty on 2 and 3 which doesn't have any element of demand in it.

PROSECUTOR: Correct. So they could accept that scissors were used, the accused was the aggressor, no attempt at robbery occurred but serious injury was caused. If that were the verdict - yes I follow what Your Honour says, they could find no demand was made. They don't accept that part of the evidence. If that were to occur and then they came back with a guilty verdict on 2 or 3, that would be possible, in my submission to you, the prospect of that being a possible outcome is extremely remote. It would indicate a process of reasoning, in my submission, that would be convoluted and potentially in error in the process of reasoning on how the incident took place.

HIS HONOUR: It's not for you to now assess whether or not a possible series of verdict is potentially difficult or not difficult. It is for you to present the prosecution case to its full strength.

PROSECUTOR: Yes, and what I'm suggesting to you is if a verdict came back, for example, with a guilty verdict only on Count 2, intentionally causing serious injury, the jury would have to have gone through a process where they don't accept any demand was made.

HIS HONOUR: That's a matter for the Court of Appeal, isn't it?

PROSECUTOR: No, I'm just saying that would be the process of thinking that ...

HIS HONOUR: Yes, but that would be an issue for the Court of Appeal, not for this court.

PROSECUTOR: Yes, and that's the process that I was considering when I was developing that submission that it caused me concern that if they found a person not guilty and then guilty of either of the other two, was that a legitimate process of reasoning and that's what I was considering over the lunch on how to assist them in their deliberations on the three counts.

HIS HONOUR: It's unfortunate you didn't raise these issues before you commenced your address but I shall ... [Counsel for the accused], have you anything to say about this?

COUNSEL FOR THE ACCUSED: Yes, I do. My learned friend is entitled to be realistic with the evidence. In my submission, the proposition that Your Honour is putting to him about a technical possibility is simply - would be unreasonable for any jury to conclude, as Your Honour seems to suggest would be open to them. If they found him not guilty from a practical point of view it would be absurd for them to find him guilty of the 2nd count or the 3rd, and that's - my learned friend is being realistic and Your Honour is not being realistic.

...

I propose to tell the jury that what [the prosecutor] said in relation to that is sensible and I thank him for the concession that he made in relation to this. If Your Honour proposes to tell them something else, then that's for you but I propose to do that and I thought I should tell you that before the jury are brought in."

20 The trial judge and both counsel had no doubt that the prosecutor had premised his case on the proposition that if the jury was not satisfied they could rely upon the central features of Nguyen's version of events, the applicant was entitled to an acquittal on all counts, accepting that otherwise there was no evidence as to what took place capable of supporting a conviction on any of the offences.

21 His Honour, on the other hand, was of the opinion that a verdict of guilty could be properly returned on counts 2 or 3 (as appropriate), even if the jury totally rejected Nguyen's robbery scenario. He considered that it was open to them to find that, whatever may have precipitated the occurrence, there was a confrontation between the two men in the course of which Nguyen was unlawfully stabbed by the applicant.

22 I suspect that his Honour doubted (in my view with some justification) that either Nguyen or the applicant was prepared to disclose exactly what took place or the genesis of their dispute. As the extract above indicates, he clearly contemplated the possibility that, for a reason which neither was prepared to reveal, the applicant attacked Nguyen.

23 In his subsequent instruction to the jury on the issue of self defence, his Honour also directed his mind to the questions that could be seen to arise if the jury accepted the possibility that the applicant had been attacked by Nguyen and had gained possession of the scissors from him. In that circumstance, he reasoned, they would need to consider whether there was any occasion for self defensive action at that stage, whether the situation may have been avoided by the applicant simply walking away and whether his action in stabbing Nguyen was performed in retaliation for the finished assault.

24 His Honour was critical of the prosecutor in not pursuing these matters. Be that as it may, the prosecutor was correct in his analysis of the situation existing at that stage. For practical purposes, he had based his case entirely upon the evidence of Nguyen. Once that was either rejected, or not accepted beyond reasonable doubt, by the jury, there was nothing approaching a sufficient evidentiary foundation to support a conviction on any of the charges.

25 By reason of the approach that had been adopted by the prosecutor and counsel for the applicant in the trial, little or no attention had been given to the matters raised by his Honour in the evidence-in-chief or cross-examination of Nguyen or Loi Vo (the only two witnesses who may have been able to cast some light on these matters), and no analysis of the position was advanced in the prosecutor's address, based on the assumption that the jury effectively rejected the foundation of the prosecution case and approached the matter in the fashion proposed by his Honour. In any event, even if some such analysis had been attempted, all that would have remained, if Nguyen's evidence was not accepted, was the incomplete description contained in the applicant's record of interview on which it could rest. I do not wish to convey the impression that I share the judge's critical view of the approach adopted by the prosecutor in this case. On the contrary, in my view, the prosecutor properly acknowledged from the outset that whether the applicant could be convicted of any of the offences on which he was presented depended upon the jury's view of the reliability of the evidence of Nguyen. Having reached that conclusion, he presented the case for the Crown on that basis avoiding any attempt to finesse or to construct some contrived basis for conviction.

