R v Vo

COUNSEL : Crown: P.G. Berman SC Respondent: P.M. Strickland SOLICITORS : S E O'Connor D J Humphreys CATCHWORDS : CRIMINAL LAW - appeals - appeal against conviction - aggravated break and enter and commit robbery - robbery in company - evidence of fingerprints - credibility of witness - whether verdict unreasonable and supported by the evidence DECISION : Appeal dismissed; Conviction and sentence below confirmed

IPP AJA WOOD CJ at CL SIMPSON J WEDNESDAY 14 MARCH 20001 Regina v PHUC TAN VO JUDGMENT

The appellant was convicted of one count of aggravated break and enter and commit a robbery and one count of robbery in company. He was sentenced to eight years imprisonment with a non-parole period of four years for the first count and to a concurrent fixed term of imprisonment for four years in relation to the second count.

The appellant appeals against the conviction under s 6(1) Criminal Appeal Act 1912 (NSW) on the ground that the verdict of the jury was unreasonable and could not be supported having regard to the evidence. Proof of finding the appellant's fingerprints and palmprint on the doors of the house and their recency was crucial to the Crown case. The appellant argued that the prints had been left there by him on the occasion of a lawful visit to the house more than nine months before the robbery. The evidence given by the owner of the house and by her son as to the regular cleaning of the doors, in a way that would have removed the appellant's fingerprints had they been deposited at the time he suggested, was lacking in credibility. On this basis the jury ought to have entertained a reasonable doubt as to the guilt of the appellant.

Held: (Appeal dismissed and conviction and sentence confirmed):

Ground 1: Verdict of the jury unreasonable and could not be supported by the evidence This is a case which depended entirely upon an assessment of the credibility of the witnesses and particularly on matters such as demeanour, which the jury were best placed to judge. The Jury had a distinct advantage over the Court of Criminal Appeal in that they saw and heard witnesses and were able to make their own impression of them. A doubt of relevant kind was not established.

Jones v The Queen (1994) 181 CLR 48 distinguished. Chamberlain v The Queen [N0. 2] (1984) 153 CLR 521; M v The Queen (1994) 181 CLR 487; Gipp v The Queen (1998) 194 CLR 106; Mayberry (2000) CCA 531 applied.

(1) Appeal dismissed. (2) Conviction and sentence confirmed. IN THE COURT OF CRIMINAL APPEAL

JUDGMENT 1 WOOD CJ AT CL: On 19 July 2000 the appellant was convicted, after a trial before Sides DCJ and a jury, of one count of aggravated break and enter and commit a robbery and one count of robbery in company. He was sentenced in relation to the first count to imprisonment for eight years with a non-parole period of four years, and to a concurrent fixed term of imprisonment for four years in relation to the second count. 2 He now appeals against these convictions upon the single ground arising under s 6(1) of the Criminal Appeal Act 1912 (NSW) namely, that the verdicts of the jury were unreasonable or could not be supported having regard to the evidence.

