//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2003] NSWCCA 82
respondent. Appeal against conviction dismissed: [338].
Ngo's murder conviction appeal was dismissed. The Court concluded that the jury was not shown to have been unfairly influenced by the prosecutor's newspaper, that the trial judge had lawfully balanced the accused's position against the witnesses' fears when allowing audiovisual-link evidence, and that the challenged evidence and jury directions did not cause a miscarriage of justice. The Court emphasised assessment of the trial as a whole, rather than requiring perfect directions or eliminating every possible disadvantage.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,681 words · generated 29/09/2026
The New South Wales Court of Criminal Appeal, constituted by Stein JA, Sully J and Levine J, heard Phuong Canh Ngo's appeal from his conviction for the murder of John Newman. The judgment records that Newman was shot twice in the chest at his Cabramatta home on 5 September 1994. Ngo was found guilty by a jury on 29 June 2001 and sentenced to life imprisonment on 14 November 2001. Two co-accused, David Dinh and Quang Dao, were acquitted [2].
No linked legislation citations have been extracted yet.
The Crown alleged that Ngo organised the killing through employees and associates of the Mekong Club, which he had established and was understood to control. Its case relied on alleged preparations to obtain firearms and recruit a gunman, evidence of surveillance near Newman's home, witness accounts of vehicles and movements on the night, telephone records, accomplice evidence from T and N, and evidence concerning a pistol recovered from the Georges River [7]-[22]. The defence contested the Crown's account, including the credibility of T and N, and pointed to other possible sources of hostility towards Newman [23]-[24].
At the appeal hearing, Ngo relied on grounds concerning a juror's exposure to a newspaper article, the use of audiovisual links for Mr L and Mrs L, Mrs L's recognition evidence, accomplice and identification directions, directions about lies, the recovered pistol, political motive, the acquittals of the co-accused, the possible identity of the shooter, and evidence of earlier plans and attempts [3]. The Court dismissed the appeal [338].
The decision is not a fresh determination of guilt. The Court's task was to decide whether the challenged trial rulings and directions disclosed appellable error or a miscarriage of justice. Its discussion repeatedly considered the challenged points in the context of a long and complex trial and the summing-up as a whole.
On the juror issue, the prosecutor had been reading a photocopy of an article headed “ICAC to Probe Viet Game Club”. The concern was that jurors might connect it to the Mekong Club and then to Ngo [26]-[28]. The forewoman said she saw only the letters “ICAC” and briefly mentioned them to a neighbouring juror [32], [46]-[47]. The Court accepted the trial judge's approach: the question was whether the incident created a reasonable apprehension or suspicion, in a fair-minded and informed member of the public, that the juror or jury would not act impartially [39], [50]. Given the limited evidence of what the forewoman saw, the Court found no basis for that apprehension. It also held that the judge's instruction to put the article out of mind was clear and adequate [51]-[55].
The audiovisual-link issue required a more extensive statutory and factual assessment. The witnesses were permitted to give evidence from a remote location. The jury, judge and counsel could see and hear them, but the accused could hear without seeing them. The judgment notes that a non-operating monitor was placed in front of the accused to give the jury the impression that they could see the same material [56]. The Court examined ss 5B and 20A of the Evidence (Audio and Audio Visual Links) Act 1998, along with the relevant Supreme Court Rules [64]-[73].
The Court treated s 5B(2)(c) as requiring consideration of whether the direction would make the trial unfair, rather than whether it caused any disadvantage at all. It said that the degree and effect of unfairness had to be assessed, with the fundamental right to a fair trial as the measure [108]. Under s 5B(3), a contested direction required a balancing of the interests of the accused, witnesses, Crown and public [124]. The trial judge had evidence that the Ls' fears were genuine and that they probably would not give evidence face-to-face [105]-[106]. The Court also considered the claimed disadvantage to Ngo: whether seeing the witnesses could have enabled him to recognise them and give instructions relevant to credibility. It regarded that possibility as speculative on the trial record, noting that the witnesses were local and that their presence and work in the area were known [112]-[116]. It found no error in the balancing exercise [123], [126].
The Court rejected the argument that s 20A required the accused personally to see a witness. It read that section as setting minimum technical requirements for the audiovisual equipment, not as displacing the trial judge's discretion about who could view the screen [128]-[133]. It also held that the rule preventing a direction that stops an accused “attending” proceedings did not necessarily require the accused to see every witness. “Attending” meant being present at the proceedings; the Court found Ngo had not been prevented from attending [134]-[137].
Mrs L's identification evidence was weak. She first saw someone familiar, then looked again after her husband said the man was Councillor Phuong Ngo. She accepted that she could have been mistaken [140]-[142]. The Court nevertheless held that weakness alone was not a reason to exclude relevant evidence. Its concern was whether the jury might give the evidence more weight than it deserved, or be inflamed or diverted by it [151]-[153]. The judge had highlighted the conditions of observation, the short viewing time and the effect of the husband's suggestion [149]. The evidence was therefore left for the jury to assess.
The Court also found the accomplice directions adequate. Section 165(2) required warnings, on request, that the evidence might be unreliable, an explanation of factors that could cause unreliability, and a caution about acceptance and weight [167]. The judge identified T and N and explained the risks associated with accomplice evidence and indemnities, including possible blame-shifting and pressure to maintain earlier accounts [172]. The Court accepted that the trial judge could use the directions and summaries appropriate to this complex case without itemising every potential corroborative fact [190]-[195]. It also rejected the claim that N and Tong Ngoc were necessarily accomplices of the kind who could not corroborate each other under the principle discussed in Pollitt [179], [197]-[200].
The remaining grounds largely concerned the adequacy and effect of the summing-up. On lies, the judge explained the requirements for finding a deliberate lie, including that a statement be knowingly untrue and relate to a material matter, and addressed possible innocent explanations [209]. The Court rejected the argument that lies about Ngo's movements became immaterial if the jury did not find the recovered pistol was the murder weapon. The alleged lies concerned his whereabouts close to the time of the murder, not simply the identity of the pistol [213]-[218].
The judgment applies, rather than announces a general replacement for, existing principles. On jury exposure to extraneous information, it relied on the impartiality test associated with Webb v The Queen and treated the decision whether to discharge the jury as a discretionary one, subject to appellate review for error or miscarriage [49]-[51].
For remote testimony, the decision explains how the then-applicable NSW statutory scheme operated. Section 5B supplied the conditions for a direction, including unfairness and the interests of the administration of justice. The Court explained the sequence as first considering the statutory preconditions and then, where required, the s 5B(3) public-interest balancing exercise [104]-[108]. The judgment's conclusion about s 20A was interpretive: it treated that section as a technical-facilities provision, not a guarantee that every person in court could see the witness [128]-[133]. Its discussion of confrontation treats the ability to see an accuser as an important consideration, but not an absolute entitlement in every procedural setting [118]-[123].
On accomplice warnings, the Court recognised that the Evidence Act had altered the former general common-law position by removing the universal obligation to warn, while preserving the trial judge's power and, in appropriate circumstances, duty to warn [168], [187]-[188]. Where a warning was requested and given, the question was whether it was legally adequate and whether the judge provided enough help applying it to the evidence. The Court did not require a universal formula or a complete inventory of corroborative evidence. It emphasised that the appropriate form depends on the volume and complexity of the material [189]-[195].
On summings-up more generally, the judgment applies the principles in RPS and Domican: a judge must identify the live issues and fairly put the parties' cases, but is not required to repeat every argument or discuss every conflict in the evidence [270]-[273]. The Court's treatment of the prior-plans evidence likewise turned on what use the jury was told it could make of that evidence, and on the circumstances in which no further warning was requested [325]-[337].
The judgment does not provide a survey of decisions handed down after 3 April 2003. It therefore cannot establish how later courts treated this decision. Its own discussion refers to authorities available to it, including cases on confrontation, accomplice warnings, identification evidence and jury directions. Any account of subsequent treatment would require later sources beyond this judgment.
At [108], the Court said: “The Court must consider the degree and effect of the unfairness.” In practical terms, the statutory test was not whether remote testimony involved any disadvantage. The judge had to assess whether the effect was serious enough to make the trial unfair to the accused.
At [124], the Court explained that the administration-of-justice assessment involved “a balancing of these interests.” Those interests were not confined to the accused and prosecution. The Court included the witnesses and the wider public interest in a fair and efficient criminal justice system. The witnesses' genuine fears and the likelihood they would not give evidence face-to-face were part of that balance [125]-[126].
At [133], the Court concluded that s 20A “does not usurp or limit the discretion of a trial judge to make appropriate orders as to who may view the screen.” Put plainly, the technical rule that the courtroom equipment must allow people there to see and hear the witness did not itself decide who should be allowed to watch the screen.
At [153], the Court held that the trial judge was entitled to admit Mrs L's evidence even though it was weak. The reason was not that weakness was unimportant, but that the jury could see its limitations and had been directed to assess them. The Court distinguished weakness from unfair prejudice sufficient to require exclusion.
At [195], the Court said the “cardinal point of reference” in the complex joint trial was “practical fairness and not artificial perfection.” This did not remove the judge's obligation to direct the jury correctly. It explained why an appellate court would not require a lengthy summing-up to catalogue every possible corroborative item where the judge had given correct general directions and fairly summarised the rival submissions.
At [214], the Court distinguished alleged lies about movements from an alleged lie about the gun. It concluded that a jury could regard a deliberate lie about whereabouts close to the time of the murder as material even if it was not satisfied that the recovered pistol was the murder weapon. The Court's reasoning was specific to the Crown case as presented and the directions given.
The juror-exposure reasoning is relevant where a juror may have glimpsed inadmissible or potentially prejudicial material, but the evidence about what was seen is limited. The judgment calls for attention to the actual evidence, the possible connection between the material and the accused, and the adequacy of the trial judge's response [46]-[55]. It does not establish that a warning will always cure exposure; the Court's conclusion depended on what this forewoman saw and the lack of evidence that the jury made a connection to Ngo.
The audiovisual-link analysis is relevant where a party opposes remote testimony and the order may disadvantage the accused, including where the accused cannot see the witness. The statutory setting matters: the judgment considered the then-applicable wording of s 5B, the evidence supporting the witnesses' fears, the possible forensic disadvantage, and the practical effect on the trial [105]-[126]. It does not say that witness fear alone resolves the issue. The judge must consider fairness to the accused and the broader interests identified under s 5B(3).
The identification-evidence reasoning is relevant where recognition evidence is uncertain, suggested by another observer, or made under limited viewing conditions. The jury directions and the risk of overvaluation formed a central part of the Court's analysis [140]-[153]. It does not mean that all weak identification evidence must be admitted; the Court applied the statutory prejudice test to the evidence and directions in this trial.
The accomplice-direction reasoning is relevant where a requested warning is required under s 165 and a trial involves multiple witnesses who may have been criminally concerned in the events. The judgment illustrates the significance of explaining the particular risks, including indemnities, possible self-exculpation and the danger of maintaining an account already given to investigators [167]-[176]. It also illustrates that the appropriate explanation of corroboration may differ according to the scale and complexity of the case [190]-[195].
Finally, the summing-up discussion is relevant where an appellant alleges that the judge omitted a particular argument or failed to give an express warning. The decision examines what was said, whether counsel sought a further direction at trial, the parties' forensic positions and the summing-up as a whole [281]-[285], [331]-[336]. Those features are part of this decision's reasoning and should not be separated from its outcome.
The supplied judgment contains no later treatment of Regina v Ngo [2003] NSWCCA 82. It is itself dated 3 April 2003, and its references to other authorities concern earlier or contemporaneous decisions considered during the appeal. On the materials provided, it is not possible to say whether later courts followed, distinguished, limited or otherwise treated this judgment.