26 Notwithstanding the concerns expressed by both the prosecutor and counsel for the applicant, as to the manner in which the trial had proceeded and the adoption of the process of reasoning and the possible view of the evidence suggested by his Honour, the matter was put by him before the jury on this basis.

Grounds 2, 3 and 4

27 His Honour commenced his instruction to the jury with regard to the issue of self defence by pointing out that the onus rested upon the prosecution to establish that the applicant did not act in self defence at the time that Nguyen sustained the injury to his neck. He reminded them of the passages in the record of the interview conducted by the police in which this matter was addressed by the applicant. He then said:

"The prosecution of course allege that the victim of this attack was Mr Nguyen, that if in fact Mr Nguyen in fact started the attack then my direction to you is that the accused, and this is for you to determine, but that the accused is then entitled to your consideration as to the issue of self-defence."

28 He drew attention to the Crown claim that there never was any occasion for self defence and that two men set upon Nguyen in order to take from him drugs and money that they thought he had in his possession. When he resisted, he was stabbed in the neck with a pair of scissors. His Honour further instructed the jury:

"Both participants, Mr Nguyen and the accused, allege of course that they were suddenly attacked. Both participants allege that only one pair of scissors was used. There was only one weapon available it appears in the course of this altercation, apart from the accused's referenced to a lock of some kind which he says that the Australian man was wielding towards him. But if you are satisfied that there was only a pair of scissors used on this occasion or that the accused was in fact attacked by persons, the comment I make to you, and it is purely a comment, and not a direction in law in any way, but the comment that I make to you is that is possible that in either altercation the person who had possession of the scissors would appear to be in a relatively dominant position. It is the accused's account that having gained possession of those scissors he used them to defend himself and stab Mr Nguyen in the manner that you have heard evidence about.

Was there sufficient time for an extended struggle in exchange of blows and you should also of course take into account the nature of the injuries actually inflicted on the two participants. However the struggle started or developed it is clear that Mr Nguyen received very serious injury to his neck."

29 In this Court, Ms Carlin, who appears for the Crown, argued that the trial judge did not fall into error in putting these matters before the jury, pointing out that the matters to which he directed their attention were well recognised as possessing relevance in the determination by a jury of the question whether the prosecution had excluded beyond reasonable doubt the possibility that an accused may have acted in lawful self defence.

30 She argued, quite correctly, that a trial judge is not obliged to confine his instructions to the jury, so that they coincide precisely with the formulation of the issues advanced by either the prosecution or the defence. There may be good reasons in the adversarial setting of a criminal trial why the parties join issue at one point or another and barely address matters to which a jury may need to direct attention. The real question to be considered by this Court, she submitted, was whether the accused had had an adequate opportunity to address the possible bases for conviction properly available in the circumstances. In the present matter, she contended, the trial judge informed defence counsel concerning the manner in which he proposed to instruct the jury prior to the commencement of his charge and, importantly, before the delivery of the final address on behalf of the applicant. Had counsel wished to do so, he was certainly in a position to advance argument with respect to the matters raised. Whether or not counsel for the applicant did deal with them is unknown. In that situation, no miscarriage of justice could be seen or inferred.

31 It is fundamental to the proper operation of the criminal justice system that an accused person has an adequate opportunity to address the case presented against him through evidence adduced on his behalf; challenge, by way of cross-examination, evidence given by prosecution witnesses; and, of course, the presentation of submissions to the jury in final address. Where the prosecution chooses to present its case on a particular basis by relying, for example, as in this matter, upon the version of events given by a specific witness, then it is that case to which the accused can reasonably be expected to respond. There is, in ordinary circumstances, no need to address assertions or possible bases for conviction not advanced against him or upon which no reliance whatever has been placed by the prosecution.

32 Of course, within the ambit of a prosecution case and the evidence generally, different conclusions may be reached according to facts found or reasoning processes adopted by the jury. As a matter of forensic reality, a prosecutor may elect to pursue a single line of argument without abandoning the adoption of alternative approaches by the jury. Similarly, counsel for an accused may decide not to incur the risks perceived to arise from the presentation of argument based on incompatible factual assumptions.

33 Trial judges in such situations are required to provide instructions to the jury, directed to the issues that properly arise as matters of law and fact in the trial but need to be careful to ensure that juries are not invited to speculate about matters which have not been the subject of adequate attention in evidence or argument and that they do not themselves compromise the fairness of the trial.