The Evidence 3 On the night of 10 September 1998, Mrs Ha Thy Nguyen went to bed in her house at 42 Silverwater Crescent, Lansvale. She locked all the doors of the house but neglected to activate the security alarm. She was awoken some time time later by a loud banging on her bedroom door. She heard someone shouting in Vietnamese, "open the door, open the door. I need to take your money". She tried to contact a neighbour using her mobile phone. Whilst speaking to him, the door was slammed vigorously before being pushed open. 4 An intruder, whose face was covered, entered and asked where her money was. He was armed with a steering wheel lock or similar implement. She replied that all of her money had been previously robbed, there having been such an event at her home in 1996. The intruder ransacked her room, taking a wallet containing her credit cards, five bags and a school bag. These facts gave rise to Count 1. 5 In the course of these events, Mrs Nguyen yelled out to her adopted son Cuong. Cuong, who was alerted by this cry for help, unlocked his door and saw two men whose faces were covered standing outside the bedroom door of Mrs Nguyen. They appeared to be hitting the door with a steering wheel lock and to be speaking in Vietnamese. He closed his door but when he reopened it in response to Mrs Nguyen's continuing calls for help, he was struck on the back by one of the two intruders. Demands were made of him as to where the money was. 6 Mrs Nguyen, at this point, ran from the house and went to the home of a neighbour to raise the alarm. One of the two intruders went into Cuong's room. They both fled when the alarm from the neighbour's house was activated. Cuong later discovered that $800 in cash had been stolen from the wallet that he kept in his bedroom. These facts gave rise to Count 2. 7 Police attended the scene and found that damage had been occasioned to the front external door and to the door to Mrs Nguyen's bedroom. That room had been obviously ransacked. Detective Kirby gave evidence that he had located three fingerprints on the bedroom door which were identical with the fingerprints of the appellant. He also found a palmprint just below those fingerprints that was also identical with the print of the appellant's left palm. 8 As a result of the absence of any admissions from the appellant, who declined to participate in an interview with police, and as a result of the inability of the victims to see the faces of either of the intruders, or to identify them otherwise than by reference to the fact that they were speaking in Vietnamese, proof of the finding of the fingerprints and of the palmprint and of their recency was crucial to the Crown case. This was made abundantly clear to the jury in the summing-up. 9 It was the case for the appellant, who gave evidence in the trial, that he had visited the house on about three occasions before the offences, as a guest of Mrs Nguyen's son Nam. On one such occasion, but on only one such occasion, he said that he had gone upstairs, with Nam's permission, to change out of some wet clothing. This had occurred when they returned to the house after jet skiing on a lake across the road. On this occasion he said that he had tried a couple of doors before finding a room that was unlocked in which he could change. 10 It was his evidence that he had met Mrs Nguyen briefly on one occasion and that he had been introduced to Cuong once at the home, and again at a nightclub. This aspect of his evidence was, however, disputed by each of those witnesses. The appellant also gave evidence of the layout of the house and of its contents, and spoke of his knowledge that Nam had owned a yellow 800 CC jet ski. 11 A man, Tuan Luu, gave evidence that the appellant had in fact been a friend of Nam and that he had seen him at Mrs Nguyen's house. Tuan Luu, it was established, had been living with Nam at Canley Heights before the departure of the latter for Vietnam. Immigration records disclose that Nam had left for that country on 27 November 1997 and had not returned to Australia after that date. 12 Accordingly, if the explanation offered by the appellant, for the presence of his fingerprints and palm print on the bedroom door, was to be of any practical assistance to him, his visit to the house on the occasion of the jet skiing had to precede that date, and to leave open at least a reasonable possibility that he had left prints on the door that had endured until the time of the offences. 13 Detective Kirby acknowledged that forensic investigative techniques could not date the prints. The chemical composition of a fingerprint, he explained, was an important factor in determining its durability. An oil or sebaceous-based print, he said, lasts a lot longer than a water-based print, while those exposed to the elements tend to last for a lesser time than those that are not so exposed. He also acknowledged that there had been reported cases of fingerprints being found two years after contact, and that prints left on glossy surfaces, such as a door, could last for longer than two years. 14 Critically, for the present case, Det Kirby said that wiping a surface on which a print has been left with water or a cleaning agent would remove it, although dusting would not necessarily do so. It is upon this last-mentioned aspect that this appeal turns because of Mrs Nguyen's evidence that she cleaned all of the doors and windows of the house each weekend. 15 The process of cleaning she described as one that involved dusting the wooden surfaces, spraying them with a special product and then, after thirty seconds or so, wiping them clean with a cloth. She said that she was accustomed to using a ladder to reach the higher points of the doors and windows. It was her evidence that the cleaning of the house occupied a good part of one day and that, whilst she attended to the doors and windows, Cuong cleaned the bathrooms. She added that she would not allow Nam's friends to go upstairs in her house to get changed, although she acknowledged that she was not at home all the time. 16 Her evidence as to the cleaning of the doors and windows was challenged upon the basis that, as a busy and wealthy person who ran a business employing up to ten people, it was improbable that she would do this kind of work herself, and upon the further basis or that she would not be so fastidious or obsessive as to do it religiously every weekend, particularly if the home was occupied only by herself and Cuong or if the upstairs area was excluded to outsiders. 17 It was also suggested that she had not told the truth when asserting that she did not have the money to pay for a cleaner, and that her evidence was, in some respects, inconsistent with that of Cuong. While Cuong did confirm that he and Mrs Nguyen cleaned the house, usually on a weekend and that it would take about a day to do so, he said that the doors were not always cleaned. Their cleaning, he said, occurred when they were dirty, sometimes once a week but otherwise every two or three weeks. He also said that the cleaning process involved applying a liquid spray to a cloth and then wiping the door with it, and using a feather duster to remove any dust. According to him, Mrs Nguyen used a chair or something else to reach high places on the windows or doors.