The judgment does record its own treatment of authorities. It applied Webb to the juror-bias issue [50]-[54], referred to House v The King when considering review of the trial judge's discretion concerning witness fears [106], and applied the approach to evidence warnings described in Reg v Chen [187]-[195]. It distinguished BRS because that case concerned similar sexual misconduct led to rebut good-character evidence, whereas the evidence in Ngo was characterised as preparation leading to the charged offence [327]-[330]. These are relationships identified by the Court in this judgment, not claims about later decisions.
The judgment leaves the application of its statutory analysis dependent on the particular wording of the legislation in force at the relevant time. It notes that the Act had been amended and that later amendments were not applicable to Ngo's trial [102]. The decision therefore does not, by itself, establish the effect of any later statutory amendments or the current operation of the Act.
The Court concluded that the accused's inability to see the witnesses did not create appellable error on this record, but its reasons recognise that seeing and knowing one's accusers is an important aspect of confrontation [118]-[123]. The judgment does not provide an exhaustive rule for cases where the accused can identify a witness only by seeing them, where credibility material is demonstrably available only to the accused, or where the remote procedure more seriously impairs communication with counsel.
The decision's treatment of jury directions also leaves room for fact-sensitive assessment. It held that an item-by-item catalogue was not required in this lengthy, complex trial [190]-[195], while accepting that some cases may permit a more concentrated statement of potentially corroborative evidence [193]. It does not specify a universal threshold for when complexity makes a catalogue impracticable.
On the newspaper incident, the Court did not need to decide how a stronger exposure would affect the discharge question. The forewoman saw only “ICAC”, and the Court found no basis to infer a connection to the appellant or the club [46]-[51]. A case where a juror read the prejudicial content, discussed it more extensively, or communicated it to other jurors would require assessment on its own evidence.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
CITATION : Regina v Ngo [2003] NSWCCA 82 revised - 16/04/2003 HEARING DATE(S) : 13 - 15 November 2002 JUDGMENT DATE : 3 April 2003
JUDGMENT OF : Stein JA at 1; Sully J at 1; Levine J at 1 DECISION : Appeal against conviction dismissed
CATCHWORDS : CRIMINAL LAW - JURY - juror inadvertently exposed to inadmissible evidence - whether falure to discharge jury - whether incident gave rise to reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not, or will not discharge its task impartially - whether direction adequate to correct any prejudice or perception of prejudice to the accused EVIDENCE - whether decision to allow witnesses to give evidence by videolink infringed the right of the accused to a fair trial - whether s 20A of the Evidence (Audio and Audio Visual Links) Act 1998 provides that an accused must be able to see witnesses in all circumstances - whether accused has a fundamental right to confront accuser where issues of identity involved - whether trial judge properly balanced the forensic disadvantage suffered by the accused with the rights of witnesses - whether the decision to allow the witnesses to give videolink evidence prevented the accused from attending a part of the proceedings (Supreme Court Rules Part 75 rule 2(8)(b)) EVIDENCE - whether inadequate direction as to lies - whether inadequate direction as to accomplice evidence Evidence Act 1995, ss 55, 56, 87(1)(b) and (c), 108(3)(b), 137, 164, 165(1), (1)(d), (2)(a) (b) and (c), (3),(4) and (5) Evidence (Audio and Audio Visual Links) Act 1998, ss 5(1A), 5(2), 5B(1), 5B(2)(a), (b), (c) and (d), (2A), (3), 20A(a) LEGISLATION CITED : Evidence (Children) Act 1997 Supreme Court Rules (Part 36 rule 2A(1) and Part 75 rule 2(8)(b) European Convention on Human Rights Article 6 Charter of Rights and Freedoms (Canada) Alford v Magee (1952) 85 CLR 437 Ali v The Queen (1981) 6 A Crim R 161 Basto v The Queen (1954) 91 CLR 628 Blakely v The Director of Public Prosecutions [1991] RTR 405 BRS v The Queen (1997) 191 CLR 275 C v The Queen (1993) 67 A Crim R 562 Davies v Director of Public Prosecutions [1954] AC 378 Domican v The Queen (1992) 173 CLR 555 Doney v The Queen (1990) 171 CLR 207 Dyers v R (2002) 192 ALR 181 Festa v The Queen (2001) 208 CLR 593 Giorgianni v The Queen (1985) 156 CLR 473 De Gruchy v The Queen (2002) 190 ALR 441 House v The King (1936) 55 CLR 499 Jago v District Court of NSW (1989) 168 CLR 23 Jarvie v Magistrates' Court of Victoria at Brunswick [1995] 1 VR 84 Johnson v Youden [1950] 1 KB 544 Jones v Dunkel (1959) 101 CLR 298 McKinney v The Queen (1991) 171 CLR 468 Maric v The Queen (1978) 20 ALR 513 Maryland v Craig (1990) 497 US 836 Plomp v The Queen (1963) 110 CLR 234 Pollitt v The Queen (1992) 174 CLR 558 Prosecutor v Tadic 10 August 1995 (International Criminal Tribunal for the former Yugoslavia) R v Accused (T4/88) [1989] 1 NZLR 660 R v Ball [1960] 61 NSWR 37 R v Camberwell Green Youth Court and Ors Times On Line Law Reports Edition 2W 13 February 2003 42 CASES CITED : Reg v Chen (2002) 130 A Crim R 300 R v Chidley (1956) 73 WN (NSW) 376 R v Coe [2002] NSWCCA 385 R v Davies and Cody (No 2) [1937] VLR 226 Dietrich v The Queen (1992) 177 CLR 292 Re DJX and Ors (1990) 91 Cr App R 36 R v Glennon (1992) 173 CLR 592 R (Al-Fawwaz) v Governor of Brixton Prison [2001] All ER (D) 239 (Dec) R v L (DO) [1993] 4 SCR 419 R v Levogiannis [1993] 4 SCR 475 R v Lowe (1997) 98 A Crim R 300 Reg v Lowery {No 3] [1972] VR 939 R v McHardie and Danielson [1983] 2 NSWLR 733 Reg v Matthews and Ford [1972] VR 3 Reg v Melville (1956) 73 WN (NSW) 579 R v Ngo (No 2) (2001) 124 A Crim R 151 R v Nguyen [2002] NSWCCA 342 R v Riscuta and Niga [2003] NSWCCA 6 RPS v The Queen (2000) 199 CLR 620 Saffron (No 1) v The Queen (1988) 17 NSWLR 395 R v Savvas, Stevens & Peisley (1989) 43 A Crim R 331 R v Smellie (1919) 14 Crim App Rep 128 R v Sparkes (1996) 88 A Crim R 194 R v Stewart (2001) 52 NSWLR 301 R v Taylor (Gary) [1994] TLR 484 R v Watford Magistrates' Court; ex parte Lenman [1993] Crim LR 388 Webb & Hay v The Queen (1994) 181 CLR 41 West v The Queen (1990) 51 A Crim R 317 Zorad v The Queen (1990) 19 NSWLR 91 PARTIES : Regina Phuong Canh Ngo (Appellant) FILE NUMBER(S) : CCA 60484/01 COUNSEL : T Game SC/P Pearsall (Appellant) R Hulme SC/E Wilkins (Crown) SOLICITORS : Selby Levitt (Appellant) S E O'Connor (Crown)
LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70086/98 FILE NUMBER(S) : LOWER COURT Dunford J JUDICIAL OFFICER :
IN THE COURT OF CRIMINAL APPEAL 60484/01
STEIN JA SULLY J LEVINE J
Thursday, 3 April 2003 Regina v Phuong Canh NGO Judgment 1 THE COURT: Introduction 2 The appellant, Phuong Canh Ngo, appeals against his conviction for the offence of the murder of John Newman on 5 September 1994. On 29 June 2001 the jury returned a verdict of guilty and the appellant was sentenced to life imprisonment on 14 November 2001. Two other accused, David Dinh and Quang Dao were acquitted.
Grounds of Appeal 3 The further amended Grounds of Appeal dated 8 November 2002 included 18 grounds. However, at the hearing of the appeal, Mr Game SC appearing on behalf of the appellant, reduced the grounds relied on to the following which are summarised in brief form.
15B. Error in leaving to jury as possible basis of conviction that shooter was T
Summary of the Crown case at trial 4 On the evening of 5 September 1994 John Newman was killed when he was shot twice in the chest. At the time, Mr Newman was standing in the driveway of his Cabramatta home, with his fiancée Lucy Wang. 5 The victim was a member of the Australian Labor Party (the ALP) and represented the safe ALP seat of Cabramatta in the Legislative Assembly of the New South Wales Parliament. In March 1994, Mr Newman had successfully retained pre-selection for the seat for the upcoming 1995 State Election. 6 The appellant was a councillor on the Fairfield City Council and stood unsuccessfully as an independent candidate for the seat of Cabramatta in the 1991 State election. In 1993 the appellant joined the ALP following discussions with various party officials about his political ambitions. From this time the appellant and Mr Newman were considered to be political rivals. The Crown contended that the appellant wanted to become a member of the NSW Parliament and believed that Mr Newman was a barrier to the fulfilment of his ambition. 7 The Mekong Club, established by the appellant, opened in 1993. The appellant was the honorary president of the Club from its inception and at all relevant times. He was not employed by the Club, but it was commonly understood by staff that he was in charge. It was the Crown case that the appellant organised the assassination of Mr Newman through the Mekong Club and club employees. 8 The appellant had the principal use of a white Toyota Camry owned by the Mekong Club. The vehicle was fitted with a fixed car phone. In addition, the Club leased a mobile phone which was used principally by the appellant and by club managers on duty. The practice at the club was to leave the phone on its charger in the manager's office when it was not in use. The appellant also had a mobile phone provided by the Fairfield Council. 9 The individuals alleged by the Crown to have assisted the appellant to carry out the murder plan were David Dinh (Dinh) and Quang Dao (Dao), employees of the club. In addition, a number of witnesses in the Crown case, including T and N had been employees of the club at the time of the murder. 10 At the relevant time in 1994 Dao, one of Mr Ngo's associates and an employee of the Mekong Club, drove a green Ford Fairlane 1985 ZL model, which was registered in his father's name. 11 The Crown case was that the appellant had directed T and N to make inquiries regarding individuals who may be prepared to carry out the murder of Mr Newman and about obtaining firearms for that purpose. In carrying out instructions, T and N spoke to various individuals about the possibility of arranging for someone to kill Mr Newman. These discussions proved ultimately fruitless. A number of firearms were purchased with money from the petty cash fund of the Mekong Club. The firearms and related products obtained were: a .22 sawn off rifle; a .32 automatic pistol and a magazine of bullets; and a small black gun four to five inches long; a Ruger pistol with two magazines, some bullets, a silencer and a manual (later lost or stolen before the murder); a silver .45 Magnum pistol; and a silencer for the .32 pistol. 12 Three sisters who lived in close proximity to Mr Newman's home gave evidence of seeing a Green Ford motor vehicle stopped near Mr Newman's home on the evening of 3 September 1994. It was noted that the car remained for approximately an hour. One of the sisters testified that it would have been possible for passengers in the car to have seen the front gate of Mr Newman's home. Other neighbours gave evidence of seeing a white four-door sedan in the proximity of Bowden Street, close to Mr Newman's home, earlier in the afternoon. 13 Mr and Mrs L were returning to their home in Judith Avenue on the evening of 3 September 1994 at about 9.45 pm. Judith Avenue is close to the street in which Mr Newman lived. The couple noticed a man standing next to a white four-door sedan in Judith Avenue. Mr L said that he immediately identified the man as the appellant and told his wife this. Mrs L testified that although she thought the man looked familiar, she had not initially recognised him as the appellant, however, when her husband commented that the man was the appellant, she agreed that that was who he was. 14 It was the Crown case that the appellant, with others, was conducting surveillance of Mr Newman's home on the night of 3 September 1994 in preparation for an attempt on his life. 15 To support the case that the appellant and his associates were in the proximity of Mr Newman's home, the Crown led expert evidence from a Telstra employee, Mr Wilson. He said that mobile phone records indicated that on 3 September 1994 at 10.36 pm a phone call was made from the Camry car phone to the Mekong Club mobile which lasted 30 seconds. At the time of the call both phones were in cell 12, which covers an area that includes Mr Newman's home. Later, at 10.47 pm a call was made from the Fairfield Council mobile to a landline. The Fairfield Council mobile phone was also within cell 12. 16 On the evening of 5 September 1994, Mr Newman attended the ALP Cabramatta branch monthly meeting at Cabravale Ex-Services Members' Club. The meeting finished at about 9.15 pm and Mr Newman was seen leaving the premises after the meeting had concluded. 17 At approximately 9.30 pm Mr Newman arrived home and parked in his driveway. Ms Wang, his fiancée, came outside to help him put a tarpaulin over his vehicle. It was at this time that she heard a number of shots being fired and saw a single gunman firing shots in the direction of Mr Newman. Ms Wang said that she then saw the gunman run to a car, which she described as a dark green Ford. Mr Derek Mirfin, a neighbour, also reported seeing a car in front of Mr Newman's home. He said that the car was moving slowly along the incorrect side of the road. Other residents reported seeing two cars leave the scene of the shooting. These witnesses had difficulty identifying each of the vehicles but there were reports of a green sedan and a white sedan. 18 A Mekong Club staff meeting was scheduled to start at 7 pm on 5 September 1994, however the meeting started at 7.30 pm. Various employees gave evidence that such meetings were usually informal, but that at this meeting minutes were taken and staff had been sent reminder notices. There was a lack of clear evidence as to the time that the meeting actually concluded. While the minutes recorded 8.45 pm as the finish time of the meeting, estimates ranged from 8 pm to 8.45 pm. Based on the evidence of staff and the fact that the Fairfield Council mobile phone was used for at least 10 minutes to receive a call at 8.27 pm, it was the Crown case that the minutes incorrectly recorded the meeting as having concluded at 8.45 pm and that the meeting in fact concluded at 8.15 pm. Many of the employee statements noted that the appellant arrived late for the meeting at around 7.50 pm, about half way through the meeting.