34 As I have pointed out, the possibility that a confrontation, involving Nguyen and the applicant, may have developed in some other fashion or for some other cause than that described by Nguyen himself was never advanced by the prosecution. No attention was given by either the prosecutor or counsel for the applicant to the question whether the applicant may have had some opportunity to retreat from his attackers or have acted in retaliation[2]. The only version of what happened at the time of the stabbing was provided by Nguyen. Little, if any assistance, could be derived from the evidence of Loi Vo, with regard to the possibility of retreat, and none with respect to the suggestion that he may have acted in retaliation. From the perspectives of both sides, if Nguyen's evidence was accepted the situation was relatively straightforward. On the other hand, if the jury found themselves unable to rely upon that evidence, it was only possible to conjecture concerning what transpired. Although his Honour adverted to the possibility that the jury might find that the applicant attacked Nguyen for some other reason than that claimed by Nguyen he did not refer to any evidence capable of supporting any such conclusion. Further he provided the jury with no guidance as to how the relevant principles of law might apply to that evidence.

35 In the event, the jury by their verdict indicated that they were not able to conclude that the Crown had established that Nguyen was the victim of an armed robbery. Considered against that background, and in the particular circumstances, the verdict of guilty of recklessly causing serious injury can only be reasonably reconciled on the foundation that, like the trial judge, they were unimpressed by the versions of either Nguyen or the applicant, both of which conflicted with that of Vo (which itself presented some difficulties) and concluded that they could be certain however that the applicant stabbed Nguyen in the neck. The probability of a compromise verdict cannot be ignored.

36 The situation can be compared with that considered by the court in Green[3] where the trial judge put before the jury, for their consideration, a motive that the prosecutor had expressly declined to ask the jury to find established, referring to it as speculative. Charles, J.A. concluded that in doing so, the judge had -

"... introduced a theory of guilt which had not been part of the case put by the prosecution, and thus significantly altered the course of the trial".

A similar observation can be made here notwithstanding that an opportunity was given to counsel for the accused to attempt to deal with the new issues in his final address.

37 There is also a distinct possibility that the jury's assessment of the situation may have been influenced adversely to the applicant by the critical remarks made by his Honour in his charge when referring to the prosecutor's approach. At one point he said:

"[The prosecutor] ... submitted to you that if the accused was in fact a victim of the attack that was brought by Mr Nguyen as he alleges, then the issue of self defence is one that you should accept. He said that because there had been an initial attack allegedly by Mr Nguyen that self-defence determined the matter, and that the accused should be acquitted.

"Human experience, as well as the law, members of the jury, is in fact a good deal more complex than that, and so it is necessary for me to direct you as to the elements of self-defence."

"The accused man had some cuts to his fingers, and to the base of his thumb, and you have seen photographs which to a limited extent show those injuries several days, quite a few days, on 8 January I think, days after they were inflicted.

...

On this issue has the prosecution established beyond reasonable doubt that the accused did not believe on reasonable grounds that what he did was necessary to defend himself, and the prosecution have accepted that if the accused was attached by Mr Nguyen then his action of stabbing in the neck was self-defence, my direction is to you that in fact that issue is somewhat more complex than that, and I have endeavoured to take you through the elements of self-defence, and the evidence that is relevant to that issue."

The jury were invited, in effect, to ignore the prosecutor's submissions and to consider issues outside the parameters of the case presented by the prosecution. They may well have interpreted these remarks as indicating that the judge regarded the case against the applicant as strong but poorly presented. It is common enough in other contexts to speak of the "authority" of the judge in a criminal trial. That authority is deemed not only from the role performed but from recognition by the jury of the experience and understanding that hopefully can reasonably be attributed to judges presiding in such trials. It follows that care must be exercised to ensure

that the views of the judge do not themselves constitute a source of possible unfairness to the prosecution or the accused in the trial.

38 The effect of these considerations, in my opinion, is that the verdict in this case must be regarded unsafe and unsatisfactory and this application for leave to appeal should be allowed and the verdict in the court below set aside.

39 It follows also that no retrial should be held and that an acquittal should be entered on count 3. There is in that situation no need to address the remaining grounds.

[1] This outline which does not purport to be complete, has been prepared from the trial transcript and the Summary provided to the Court.

[2] I would add that in the applicant's police interview the following exchange took place:

"Q Why didn't you just run off when you grabbed the scissors? Why did you stab him in the neck?

A Just got angry 'cos, you know, he came and attacked me.

Q Do you think that's a bit over the top, stabbing someone in the neck?

A I didn't realise that I stabbed him in the neck, it just - I didn't intentionally do it.

Q Well, did you - what - when you took the scissors off him - - - ?

A Yeah.

Q Did you think, 'I'm going to stab him?'

A No.

Q Then why - - - ?

A It just happened, just - just a reaction, you know.

Q Right.

A Yeah."

[3] R. v. Green [2002] VSCA 34; (2002) 4 VR 471 at [23].