Was the conviction unreasonable or unsupportable upon the evidence? 18 When directing the jury as to the pivotal point in the Crown case, his Honour said: "Crucial to the Crown case is the evidence about the regular cleaning of the door. That circumstance is critical to the Crown case. It is a critical link in the chain of the Crown case. You could not find the accused was present participating in the joint criminal enterprise unless you were satisfied beyond reasonable doubt about the honesty and reliability of the evidence about the regular cleaning of the door". 19 This direction was, in a sense, unduly favourable to the appellant. As I have observed, it was his case that the prints had been left on the door at some date before 27 November 1997. Since it was accepted that he had not been to the house in the company of Nam after that date, the Crown, in fact, did not have to go so far as proving that the door had been cleaned every weekend, or even that the door had been regularly cleaned after that date. It would have been sufficient for it to prove that the bedroom door had been cleaned at least once after 27 November 1997 using the process described either by Mrs Nguyen or by Cuong. 20 The point sought to be made upon appeal, however, was that the acceptance and non acceptance of the truth of her evidence, as to whether she cleaned the door as regularly as she claimed, was important for an assessment of her credibility. Hence, it was a matter to be taken into account in determining whether the jury ought to have entertained a reasonable doubt as to the guilt of the appellant. 21 The assessment of her evidence, as well as that of Cuong, was quintessentially a matter for the jury, who were also entitled to bring to the matter their commonsense, and their experience of life as to what might have been expected in relation to house-cleaning in the domestic circumstances in question (see Mitchell (2000) NSW CCA 188 per Sperling J para 41). 22 I am not persuaded that the suggested inconsistencies between the evidence Mrs Nguyen gave and that given by Cuong were of any great moment, or that there was any reason to doubt that the doors and windows were cleaned on at least a regular basis between November 1997 and the time of the offence. Whether Mrs Nguyen stood on a chair or on some other object to reach the upper levels, and whether the sequence followed in the dusting and cleaning process was that described by her or by Cuong appear to me to be matters of little consequence. 23 Similarly, I am unpersuaded that it is improbable that a home owner who is house-proud would clean windows and doors on a regular basis, or that a person who has financial means would inevitably pay someone else to do that kind of work. Mrs Nguyen's evidence as to being unable to afford a cleaner to do the inside of the house is not, to my mind, incapable of acceptance. Such a matter no doubt depends upon personal priorities as to expenditure, and it is to be considered also in the light of her evidence that she did employ people to clean the exterior glass. 24 Moreover, I am unable to see any real significance in the cross-examination of Mrs Nguyen in relation to whether the door had been replaced and cleaned after the first robbery, or in relation to her recollection as to whether Nam had left to go to Vietnam before or after its replacement. 25 The explanation she gave as to an earlier incorrect statement that Nam had left Australia before the door was replaced may well have been based upon difficulties with translation, a circumstance in fact corroborated by the difficulty which police said they had in obtaining a statement from her. Moreover, it is the fact that Nam made several trips to Vietnam between January 1996 and November 1997. 26 The remaining matters relied upon as throwing doubt upon her credibility also do not, to my mind, take the matter any further. For example, the nature and source of the brown smudges evident upon the rear laundry door, which appear in the photograph tendered in the trial, are ambiguous. Whether they were present before the robbery, or whether they were placed upon the door in the course of forensic testing, is not evident. Other possibilities do arise, including the possibility that they were marks left by the family dog and the possibility that they were marks which were not removable by the cleaning process. 27 In substance, what was missing in this regard was evidence that the marks were dirt marks that had been present before the offences. In that regard, it is not unimportant that similar brown marks can be seen upon the light switch, which clearly were the result of forensic testing. What is also important is the fact that the photographs of the bedroom door, which were also tendered in evidence, do not show any similar brown marks or signs of dust. 28 Additionally, it seems to me improbable in the extreme that a palm print or fingerprint placed on a door, used as frequently as a bedroom door, would not have been covered over many times by prints deposited upon that door by others, over the period of at least nine months between Nam's departure from Vietnam, and the date of the offences with which this trial was concerned. 29 The test to be applied in relation to s 6(1) of the Criminal Appeal Act is now well settled by the decisions in M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439; Gipp v The Queen (1998) 194 CLR 106; Fleming (1998) 197 CLR 250 and Giam No 2 (1999) 109 A Crim R 348. 30 As was observed by Mason CJ, Deane and Toohey JJ in M:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." (See Whitehorn v the Queen (1983) 152 CLR 686; Chamberlain v the Queen [No 2] (1984) 153 CLR 532; Knight v the Queen (1992) 175 CLR 495 at 504-505; 511). 31 But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. (Chamberlain v The Queen [No 2] (1984) 153 CLR 621). 32 Later their honours observed: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and set aside a verdict based upon that evidence". ( Chamberlain v the Queen [No 2] (1984) 153 CLR at 618-619; Chidiac v the Queen (1991) 171 CLR 432 at 443-444). 33 In Jones, Brennan CJ referred to the basic principle upon which the function of an appellate court is determined, when considering this ground of appeal, namely that it is the jury which is the "constitutional arbiter of guilt" (at p 442). His Honour continued:

"An equation between a reasonable doubt entertained by a court of criminal appeal and a doubt which ought to have been entertained by a reasonable jury is valid only if the capacity for evaluating the cogency of a witness's evidence and the worldly wisdom of a court of criminal appeal are no less than the collective endowments of a jury." 34 In the same case, Kirby J observed (at 94): "The conventional assumption of the trial system in Australia, in both civil and criminal trials, is that the evaluation of truth telling is ordinarily to be performed by the tribunal of fact. It is that tribunal which sees witnesses and hears the entirety of the trial whereas the Appellate Court typically reads transcript and is taken by the parties to selected parts of the evidence, commonly read out of sequence, as the extracts seem best suited of supporting their respective arguments." 35 These observations have particular relevance for this appeal. The present is a case where the attention of the jury was focused by the summing-up upon a single critical issue - whether the door had been cleaned after 27 November 1997 in a way that would inevitably have removed any fingerprints or palm prints placed upon it before that date. It is a case which depended entirely upon an assessment of the credibility of the witnesses and particularly on matters such as demeanour, which the jury were best placed to judge. (See Mayberry (2000) NSW CCA 531 at para 137). 36 In each of those respects, the jurors had a distinct advantage over the members of this court in that they saw and heard the witnesses and were best able to make their own impression of them. To my mind, nothing has been shown which points to the conclusion that the evidence of the two critical witnesses, which were substantially corroborative of each other, lacked probative force or was otherwise tainted. The case is not one, to my mind, equivalent to Jones where the jury could be safely assumed to have disbelieved the critical witness on one aspect, yet believed her on others. This is a case clearly where the critical witnesses were believed. 37 In those circumstances, I am not satisfied that a doubt of the relevant kind has been established. I would dismiss the appeal and confirm the conviction and sentence below. 38 IPP AJA: I agree 39 SIMPSON J: I also agree. 40 IPP AJA: The order of the court will be as Wood J as indicated. **********

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