19 The Crown contended that the appellant had issued instructions to relieve those involved in the plan to kill Mr Newman from their work duties. The Crown case was that Dinh and Dao, in the green Ford, met the appellant, who was driving the white Camry, at the appellant's home. T gave evidence that at 8.31 pm he used the Mekong Club mobile to call his girlfriend MP. After making the call he replaced it in the charger in the manager's office. A little later, the girlfriend tried to call T on the Mekong Club mobile, which was answered by an unidentified man who said that T was unavailable. T deposed that he was telephoned by the appellant, who was calling on the Mekong Club mobile, and that the appellant asked him to bring the Fairfield Council mobile to the appellant's home. It was the Crown case that the evidence of the phone call from T's girlfriend corroborated T's evidence of his possession of the Fairfield Council mobile, rather than the Mekong Club mobile at the time. Telstra records confirm that a call was made from MP's home to the Mekong Club mobile at 8.41 pm lasting 12 seconds. 20 Following the appellant's instructions, T left the Mekong Club and travelled to the appellant's home. There he met with the appellant, Dinh and Dao. T then joined Dinh and Dao in the Ford. They travelled and parked near Mr Newman's home. The Crown contended that the appellant also travelled to the vicinity of Mr Newman's house in the white Camry. The shooting took place at approximately 9.30 pm. 21 The Crown case was that after the killing the appellant collected the murder weapon from Dinh at the intersection of Townview Road and Cabramatta Road and then drove to the Georges River at Voyager Point to dispose of the gun. Voyager Point is a small suburb immediately south of Hammondville. There was evidence from mobile phone records that the appellant was using the Camry phone within the 20 minute period following the shooting and that he drove from the Cabramatta/Bonnyrigg area, through the Liverpool CBD and then south east to Hammondville. The appellant was later seen at the Mekong Club at around 10.30 pm. 22 The appellant participated in two interviews with police, one on 14 September 1994 and one on 14 December 1994. A coronial inquiry into the death of Mr Newman was also held. During the inquest the significance of the Telstra records in indicating movements on the evening became apparent. Following the Inquest, the police were advised by Counsel assisting the Coroner to search the Georges River in the Voyager Point area for the weapon. Police then searched the Georges River at Voyager Point. Neither the appellant nor his counsel were advised that the search was to take place. The police located a pistol in the water. It had been immersed for a period of time. Experts could neither exclude nor confirm that this weapon was used in the murder because of the extent of deterioration.
Summary of the appellant's case at trial 23 The appellant's case at trial was that there were other individuals who may have organised the killing of Mr Newman. The appellant led evidence of some domestic disharmony between Ms Wang and Mr Newman. A neighbour had heard a disagreement between Mr Newman and Ms Wang in May 1994 and from time to time she heard reasonably loud voices emanating from the Newman home. In addition, the appellant led evidence that Mr Newman was not popular with the staff in his electoral office and with his colleagues in the ALP. 24 The appellant also sought to impeach the credibility of key crown witnesses, T and N and to highlight discrepancies in their testimony.
Ground 1 - failure to discharge the jury 25 The appellant submitted that his Honour erred when he did not discharge the jury on 9 May 2001 (the 41st day of the trial). On this day, during the cross examination of a ballistics witness by defence counsel, the prosecutor was reading a newspaper article at the bar table. 26 The 'newspaper' was a photocopy of an article containing a headline "ICAC to probe Viet game club". The concern was that if the jury saw the headline, in the context of the trial, they would believe that it related to the Mekong Club, central to so much of the evidence placed before them by the Crown. They would then relate this to the appellant to his prejudice. 27 In the absence of the jury Mr Nicholson SC, trial counsel appearing for the appellant, referred his Honour to what he had seen the Crown Prosecutor reading. He said that he was sure that it was not intentional but his Honour should remind the prosecutor to be sensitive. Mr Nicholson was concerned with what the jury may have seen. His Honour said to the Crown "I saw you reading it, I didn't see what it was. The way you were holding it I wouldn't have thought the jury would have seen it. Just be careful anyhow". The prosecutor said that he would, however he added that there was no way that the jury could have read the headline. 28 Mr Nicholson then read to the Court a note from his instructing solicitor which said that the forelady of the jury had looked towards the article and spoken to a female juror next to her. The prosecutor stated that he was leaning back in his chair and reading the article and did not believe that the jury could possibly have read it as he had been looking at it from under the lectern. 29 Counsel for the appellant then asked for a demonstration with him sitting in the forewoman's chair. This apparently occurred although we query, with hindsight, whether this was necessarily a wise course to adopt. Mr Nicholson said that he could see the words "ICAC", "probe", "Viet" and "game Club". 30 His Honour then said that he had seen the forewoman and the juror next to her speaking together. However, he did not relate it to what the Crown was reading and he did not see what it was that he was reading. He had assumed that the jurors were commenting on photographic exhibits relevant to the cross-examination then proceeding. 31 The prosecutor suggested to the Judge that if defence counsel was concerned, the proper thing to do was to ask the forewoman whether she saw anything. Mr Nicholson agreed and his Honour acquiesced. Again, we question, albeit with hindsight, to whether this was a wise course to adopt. 32 Be that as it may, the forewoman was then sworn and examined by his Honour. She told his Honour that she could see what looked like the back of a newspaper being read by the prosecutor. She could only see the letters "ICAC". That was all. She spoke to the juror next to her about this and also "a bit of comment about other [unrelated] stuff". 33 Mr Nicholson asked whether the Judge wanted to explore all that was said between the two jurors. His Honour said that he did not think that he should. We can well understand why his Honour would be cautious. 34 The luncheon adjournment was then taken and upon the resumption Mr Nicholson asked that the jury be discharged. 35 He submitted that there was immense prejudice to his client since he was the President of the Mekong Club and, on the Crown case, running the club. Moreover, what had occurred could not be cured by a direction particularly since the forewoman had been called at the request of the Crown, to which he had acceded. 36 The prosecutor again apologised and emphasised that what he did was unintentional. He argued however, that the matter could be cured by a direction. 37 His Honour then ruled on the application and declined to discharge the jury. During the course of giving reasons his Honour said: "The piece of paper which the Crown Prosecutor was reading has now been produced and it is a photostat of a page of a newspaper, the heading of which is " ICAC to Probe Viet Game Club" and the article goes on to refer to an investigation into the Mekong Club. There is no evidence that anyone saw any part of the paper other than the letters "I-C-A-C", or that they could relate it to the accused or to the Mekong Club." 38 His Honour then referred to counsel's submission that the jury should be discharged because a second juror's attention had been drawn to the paper. 39 Dunford J stated the test as follows: "The test for a discharge of the jury in a case such as this is whether the incident is such that, notwithstanding a proposed or actual warning by the trial judge, the incident gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not, or will not, discharge its task impartially." 40 His Honour concluded that the incident did not pose any risk of unfair prejudice to any of the accused (including the appellant). In particular, there was no evidence that anyone saw anything except the letters "ICAC". His Honour expressed doubts that the accused would have been unfairly prejudiced even if the whole of the title had been inadvertently disclosed. 41 The question then arose as to whether a direction should be given to the jury. His Honour's initial view was that it was better if nothing was said. The prosecutor proposed a draft form of direction. Mr Nicholson submitted that a direction be given, "perhaps this one" proposed by the Crown. One other defence counsel agreed to this course while the other preferred that nothing be said. 42 His Honour then gave the jury the following direction: "A concern has been raised about a newspaper article that the Crown Prosecutor was reading at the bar table shortly before lunch. The concern that has been expressed is that whilst the newspaper article had nothing to do with this case, you might speculate that it does and you may speculate that it is prejudicial to the Crown or the defence. I give you a direction, that while the article has nothing to do with the case at all, you must not speculate about it, you must put it out of your minds and confine your attention to the evidence." 43 Mr Game suggested that his Honour did not apply the correct test as to whether the jury should be discharged. He contended that the test should have been posed in terms of impermissible material going before the jury. However he accepts that not a great deal turns on this. 44 The principal concern outlined by Mr Game was that the suggestion of corruption in relation to the Mekong Club constituted evidence of bad character of the appellant and would be very prejudicial in the context of the Crown case. Further, the direction given by his Honour did not dispose of the prejudice. Mr Game submitted that the jury would have been most unlikely to have accepted what the judge said. Further, because the judge did not direct the forewoman not to speak about it to other jurors, it may be concluded that the entire jury would have learned about the newspaper. 45 The submission is an interesting one but purely speculative. It assumes that the jury would ignore his Honour's direction, notwithstanding that it was given with the agreement of trial counsel for the appellant. 46 The fact of the matter is that the only evidence before his Honour was that the forewoman saw only the letters "ICAC". She apparently communicated what she had seen to the juror next to her in a conversation which also included reference to other unrelated aspects of the trial. On the evidence there seems to have been no more than a momentary exchange between the jurors. 47 The note of Mr Nicholson's instructing solicitor and Mr Nicholson's demonstration do not detract from the evidence of the forewoman, the only real evidence before the court. The forewoman saw only the letters "ICAC" and then briefly mentioned something about what she had seen to a fellow juror. She saw no reference to a "Viet Club", let alone the Mekong Club, which was not in the headline.
48 In our opinion, there was simply no evidence before the Court which could lead his Honour to conclude that there was any risk of unfair prejudice to the appellant or the other accused. 49 The Court will not interfere with the exercise of discretion unless it can be shown that the Judge acted on a wrong principle or that there was a miscarriage of justice, R v Ball (1960) 61 SR (NSW) 37, Maric v R (1978) 52 ALJR 631. The advantage of the trial Judge over the Court on appeal is manifest and expressed by Brereton J in Ball (at 41) as follows: "Initially, if allegedly damaging and irrelevant material be volunteered, the matter lies at the discretion of the trial judge. He knows what is being stressed and what is not, he is alive to the temper and the atmosphere of the trial, he can appreciate suggestions and reactions not conveyed by a typed transcript. He is in a much better position than an appellate court to determine what is specious or technical pretext and what is genuine complaint. Therefore, in considering whether or not his discretion was rightly exercised, an appellate court must make due allowance for these factors, and must, as far as it can, place itself precisely in the trial judge's shoes, before it interferes. Before substituting its own discretion for his, the appellate court must be clearly of the view, not that it would have exercised its discretion differently, but that the trial judge manifestly exercised his wrongly." 50 In our view his Honour did not misstate the test to be applied (Webb v The Queen (1993-1994) 181 CLR 41). The type of bias alleged appears to fall within the fourth category mentioned by Deane J in Webb at 74 ¯ disqualification by extraneous information. It consists of knowledge on the part of a juror of some prejudicial but inadmissible fact or circumstance which gives rise to an apprehension of bias. 51 On the evidence, indeed even on the wider material before the Court, Dunford J was perfectly entitled to conclude that there was no reasonable apprehension of bias by the jury because the forewoman saw the letters "ICAC" and spoke briefly to the juror next to her about what she had seen. There simply was no basis to apprehend that the jury would make any connection between the letters "ICAC" on the paper and the Mekong Club or the appellant. There is plainly no foundation for the suggestion that there was a miscarriage of justice. 52 Nor do we accept that his Honour should have interrogated the forewoman further or called the fellow juror. If his Honour had done either he would have run the real risk of complaint that he had improperly separated the jury and impermissibly intruded into the jury's role and deliberations. Any further inquiry of a juror by his Honour would have been fraught with danger. 53 As to the direction to the jury given by his Honour, Mr Game submitted that it exacerbated rather than overcame the prejudice. We do not accept this proposition. The jury were clearly told to put the document to one side since it had nothing to do with the case. They were told not to speculate about it. It was to be put out of their minds. The form of direction was generally supported by Mr Nicholson even though his Honour initially expressed the view that it might be better if nothing was said. 54 We do not accept that the direction exacerbated any prejudice. There is no reason to accept a proposition that the direction was not a sufficient cure to what had occurred. The direction was clear and the jury would have understood it. It cannot be assumed that the jury simply ignored the direction. A fair minded and informed person would perceive the warning of the trial Judge as adequate to combat any perceived bias, Webb at 55. 55 On the issue of the refusal to discharge the jury, there is no material which could lead the court to conclude that his Honour's discretion miscarried. Accordingly this ground of appeal is dismissed.
Ground 2 - the video link evidence 56 This Ground of appeal concerns the successful Crown application at the trial to have the evidence of Mr L and Mrs L given by audiovisual link from a remote location. While the jury, the presiding Judge and counsel could hear and see the witnesses on the video screen, the appellant and the other accused were not permitted to see the witnesses. It seems that in order to overcome any prejudicial inference that might be drawn against the accused, a subterfuge was contrived in the form of a non-operating monitor in front of the accused to give the jury the impression that the accused were seeing the same material as the jury. 57 The appellant submitted that the trial Judge erred both in granting the application by the Crown under the Evidence (Audio and Audio Visual Links) Act 1998, and in restricting the appellant from seeing the faces of the witnesses. 58 Dunford J's judgment on the application is reported: R v Ngo (No 2) (2001) 124 A Crim R 151. His Honour said that he was satisfied that the fears of the witnesses were genuine and that they would probably not give evidence if required to do so in the courtroom in the presence of the accused. He concluded that it was in the interests of the administration of justice to make the order. 59 Dunford J then addressed what he described as the more substantial objection. Both witnesses said that they had met the appellant and were familiar with his appearance from newspapers and television. 60 It was submitted at the trial that since issues of identity were involved, the appellant should be entitled to see the witnesses because otherwise he would not have the opportunity to properly contest that evidence. His Honour said at [18]: "I gave this submission serious consideration, but ultimately rejected it because the issue is not whether Phuong Ngo could identify the witnesses, but whether the witnesses could identify Phuong Ngo. As a councillor and prominent local identity it is apparent that Phuong Ngo would have met many of the local citizens, and it would not be expected that he would remember them all, and I have no doubt that Mr L would come into this category." 61 His Honour noted the general rule in a criminal jury trial that the Crown case be presented in the presence and hearing of the accused. An accused should normally be able to confront his accusers. Dunford J however noted that both statutory and common law exceptions had been made to this rule, eg the Evidence (Children) Act 1997. The trial Judge referred to cases where an accused was not permitted to see an accuser but could still hear what the witness said. 62 His Honour referred to s 20A(a) of the legislation and said that it: "… requires that persons in the courtroom must be able to see and hear the person giving the evidence and vice versa. I am satisfied that the facilities in the present case will be such so that everyone in the courtroom, except the accused, will be able to see and hear the witnesses, and the accused will be able to hear them though not see them. Section 20A is a general provision and it refers to persons in the courtroom in general, without specifying any particular persons in the courtroom, and it does not in terms require that each party must be able to see the witness." 63 The Judge continued: "Moreover, the Act is not to exclude or limit any other law that makes provision for the taking of evidence in this State, and so is not to be interpreted as limiting the operation of Pt 36 r 2A of the Supreme Court Rules . Those Rules still apply and they do not require that every person including every accused be able to see, as well as hear, the witnesses. Part 75 r 8 prevents an order being made under Pt 36 r 2A preventing an accused from "attending" any part of the proceedings, except with his or her consent, but there is no requirement in the rule that the accused must be to "see" each of the witnesses." 64 We set forth the relevant provisions of the Evidence (Audio and Audio Visual Links) Act 1998 (the Act) as amended by Act No 16 of 2000 and in operation at the time of the trial. As to the application of the statute section 5(1A) provides: "This Act is not intended to exclude or limit the operation of any other law of the State or another place that makes provision for the taking of evidence or making of submissions in the State for the purposes of a proceeding in the State." 65 Section 5(2) states that: "Unless a contrary intention is shown, nothing in this Act limits or otherwise affects any discretion that a NSW court or a recognised court has with respect to the conduct of a proceeding." 66 Section 5B is important to this appeal and relevantly states: "(1) Subject to any applicable rules of court and subsection (2A), a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting. (2) The court must not make such a direction if: (a) the necessary facilities are unavailable or cannot reasonably be made available, or (b) the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or (c) the court is satisfied that the direction would be unfair to the party, or (d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission. (2A) … (3) In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so." 67 Also relevant to the appellant's submission is s 20A which provides as follows: "Evidence must not be given, and a submission must not be made, by audio visual link under this Act unless the courtroom or other place where a NSW court is sitting, and the place where the evidence would be given or the submission would be made, are equipped with audio visual link facilities that enable: (a) persons who are at the courtroom or other place to see and hear the person giving the evidence or making the submission, …." 68 It is submitted on behalf of the appellant that the trial Judge erred in granting the Crown application and in restricting the appellant from seeing the faces of the two witnesses. Mr Game submits that his Honour erred in concluding that the granting of the application would not be unfair to the appellant (s 5B(2)(c)). 69 It is submitted that his Honour was not in a position to find, as he did, that the issue was whether the witnesses could identify the appellant and not vice versa. This was because if the accused was prevented from seeing the witnesses' faces, he could not instruct counsel as to whether he recognised them; and if he did, whether there were any matters which might affect their reliability or credibility. This was all the more so because the jury believed that the appellant could see the witnesses. The jury would assess the reliability of the witnesses on the assumption that there was no basis to challenge their credibility. 70 It is further submitted that his Honour was wrong to conclude that the making of the direction was in the interests of the administration of justice (s 5B(3)). In so finding his Honour failed to address himself to the forensic disadvantage suffered by the appellant, who was effectively denied the opportunity to test the witnesses so that their demeanour could be assessed. 71 Mr Game also submitted that his Honour's construction of s 20A of the Act was erroneous and that Part 36 rule 2A of the Supreme Court Rules did in fact require that a party "see and hear" a person giving evidence. 72 Part 36 rule 2A(1) provides: "The Court may give directions for and in relation to the conduct of proceedings, including the evidence, by any audio-visual method or by telephone."
73 Part 75 rule 2(8)(b) provides that directions may not be given under Part 36 rule 2A "that prevents an accused from attending any part of the proceedings." 74 The Crown submitted that the evidence given on the voir dire by Mr and Mrs L as to their fears, supported by the evidence of Superintendent Kaldas, was sufficient to justify his Honour's decision to allow them to give evidence via video link. Accordingly, his Honour's conclusion in para [15] of the judgment revealed no appellable error. 75 So far as unfairness to the appellant is concerned, the Crown submitted that Mr L was asked before the jury if he had ever met the appellant face to face and he replied in the negative. There was no evidence to suggest that the witnesses had any personal dealings with the appellant. Mr L said that he had seen the appellant on more than 20 occasions in the local area, in restaurants, at community functions, in the streets as well as on television and in the newspaper. It would have been obvious to the appellant, from the voir dire and trial evidence, as well as from the inquest held in 1998, that the witnesses lived locally. The appellant knew that they both worked at a garage in the area. If the appellant had had any dealings with them significant enough to raise credibility issues, it was extremely unlikely that he would not have been able to give instructions until he saw their faces. Moreover, there was nothing to prevent the solicitors for the appellant from making inquiries. If it was thought that the non-publication order posed a barrier, an application could have been made to the Court. None was made. 76 The Crown submitted that s 20A is directed only to the physical standards that must be met by the equipment. The provision does not seek to usurp the discretion of the trial Judge to make appropriate orders as to who may view the screen. 77 As to Part 36 rule 2A, it is submitted by the Crown that his Honour was correct and the rule does not require that the accused must be able to "see" each of the witnesses. 78 The Crown makes the point that while it is a fundamental common law right of an accused to have the Crown case presented in his presence and hearing, a fair trial involves fairness to the Crown as well as to the accused, see McKinney v R (1991) 171 CLR 468 at 488 and R v Lowe (1997) 98 A Crim R 300 at 318 - 319. It was essential that the two witnesses be able to present their evidence to the best of their ability and not in circumstances where they would be too intimidated to do so. The trial judge recognised the risk of unfairness to the appellant and carefully considered all matters of fact and law raised in the application. 79 The Crown submitted that it is a reasonable assessment of the complaint of the appellant under this ground that it is not so much concerned with the direction made under the legislation, but with the fact that the appellant was not permitted to see the witnesses. The appellant claims that this was unfair. 80 In R v McHardie and Danielson (1983) 2 NSWLR 733 at 739 the Court of Criminal Appeal said: "… the procedure of a normal criminal jury trial provides for the presentation of the Crown case in the presence and hearing of the accused, and includes the right of the accused to test the evidence by cross-examination, either by himself, or by his legal representative. It also includes the right to give evidence (or to make a statement), the right to call evidence, and the right, either by himself or his counsel, to address the jury. We think it correct to describe these procedural steps as "rights", which may or may not be exercised by the accused at his option." 81 It may be noted that McHardie was regarded as having waived the right when he escaped from custody during the trial. 82 Many examples were provided to the Court where procedural measures that depart from the traditional concept of the "right of confrontation" were adopted. Some are based upon the interests of the administration of justice, some upon the need to protect witnesses. The Court usually seeks to balance all of these considerations with the right of the accused to a fair trial. Examples include the use of pseudonyms for informers (R v Savvas (1989) 43 A Crim R 331)), see also Re Mr C (1993) 67 A Crim R 562 at 564 - 565. 83 The legislature has also enacted measures to protect vulnerable witnesses, for example the Evidence (Children) Act. Modern technology has provided opportunities to receive the evidence of witnesses from a place remote from the Court. The Evidence (Audio and Audio Visual Links) Act permits the departure, in certain circumstances, from the traditional concept of the presence of witnesses in Court so that the accused many confront them. The measures permitted by the Act seek to accommodate the rights of the public, witnesses, and the accused. 84 Before examining the proper application of the NSW legislation, it is useful to consider the approach of other courts to similar issues. 85 The earliest authority (and referred to by his Honour) is R v Smellie (1919) 14 Crim App Reps 128. The Court of Criminal Appeal was hearing an appeal against conviction of a father for an assault on his daughter. Before the daughter was called to give evidence the appellant was removed from the dock to sit on its stairs so as to be out of sight of the witness while she gave her evidence. Coleridge J delivered the judgment of the Court, which is succinct in the extreme. His Lordship said: "If the judge considers that the presence of the prisoner will intimidate a witness there is nothing to prevent him for securing the ends of justice by removing the former from the presence of the latter." 86 A helpful case is R v Taylor (Gary) (1994) TLR 484 Court of Appeal 17 August 1994. A witness was permitted to give evidence behind a screen so that the accused could not see her although they could view her on a video monitor. The judgment of the Court was delivered by Evans LJ. The Court accepted that it was a fundamental right of an accused to see and know the identity of his accusers. This right should only be denied in rare and exceptional circumstances. [Subsequent authorities have doubted the breadth of this proposition]. 87 The Court held that the decision was pre-eminently one for the trial judge's discretion. Five factors were seen as relevant to be considered:
(i) There must be real grounds for fear of the consequences if the evidence is given and the identity of the witness revealed.
(ii) The evidence must be sufficiently relevant to make it unfair to the Crown to make it proceed without it. The creditworthiness of the witness could be relevant to this.
(iii) The Court must be satisfied that the creditworthiness of the witness has been investigated and disclosed.
(iv) The Court must be satisfied that there would be no undue prejudice to the accused, although some prejudice is inevitable even if it was only the qualification placed on the right to confront a witness as accuser.
(v) The Court could balance the need for protection of the witness against unfairness to the accused. 88 It is this last notion which permeates many of the cases, for example, R v Watford Magistrates Court ex parte Lenman [1993] Crim LR 388. This case involved the use of a screen coupled with the distortion of the voices of the witnesses. The Court said that the balance of fairness was a statement of general principle and not confined to cases involving child witnesses. 89 Another example is Re DJX and Ors (1990) 91 Cr. App R 36. In this case the balancing of fairness was said to include fairness to the prosecution and its witnesses, as well as to the defendants (see Lane LCJ at 40). Both of these decisions stressed the discretionary nature of the order. 90 In R v Governor of Brixton Prison [2002] 1 AC 556 the House of Lords discussed these authorities, including Taylor. Lord Hutton referred to the tension between the supposed "fundamental right" of an accused and the five discretionary factors enumerated in Taylor, which might modify that right. He thought it best to emphasize that justice was best served by striking a balance of fairness between all the parties. Given the acceptance of the principles established in Taylor his Lordship doubted that departure from the 'right' would only occur in rare and exceptional cases. 91 A more recent English case is R v Camberwell Green Youth Court and Ors, Times on Line Law Reports Edition 2W 13 February 2003 p 42. This is a decision of the Queen's Bench Divisional Court of 4 February 2003 constituted by Rose LJ and Henriques J. The case involved the receipt of evidence by live video link and the question of whether the enabling legislation breached the right to a fair trial under Article 6 of the European Convention on Human Rights. The Court held that neither a live link, nor a video recording of evidence infringed the article provided the defendant's lawyers could see as well as hear the witness and cross-examine [48]. 92 The Court noted a submission that the reassurance to a witness from a live link or video recording was an important safeguard to the rights of witnesses, which needed to be balanced when considering the rights of a defendant. Although as a general principle witnesses and defendants should be present and in sight of each other, there was no absolute right in English law to face to face confrontation. 93 Before turning to the Australian decisions, it is instructive to refer to the jurisprudence in Canada, the United States and New Zealand. The Supreme Court of Canada considered the issue in two cases in 1993: R v Levogiannis [1993] 4 SCR 475 and R v L (DO) [1993] 4 SCR 419. The decisions were delivered by L'Heureux-Dubé J. Provisions in the Criminal Code permitted the interposition of a screen and the receipt of remote evidence in certain circumstances. The question of whether this was contrary to the Charter of Rights and Freedoms was answered in the negative. The "right" of confrontation was held not to be absolute but subject to qualification in the interests of justice. In the necessary balancing exercise the defendant's right to face his accusers in court could be outweighed by competing considerations. Levogiannis was another screen case, however it should be noted that unlike here, the screen did not prevent the accused seeing the witness but only the witness seeing the accused. 94 The United States' position is premised on the Sixth Amendment to the Constitution which provides an accused with the right to confront the witnesses against him. However, this right can be forfeited by disruptive behaviour, cf R v McHardie and Danielson at 739. 95 In Maryland v Craig 497 US 836 (1990) the United States Supreme Court held that evidence received by way of one-way closed circuit television was not contrary to the Sixth Amendment to the Constitution. There was no absolute right to a face-to-face trial with witnesses. The majority judgments identified the key issue as being the ability of the accused to ensure the reliability of such testimony by rigorous adversarial testing. 96 In New Zealand R v Accused (T4/88) [1989] 1 NZLR 660 involved the imposition of a screen between a child witness and the accused. Cooke P opined that the interests of justice demanded that Courts (in the absence of legislation) modify procedures where necessary to protect child witnesses. The procedure adopted at the trial did not prejudice the accused who had a fair trial. McMullin J pointed out that, unlike the Sixth Amendment, the New Zealand Crimes Act gave an accused (as did the common law before it) the right to be present at his trial, but not necessarily a right to confrontation [670]. "Present" in the statute was not to be construed in a confrontational sense. So long as the accused had the right to remain in court throughout his trial in a position where he could hear the proceedings, understand them and communicate with his counsel, there was no breach of the provision. 97 We turn now to the Australian authorities. McHardie has already been mentioned as setting forth the basic position in a criminal trial. R v West (1990) 51 A Crim R 317 concerned a rape trial in Queensland where the complainant was screened from the appellant during her evidence. The Queensland Court of Criminal Appeal concluded that the procedure did not result in the accused being unfairly prejudiced. While a balancing was needed, it did not require the total elimination of prejudice to an accused (321). Any potential prejudice was amply covered by the directions given to the jury. 98 In R v Jarvie (1995) 1 VR 84 the appeal concerned the anonymity of undercover police operatives. The Court held that a balancing exercise must be undertaken between aspects of the public interest, including the entitlement of an accused to a fair trial. 99 Brooking J observed however that a fair trial did not mean a perfect trial, "free from possible detriment or disadvantage of any kind or degree to the accused", see also Jago v District Court (1989) 168 CLR 23, R v Glennon (1992) 173 CLR 592 and Dietrich v R (1992) 177 CLR 292. 100 The last case to mention is R v Sparkes (1996) 88 A Crim R 194 at 217 - 218. This was another case where a screen was interposed between the complainant and the accused so that the witness could not see the accused and vice-versa (at 216). In the Supreme Court of Tasmania Underwood J considered that it was appropriate and permissible that he make the order. His Honour saw no prejudice to the accused in the arrangement proposed whereas, if the screening direction was not made, it was likely that justice would not be done to the complainant, who would not be able or would be unwilling to give her evidence properly. 101 For completeness we mention that the Crown Prosecutor also referred the court to the decision of the International Criminal Tribunal for the Former Yugoslavia, Prosecutor v Tadic, Unreported, 10 August 1995. In that proceeding the facial image of witnesses was withheld from the defendant. The Tribunal discussed many of the authorities referred to above and set forth the principles which it saw as applicable (see paras 62 - 66). 102 We turn to the subject legislation. It provides both the machinery by which the Court may receive evidence by either audio or audiovisual links and sets out the circumstances in which it is appropriate for the court to receive such evidence. First enacted in 1998 the statute has evolved significantly in accordance with amendments made by Act No 16 of 2000, relevant to these proceedings, and Act No 46 of 2001, which were not applicable to the subject trial. 103 It is important to note that the Act does not seek to be the exclusive provision for the means of taking evidence in proceedings. We have already set forth ss 5(1A) and (2). They make it plain, for example, that other laws continue to apply and are not limited by the Act. One example is the provisions in Part 4 of the Evidence (Children) Act. Another, which has relevance to this appeal, is Part 36 rule 2A of the Supreme Court Rules. 104 The key provision for this appeal is s 5B. Again, it may be noted that the introductory words of ss (1) of s 5B stress that the section is "subject to any applicable rules of court …". It should also be observed that the court can give a direction to take evidence by audio or audiovisual link either on its own motion or on the application of a party. 105 Section 5B(2) contains four pre-conditions to the making of any such direction. Subparagraphs (a) and (b) are not here relevant. Subparagraph (c) is crucial and we shall return to discuss it. Subparagraph (d) is important and the appellant challenges, albeit rather faintly, his Honour's ruling in relation thereto. It appears to the Court that there was ample evidence before Dunford J on the voir dire to justify his conclusion that the fears of Mr and Mrs L were genuine. 106 In our view, his Honour was entitled to conclude, given that the fears of the Ls' were genuinely held, that they would probably not give evidence if required to do so face to face with the appellant in the courtroom. Although sub-para (d) is a pre-condition to the exercise of the power, it involves a discretionary assessment. His Honour saw and heard the evidence on the voir dire and was in a much superior position to this Court to make the necessary assessment. The nature of the subject matter, whether the Ls' genuinely held fears for their safety and that of their family would prevent or impede them from giving adequate evidence in court, is pre-eminently one for a trial judge and this court would not interfere unless the principles enunciated in House v The King (1936) 55 CLR 499 at 504 - 505 were breached. No such breach is apparent. 107 Accordingly, we may proceed to subpara (c), which is critical. There are some tensions between this clause and s 5B(3) but we think that they dissolve if the Court entertaining such a direction, on its own motion or on application, first considers whether the preconditions under s 5B(2) are satisfied. It is only if they are satisfied that the court visits s 5B(3). 108 Making a direction that the evidence of an accusing witness be received by audiovisual link external to the courtroom must, by its very nature, involve unfairness to an accused because it deprives him or her of a face-to-face confrontation with the witness. The provision cannot mean any unfairness, however small. The Court must consider the degree and effect of the unfairness. In a criminal trial, the best measure is whether the making of a direction will cause the trial to be an unfair one to the accused. An accused person has the fundamental right to a fair trial. A direction should not be made if it would mean that an accused could not have a fair trial. 109 The appellant argues, with some force, that the unfairness of the direction was compounded because the appellant was not permitted to see the faces of the two witnesses on the monitor. The accused only heard the evidence while everyone else in the Court, including the jury, saw the video screen. Of course, the appellant's legal representatives could view the screen. 110 The core of the appellant's complaint is his inability to give instructions on whether he recognised either Mr L or Mrs L and whether that recognition would lead to cross-examination concerning their reliability or credibility. 111 The question of whether Mr L had met the appellant presents a curious situation. On the voir dire when asked by counsel for the appellant if he had ever met the appellant face to face, he said that he had. This answer was not further explored. 112 However, before the jury, he was asked the same question and replied in the negative. In fact, there was no evidence to suggest that either of the witnesses had any acquaintance with the appellant or any personal dealings with him. Mr L said that he had seen the appellant on more than 20 occasions in the local area, in restaurants, at community functions, in the streets and on television and in the newspaper. 113 What is plain is that from the inquest in 1998 onwards, it would have been apparent to the appellant that the two witnesses lived in the local area. Besides the inquest, they had given evidence on the voir dire in the aborted trial before Wood CJ at CL when a similar order was made to that currently under review. They had also given evidence at the committal. It seems to us most unlikely that the appellant would, in all of the circumstances, have been unable to give instructions concerning the credibility of the witnesses until he saw their faces. One thing is clear, the appellant knew that both Mr L and his wife worked at a local garage. 114 The appellant's solicitors could, and perhaps did, make inquiries relating to the witnesses. While the suppression order may have been thought to deter any such inquiries, even if it did, an application could have been made to the Court to appropriately relax it. None was made. 115 For his Honour what was important was whether the witnesses recognised the appellant and not the reverse. Certainly Dunford J was entitled to infer that the appellant, with his local prominence, would have met many many people in the area. The appellant would obviously not remember them all and Mr L was likely to be one such person. Importantly no credibility issue relating to either witness was raised by the appellant's trial counsel. One would have thought that complaint would have been made if the objection had any cogency. 116 As the Crown points out, the appellant's submission seems to be premised on nothing more than mere possibilities. That is, it is possible that the appellant might by chance have recognised the Ls if he had seen them on the video screen. If this possibility had occurred, then it might be possible that he knew them adversely. In that event, it may then be possible that some material might be available to confront the witnesses in order to attack their credibility. Bearing in mind the absence of complaint by the appellant's trial counsel, all this seems inherently improbable. The more likely situation is that the appellant did not know either witness except to the extent that, like vast numbers of the local citizenry, he may have come across them as constituents. The appellant would most likely have no real chance of recalling anything relevant about either of them. 117 The appellant submitted that the trial judge did not have regard to the forensic disadvantage suffered by the appellant because he was not allowed to see the witnesses. His Honour's reasons however make it clear that he did consider whether the proposed procedure would prevent the appellant from properly contesting the evidence. Dunford J said that he gave the issue "serious consideration". 118 In approaching the issue of unfairness to an accused, it is reasonable to start with the proposition that confrontation is a fundamental right of an accused, who is entitled to see and know the identity of his accusers. Yet, as observed by the House of Lords in R v Governor of Brixton Prison, there is clearly tension between this right and the discretionary decision that may be made to erode that right. 119 The right is by no means an absolute one and it has been accepted for a considerable time that misconduct of an accused can lead to a waiver of the right. Even in the U.S., where the right of confrontation is entrenched in the Sixth Amendment, the Supreme Court has held that the right to a face to face trial with witnesses is not absolute. In England and Wales the right to face to face confrontation is also not an absolute one. The same appears to be the position in Canada and New Zealand. 120 Not infrequently jurisdictions have enacted legislation which has the effect of eroding the right to confrontation. Statutes concerning the receipt of the evidence of children in sexual cases are an example. The protection of informers is another. Advances in technology have also spawned legislation permitting the receipt of evidence by live audio and video link. The subject Act is one such example. The Act seeks to temper the effect that the provision of remote evidence may have on a trial and on its participants, by outlining prerequisite considerations and protections to any such direction. The unfairness precondition in s 5B(2)(c) is one such protective mechanism, particularly important in a criminal trial. 121 What the local and overseas authorities make clear is that the need to protect witnesses must be balanced against the unfairness to the accused. One of the important factors often seen as critical to such a decision is the question as to what is demanded by the interests of justice. This notion seems to be embraced by s 5B(3) to which we will refer presently. 122 Many of the cases discussed earlier involve situations where the accused can still 'see' his accuser, whether in Court or on a video screen. The appellant stresses that here, although the appellant's legal representatives could see the witnesses on the screen, the appellant was not permitted to do so. However, it may be pointed out that a number of the authorities discussed above do involve the accused not 'seeing' his accuser, see eg R v Smellie, R v Accused, R v Camberwell Green Youth Court, R v Jarvie and R v Sparkes. 123 In our opinion, there was no error by his Honour in the exercise of the discretion involved in s 5B(2). His Honour considered the unfairness to the appellant and balanced it with the position of the witnesses. We are unable to conclude that his discretion miscarried in this part of the exercise. 124 This means that we can now address the requirements of s 5B(3). Where a party opposes a direction being made, the court "must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so". This places an onus on the prosecution, which made the subject application, to so satisfy the Court. The phrase, "in the interests of the administration of justice" is a broad one and not susceptible to precise definition. The particular context of the use of the phrase will provide assistance as to its content. In the subject context it must include the impact on the parties and the trial of making or not making the direction. This involves assessing the impact on the fairness of the trial for the accused. It also involves the issue of the fairness to the witnesses and to the Crown. There may be many things which can be said to be relevant to the interests in the administration of justice. Some will be interests of the accused, some of a witness, some of the Crown and some of the general community or the public interest in a fair and efficient system of criminal justice. However, what appears to be required is a balancing of these interests. 125 Dunford J said that, absent a direction of the nature sought by the Crown, it was probable that the Ls' would not give evidence if required to do so face to face with the appellant. He added that even if they did, because of their genuine fears of the appellant, they would not do justice to themselves as witnesses. His Honour concluded that it was therefore in the interests in the administration of justice to make the order. 126 In our opinion, it was legitimate for his Honour to conclude that he was satisfied that the making of the direction was in the interests of the administration of justice. His Honour carried out a discretionary balancing of the relevant considerations and his decision involves no appellable error. The unfairness to the appellant was clearly balanced with the fears of the witnesses and the probability that they would not give evidence if the direction was not made. 127 Two issues still need to be addressed under this ground. First, the role of s 20A and second, the applicability of the Supreme Court Rules, in particular whether Part 75 rule 2(8) excludes the making of a direction under Part 36 rule 2A. 128 Dunford J held that s 20A was a general provision and referred to persons in the courtroom in general without specifying any particular persons. It did not in terms require that each party must be able to see the witness. His Honour said that the provision is directed rather to suitable equipment being provided. 129 In our view, this is the correct approach to the provision for a number of reasons. 130 First, s 20A appears in the "Miscellaneous" provisions of the Act. Many of the provisions in this Part are mechanical and procedural, especially ss 20A to 20F. 131 Secondly, by contrast it is Part 1A (and s 5B) which sets out the preconditions which the court must consider when exercising its discretion in relation to the making of a direction under the Act. 132 Thirdly, there was a need for the legislation to provide for minimum technical requirements for an audiovisual link and this was met by s 20A. 133 In our opinion, s 20A does not usurp or limit the discretion of a trial judge to make appropriate orders as to who may view the screen. His Honour was correct in his approach to s 20A that it was a general provision which did not require the appellant to see the witnesses. 134 Turning to the Supreme Court Rules, the Act makes it plain that their application is not precluded, see ss 5(1A), (2) and 5B. Part 36 rule 2A(1) provides that the Supreme Court may give directions in relation to the giving of evidence by an audiovisual method or by telephone. The question raised by the appellant is whether Part 75 rule 2(8)(b) prevents a direction being given which restricts an accused "seeing" the remote witness on the screen. This is said to be so because such a direction "prevents an accused from attending" a part of the trial proceeding. The question is answered by determining what is meant by "attending" in the rule. In our opinion "attending" ought be given its plain and ordinary meaning. 135 Accordingly, it means that a direction should not be given which prevents an accused from being present at the proceedings. "Attending" does not impart any requirement that an accused not only be present in court but also able to see and hear everything. In our opinion, the reasoning of McMullin J in R v Accused is applicable. 136 It cannot be concluded that the appellant was prevented from attending that part of the trial in which the evidence of Mr and Mrs L was taken. 137 Accordingly, we are of the opinion that Ground 2 should be rejected.
Ground 3 - Admission of identification evidence of Mrs L 138 Under this ground the appellant makes a two-pronged attack on the admission of the evidence of Mrs L. First, it is submitted that his Honour should have rejected her evidence that she recognised the appellant on the evening of 3 September 1994 standing near a white sedan in Judith Street, Cabramatta, close to the house of Mr Newman. The basis for the application was s 137 of the Evidence Act 1995. It was argued that its probative value was outweighed by its unfair prejudicial value. The second line of attack follows his Honour's admission of the evidence. At the close of Mrs L's evidence, junior counsel for the appellant made an application that her evidence be withdrawn. His Honour refused the application. 139 The importance of the evidence, if accepted by the jury, is that it supported the Crown case that the appellant was carrying out surveillance on the Newman house only two nights before the murder. Mr L also gave evidence of his recognition of the appellant. 140 Mrs L said in evidence that she was sitting in the back seat of the car being driven by her husband. She was holding her sleeping baby son. As the car was turning into Judith Street she saw a man standing beside a white four-door sedan car. She recognised him as someone familiar. Then her husband said that it was Councillor Phuong Ngo. She then looked again and recognised the man as the appellant. He was about a metre away and moving as if to cross the road. She had previously known the appellant from seeing him in the streets of Cabramatta and his photograph in the local papers. 141 Mrs L's cross-examination confirmed that her first observation was of someone familiar. Her second observation followed her husband's remark. She said that when she looked at the man again, it looked like Ngo. 142 Mrs L conceded that she could not be certain because she only got a glimpse of him. She accepted that she was influenced by her husband's identification. Finally, she agreed that she could have easily been mistaken. 143 In ruling against the application to reject the evidence under s 137, his Honour referred to the distinction between identification evidence and recognition evidence. Mrs L's evidence was of the latter kind since it was the evidence of the recognition of a person previously known to her. 144 His Honour found that the evidence had its limitations but they were as obvious to a layperson as to a lawyer. Clear warning would be given in the Summing-Up and his Honour did not see that the jury would have any difficulty. Accordingly, there was little risk of unfair prejudice to the accused. 145 The evidence was not without some probative value, said his Honour, because if accepted, it tended to confirm the recognition of the appellant by Mr L as the man outside the car who they both saw. The fact that the recognition followed a suggestion from another person should not preclude its admission. 146 Dunford J concluded that while the probative value of the evidence was limited, it was not negligible or insignificant. It was evidence of a circumstantial nature which, to a limited degree, confirmed the recognition allegedly made by her husband. Its probative value was not outweighed by the danger of unfair prejudice. 147 On 4 June 2001 his Honour refused to accede to the application made on behalf of the appellant to withdraw Mrs L's evidence. His Honour said that the assessment of her evidence was a matter for the jury. 148 Mr Game submitted that his Honour's rulings were erroneous. The recognition evidence of Mrs L was extremely weak and any probative value that it had was far outweighed by the prejudice to the appellant. It should have been rejected under s 137. Alternatively, any probative value that it had before cross-examination was gone by the end of her evidence. By contrast the prejudice to the appellant was great. The evidence was even more prejudicial given that it was left as evidence corroborating that of Mr L. Accordingly, his Honour was wrong not to withdraw Mrs L's evidence. 149 Directions regarding Mrs L's evidence were given in the Summing-Up. Her evidence was summarised in detail. Very extensive warnings were given by his Honour on the special caution needed in accepting identification evidence in the context of the evidence given by Mr and Mrs L, see SU 16 - 20. His Honour added that: "In relation to both witnesses, you should bear in mind that it was night, you should have regard to the state of the street lighting, that they were in a moving car and were not expecting to be making an observation of a relevant or important matter which only became significant, if at all, two days later, and it was some time after that that they were required to make detailed statements to police. Because they were moving, their period of observation of the person they saw was very limited. In the case of Mrs L …, there is the added consideration that she only made her identification after her husband made the remark "There's Phuong Ngo", thereby suggesting the identification to her. These are the matters which you are bound to consider when deciding whether you will accept the identification evidence in this case is reliable."`- 150 The Crown concedes that the evidence of Mrs L had limited probative value, as found by his Honour. Nonetheless, it is submitted that the limitations in the evidence were obvious to any layperson, as his Honour observed. The warnings given to the jury in the detailed directions were comprehensive and included specific mention of Mrs L's recognition being made only after her husband's remark suggesting identification. In the circumstances, the Crown suggests that there was little danger of unfair prejudice to the appellant. 151 The remarks of McHugh J in Festa v The Queen (2001) 208 CLR 593 at [51] are apposite. His Honour said: "But the weakness of relevant evidence is not a ground for its exclusion. It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence. And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task." 152 We do not see, given that the shortcomings of Mrs L's evidence were plain for all to see, coupled with his Honour's directions, that the jury were likely to give her evidence more weight than it deserved. Nor could it be concluded that the nature and content of Mrs L's evidence was likely to inflame the jury or divert it from its task. See also R v Nguyen [2002] NSWCCA 342 at [18] and R v Coe [2002] NSWCCA 385 at [33]. 153 His Honour was entitled to admit the evidence of Mrs L notwithstanding that it was weak. Further, his Honour was entitled to conclude that its probative value, although limited, was not outweighed by the danger of unfair prejudice to the appellant. Assessing the evidence of Mrs L was not a difficult matter and its limitations were obvious and drawn to attention in the Summing-Up and doubtless in the closing address by counsel for the appellant. The jury would be able to assess to what extent, if at all, Mrs L's weak evidence of recognition provided any support for Mr L's evidence. 154 In our view this Ground of appeal should be rejected.
Ground 4 - Inadequate directions on identification evidence of Mr and Mrs L 155 This ground follows on from Ground 3. Mrs L's recognition of the appellant was made only after it had been suggested by her husband. It is submitted on behalf of the appellant that her evidence was equivocal and left to the jury as supporting that of Mr L. 156 His Honour directed the jury that the fact that more than one witness had identified an accused may be taken into account in determining the weight to be placed on their evidence. His Honour added an important rider that the jury "must clearly understand that such a fact does not mean that there is necessarily less chance that a mistake has been made. Two or more honest witnesses can be just as mistaken as one". 157 The appellant accepts the general proposition that one identification may be strengthened by another. However, Mr Game submits that it has little application in circumstances where the witness whose evidence is strengthened is the witness who suggested the identification to the other person. This danger, submits counsel for the appellant, should have been specifically drawn to the jury's attention. 158 With regard to this submission, it should be recorded that his Honour was not asked to direct the jury in such terms. No complaint was made. 159 Notwithstanding, it is plain from a reading of the Summing-Up that his Honour comprehensively warned the jury of the dangers of identification evidence, both in general terms and concerning the particular evidence of Mr and Mrs L in the trial. 160 His Honour specifically directed the jury that there was an added consideration regarding the evidence of Mrs L. This was that she only made her identification of the appellant after her husband made the remark "There's Councillor Phuong Ngo", thereby suggesting identification to her. 161 As mentioned earlier, his Honour reviewed the evidence in great detail, including that of Mr L and Mrs L. The summary included all evidence pointing both towards and against reliability. In his summary of the evidence his Honour specifically reminded the jury that Mrs L's recognition of the appellant came only after the statement of her husband, and also of her concession in cross-examination that she could not be certain. 162 In our view, his Honour's directions were adequate, especially since counsel for the appellant did not raise with his Honour any concern that he had for the directions. 163 While we are of the opinion that leave to rely upon this ground ought be refused, it is plain that the ground has, in any event, no substance and should be rejected.
Ground 8 - inadequate directions on evidence of T and N 164 The Ground is: "The judge's directions to the jury as to the caution with which they should approach the evidence of the witnesses T and N were inadequate in the circumstances." 165 The submissions of the appellant take as their starting point the proposition that both T and N were accomplices. 166 The Evidence Act does not define who is to be regarded as an accomplice. Section 165(1) of the Act, dealing with the subject matter of warnings about unreliable evidence, speaks of, inter alia, "a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to" the proceeding in which that witness is called to give evidence: s 165(1)(d). 167 In the case of such a witness, the obligations of the trial Judge are set out, as follows, in s 165(2), (3) and (4): "(2) If there is a jury and a party so requests, the judge is to: (a) warn the jury that the evidence may be unreliable; and (b) inform the jury of matters that may cause it to be unreliable; and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information." 168 Over-arching those specific statutory obligations is the general power, and by logical extension the general obligation, that are preserved by s 165(5) which provides that the other provisions of s 165 do not affect "any other power of the judge to give a warning to, or to inform, the jury". This entails what Howie J described in Reg v Stewart (2001) 52 NSWLR 301 at 327[120] as "a considerable overlap between the common law and the provisions of the Act" in connection with the giving of warnings to juries in criminal trials. 169 At the appellant's trial a s 165 request was made, and so it became the duty of the learned trial Judge to comply with the requirements of s 165(2), bearing in mind the flexibility made available in that connection by s 165(4). [It is unnecessary to tarry over s 165(3) since it is plain that the learned trial Judge accepted, and correctly so as we respectfully think, that in a trial such as that of the appellant, a s 165 warning, if requested, could not fairly be refused.] 170 The Summing-up, inclusive of applications for and rulings upon further directions, occupied five sitting days. The transcript of the Summing-up, inclusive of those applications and rulings, occupies 443 typescript pages. 171 At page 10 of the Summing-up the trial Judge told the jury that there were three particular types of evidence to which his Honour would be referring: "The first is what is called hearsay evidence. The second is the evidence of a person criminally concerned in the events giving rise to the present proceedings, commonly referred to as the evidence of accomplices, or accomplice evidence, and the third is what is commonly referred to as identification evidence." 172 Having given directions concerning hearsay evidence, his Honour gave the following directions concerning what his Honour had described, in short-hand, as accomplice evidence: "The second type of evidence that may be unreliable is the evidence of persons engaged in a criminal activity relating to the proceedings, or accomplices. In this regard, I am referring to the evidence of T and N. Also Robert Morris, who was, it is claimed, involved in dealings concerning the purchase of the Ruger and the Magnum, and the approach to H. Also CC, Tong Ngoc, and M, but particularly N and T. They have each received indemnities and/or undertakings in respect of their participation in the offence, and that is a further ground for caution on your part in assessing their evidence. Like the other warning I gave you about hearsay evidence, this is a direction which is given in every case in which the Crown relies on this type of evidence: that is, the evidence of a person criminally concerned in the events giving rise to the proceedings. It is not given in this case because I have not formed any view concerning the evidence which witnesses have given. Such a direction must be given in every case in which the Crown relies on the evidence of a person who himself participated in some way in the criminal activities associated with the events with which the accused has been charged. Once again, the need to give up [sic] a direction arises because the courts have, over the years, accumulated a deal of experience concerning the reliability of evidence given by such persons. That experience would not readily be known to general members of the public such as yourselves. That experience has shown that the evidence given by such persons is often unreliable. I do not intend to suggest that their evidence is always unreliable. My purpose in giving these directions is only to warn you that the evidence of such a person may be unreliable and for that reason alone you must approach that evidence with considerable caution. There are, no doubt, many reasons why the evidence of such a person may be unreliable. It is only natural, you may think, that an accomplice or a person associated in some way with criminal activity may want to shift blame from himself onto others, and to justify his own conduct. In the process, such a person may construct untruthful stories which tend to play down his own part in the crime and to play up the part of others, even to blaming quite innocent people. Experience has shown that, once having given that version to the police, such a person may feel that he is locked in to that version and that he is bound to relate the same version when giving his evidence. In the present case, as I say, each of the persons concerned has been given undertakings and/or indemnities to the effect that they will not be prosecuted for their involvement in the murder of John Newman or any previous attempt on his life or any agreement to murder him. Moreover in each case the agreement or undertaking states that it is conditional on them cooperating with the authorities, giving evidence against these accused, and that such evidence be the truth, the whole truth, and nothing but the truth. It follows that once they have given a version to police or to the Crime Commission they may feel that if they change their evidence or did not come up to what they had previously said it may be claimed that their evidence was not the whole truth and that they may be in danger of losing their indemnity. This may, therefore, be a further reason for them to feel locked in to their original version to the authorities, even if it contained inaccuracies, or even if it were substantially untrue. In assessing their evidence, therefore, you have to take heed of the warnings I have just given you that their evidence may be unreliable. You also need to look to see whether their evidence is supported or confirmed by any other evidence which indicates that their evidence is true, and what you must look for is evidence from an independent source which tends to show not only that the crime was committed but that these three accused were implicated or involved in it." 173 What was thus said by his Honour was, in our opinion, ample to satisfy the precise statutory requirements of s 165(2). The submissions of the appellant did not contend, indeed, to the contrary. The appellant's submissions focused, rather, upon the way in which his Honour dealt thereafter with the matter of corroboration. 174 Following immediately upon the directions quoted previously his Honour gave the following directions respecting corroboration: "Such evidence may include, depending on which parts of it you accept and what you make of it, such things as the evidence of other witnesses concerning the comings and goings of those allegedly at the Mekong Club on the night of 5 September 1994; the telephone calls on that evening, including the locations from where the calls on mobiles were made and received, including the last call from the Camry car phone in the area of Heathcote Road, combined with the finding of the Beretta in the Georges River; and the ballistics evidence which the Crown says points to it as being the murder weapon. Also N's assertion to Tong Ngoc, at the time of the purchase of the Beretta, that it was wanted by Phuong Ngo to kill John Newman; Dinh's possession of a khaki army jacket; the presence of what the Crown claims were Quang Dao's Ford Fairlane and Phuong Ngo's white Camry in the area, at night, in the few days before the murder; what the Crown claims were Phuong Ngo's motives for wanting to get rid of John Newman; and lies told by the accused; either when interviewed by police or in giving evidence here in court, although I remind you that lies told by an accused are evidence only as against that accused and not against the others. I shall come back to lies in more detail shortly. Whether the matters I have mentioned, or any of them, provide support or confirmation or corroboration, as counsel referred to it, of the evidence of the accomplices is a matter for you as the judges of the facts and will depend on whether you accept, as reliable, the relevant evidence and what, if any, significance you attach to it. As I say, to be of any use in providing support or corroboration of the evidence of the accomplices, it must be such as confirms or strengthens the accomplice's evidence, not only that the crime was committed but that these accused committed it, or were implicated in it. Finally, even if you do not find any other relevant evidence which strengthens or confirms the evidence of the accomplices, you may still convict on that evidence if, after taking into account the warning I have given you, you are nevertheless satisfied beyond reasonable doubt that it is truthful and reliable." 175 At the conclusion of the Summing-up learned Senior Counsel then appearing for the appellant asked for a direction supplementing what had been said. More particularly, counsel applied for: "a warning that it would be dangerous to be satisfied beyond reasonable doubt on the evidence of T alone or on [sic] N alone unless the jury, scrutinising that evidence with great care and taking other precautions, was satisfied of its truth or [sic] accuracy." 176 After a deal of discussion which need not now be canvassed, his Honour gave the following additional direction: "I gave you a detailed warning about how the evidence of an accomplice witness, particularly one with an indemnity, may be unreliable. In addition to what I said, would you also bear in mind that if you do not find any corroboration or confirmation or support of the nature that I described to you, it would be dangerous to convict on such uncorroborated evidence of an accomplice without subjecting it to close scrutiny and unless you were satisfied of its truth and accuracy." 177 Shortly thereafter, and having given a number of further directions about other topics, his Honour said: "Finally, in relation to the accomplice witnesses, a number of their motives for lying, or possibly lying, were explored. You should bear in mind that there may be other motives, unknown, or motives which cannot be explored in cross-examination, which the accomplices may have to lie. The issue is not whether you are satisfied that they are lying or not; the issue is whether, at the end of the day, in the light of all the evidence, you are satisfied, beyond reasonable doubt, each of the accused is guilty." 178 The directions quoted previously gave rise at the trial to a further complaint and application. The relevant interchange, as recorded, was: [SENIOR COUNSEL FOR THE APPELLANT]: Your Honour, in inviting the jury or instructing the jury rather, that they can look for support elsewhere in the evidence, you said that N's assertion that the weapon was wanted by Phuong Ngo was a matter that they could use as support corroborating N's account. ……………………………… In my submission, neither Tong Ngoc's evidence, nor N's evidence of that could be used as support, Tong Ngoc because he was an indemnified witness and one indemnified witness cannot corroborate another, or support another. Secondly, for the very reason that your Honour said: That it was hearsay, and hearsay evidence itself is one of those categories of evidence that must be viewed with some caution. Two bases, the second not as strongly as the first. But in my submission the N assertion, wherever it comes from, whether N, couldn't support N, and if it comes from Tong Ngoc, he being the witness on the Crown case who is involved in the common purpose to the extent of supplying the gun, fits the accomplice motive. HIS HONOUR: The old law was one accomplice couldn't corroborate another. One only looks now for support. It is true that support or confirmation cannot be found in the evidence of the accomplice to be corroborated, because that is a circular argument. I don't see any reason why, since the Evidence Act, one accomplice cannot confirm or support another. [SENIOR COUNSEL FOR THE APPELLANT]: We say the principle established in Pollack (sic) still applies." 179 The reference to "Pollack" is in fact a reference to the decision of the High Court in Pollitt v The Queen (1991-1992) 174 CLR 558. The present relevance of that decision is sufficiently established by the following excerpt from the joint judgment of Dawson and Gaudron JJ, (Deane J specifically concurring): "The rule that one accomplice cannot corroborate another is based in large part on the common interest of accomplices in minimising their involvement in the offence charged. That common interest raises the possibility that they may have conspired to give an identical but false account. It is for this reason that a direction is given that accomplices cannot corroborate each other. Thus, if there is no possibility of joint fabrication, as, for example, where the witness was an accomplice in other offences and is called to give similar fact evidence, a direction to this effect is not required. Equally, there may be cases not involving accomplices where, because of the possibility of joint fabrication, it is necessary to direct a jury to look elsewhere for corroboration. But there was no basis for any suggestion of joint fabrication in this case and, thus, there was no need for a direction that ……….. [the relevant witnesses] ……….. could not corroborate each other." [at 600] 180 The appellant's submissions are, in summary, these:
(a) The particular instances given at SU 15 were not correctly instanced as examples of possible corroborative evidence, since they did not link the appellant to the crime charged.
(b) It was appropriate, s 164 of the Evidence Act not withstanding, to give the "dangerous to convict" warning previously quoted from SU 439.
(c) The learned trial Judge, having given that warning, was bound thereupon to give the jury a correct and precisely detailed explanation of what evidence was capable, if accepted by the jury, of amounting to corroboration of T and/or N.
(d) His Honour failed to give that assistance to the jury.
(e) His Honour's refusal to direct the jury that Tong Ngoc and N, being accomplices, could not corroborate each other, caused a miscarriage of justice. 181 We will deal seriatim with each of these summarised submissions.
Summarised Submission 1: The particular instances given were not correctly instanced as examples of possible corroborative evidence, since they did not link the appellant to the crime charged. · It was the Crown case that the actual shooting of Mr. Newman occurred at about 9.30 p.m. on 5 September 1994, and that the appellant's movements, when timed both by eye-witness evidence and by the tracking of telephone calls, had the appellant absent from the Mekong Club, and doing and saying things that were consistent with his having had the opportunity to do what the Crown case consistently alleged that he had in fact done, namely, master-mind and supervise the actual carrying out of the shooting. In that connection, every piece of evidence from which the movements of the appellant at, and proximate to, the time of the shooting could be plotted was capable of implicating him in the murder; and was capable, therefore, of strengthening in the requisite sense the evidence of, in particular, T as to the appellant's implication. · T gave evidence that Dinh had removed from a bag then in his, Dinh's, possession a pistol with which, immediately thereafter, Dinh shot Mr. Newman. T subsequently identified, in a gun array at Sydney Police Centre, two pistols as being similar in appearance to the pistol used by Dinh in the carrying out of the murder. One of those two weapons was a Beretta. There was led in the Crown case a body of evidence which, if accepted by the jury, established that the murder weapon was indeed a Beretta.
There was led in the Crown case a further body of evidence which, if accepted by the jury, supported a finding that the appellant could be shown, by means of telephone calls made after the time of the shooting, to have been, shortly after the shooting, proceeding in the direction of the area where, subsequently, a Beretta pistol, capable of having been the murder weapon, was recovered by the investigating police.
The two bodies of evidence were, in our opinion, capable of corroborating, in the requisite sense, T's evidence. · N's statement to Tong Ngoc was admissible, pursuant to s 87 of the Evidence Act, because it was reasonably open to find that the circumstances in which the statement had been made satisfied the requirements of s 87(1)(b) or s 87(1)(c), so that the statement was available as evidence of an admission on the part of the appellant that he, the appellant, was actively pursuing the purchase of a weapon by the use of which he could have Mr. Newman killed. Tong Ngoc's evidence that N had made that statement was evidence which, if accepted, strengthened N's own credibility on that point; but that was not its only probative value. Tong Ngoc's evidence, by strengthening the credibility of N's evidence, was strengthening, because of the applicability to the statement of s 87, the making by the appellant in fact of an incriminating admission.
The appellant submits that, even were it correct to regard the evidence of Tong Ngoc as corroborative of the evidence of N, nevertheless Tong Ngoc cannot be accepted as thus corroborating N, because Tong Ngoc and N were accessories before the fact; were, on that account, accomplices; and were therefore incapable, as a matter of law, of corroborating each other.
Whether or not two or more persons who are accomplices can in law corroborate each other or one another, will be considered later and in connection with the summarised submission 5.
We accept that Tong Ngoc and N, if accessories before the fact, were on that account accomplices: Davies v Director of Public Prosecutions [1954) AC 378 at 400 per Lord Simonds LC. But were Tong Ngoc and N accessories before the fact, bearing in mind in that connection that the relevant "fact" is the shooting of Mr. Newman on 5 September 1994?
We answer that question by reference to the principles that are examined and explained by McCullogh J in Blakely v The Director of Public Prosecutions (1991) RTR 405 especially at 413 A - F, commenting upon aspects of the judgment of Devlin J in Johnson v Youden [1950] 1 KB 544; and at 415, where his Lordship propounds this test: "While it may nowadays be the law that advertent recklessness to the consequences of his deliberate act of assistance may suffice to convict some, if not all, those accused of being an accessory before the fact, it is clear that inadvertent recklessness does not. It must, at the least, be shown that the accused contemplated that his act would or might bring about or assist the commission of the principal offence: he must have been prepared nevertheless to do his own act, and he must have done that act intentionally. The requirements match those needed to convict the principals in the second degree. And they fit well with the liability of the parties to a joint enterprise."
And see generally Giorgianni v The Queen (1984-85) 156 CLR 473.
We accept, applying the foregoing propositions, that Tong Ngoc and N were, when they negotiated the purchase of the Beretta, accessories before the fact to the murder of Mr. Newman. · According to T the appellant left the Mekong Club in the close vicinity of 8.30 p.m. on the evening of the murder. With the appellant were Dao and Dinh. Dinh was wearing a khaki army jacket. Peter Bowen, a security officer then working at the Mekong Club, gave evidence of having seen the same three men leave the club at about the same time. Mr. Bowen's recollection of Dinh's apparel was that Dinh was wearing a wool-blend maroon sports coat. According to T, Dinh was still wearing the khaki army jacket at the time of the murder.
Lucy Wang, the murdered man's fiancée, gave evidence that the shooter had been wearing a green army-style jacket, and she later identified jackets similar in appearance.
It was, in our opinion, open to the jury to find that the shooter was wearing at the time of the shooting an army-style jacket of the kind described by Ms Wang; that Dinh owned a jacket of that kind; and that Dinh had left the club in company with the appellant about an hour prior to the time of the actual shooting.
All of this material was capable, in our opinion, of corroborating T's evidence that Dinh had shot Mr. Newman, and that the appellant was associated with Dinh in that shooting. · There was ample evidence from which the jury could properly find that two vehicles, of the same general descriptions as, respectively, vehicles then owned by the appellant and by Dao, had been seen two days before the shooting in the close vicinity of Mr. Newman's home, and in positions consistent with a deliberate surveillance of that home. This evidence, if accepted, was in our opinion capable of corroborating T's evidence inculpating both the appellant and Dao in the shooting of Mr. Newman. · It is common ground between the Crown and the appellant that evidence of an accused person's motive to commit the crime charged is always admissible as being relevant to prove that the accused person did in fact commit the crime charged: Plomp v The Queen (1963) 110 CLR 234; De Gruchy v The Queen [2002] HCA 33. T, the accused's accomplice on the Crown case, gave evidence which, if accepted, put the accused at the centre of an enterprise to have Mr. Newman, a Member of Parliament, assassinated. Evidence independent of T, and which, if accepted, established a completely logical motive in the appellant for achieving that criminal objective, clearly satisfies, in our opinion, the requirements, as explained by the High Court in Doney v The Queen (1990) 171 CLR 207, of corroborative evidence. · In our opinion, lies shown to have been told by the appellant about matters material to his alleged involvement in the shooting were, subject only to what is discussed later herein in connection with Ground of Appeal 10, plainly available to strengthen in the requisite legal sense the evidence of, relevantly, T that the appellant had been, indeed, culpably involved in that shooting. · A general complaint is made by the appellant to the effect that his Honour's reference to the proposition that corroborative evidence "may include" the various matters which we have previously been discussing, erred in two respects: first, by leaving "it open to the jury to use as corroboration anything that they thought satisfied that description whether or not that was actually so"; and, secondly, by misleading the jury "by the 'examples' given because some of them, at least, did not answer the requirements of corroboration". As to the first proposition, we think that a fair reading, in context, of the relevant directions does not support the complaint. The Judge, plainly, was not embarking upon an exhaustive catalogue of possibly corroborative evidence. His Honour was intending, plainly, to illustrate by means of a few selected particular examples, a general direction correctly framed. The summarised submissions 3 and 4 raise other issues about the Judge's directions respecting corroboration; but, those other issues apart, the present complaint, as part of the summarised submission 1, is in our opinion not established.
As to the second proposition, we are of the opinion that, for the reasons previously discussed, it has not been established.
Summarised Submission 2: it was appropriate, s 164 of the Evidence Act notwithstanding, to give the "dangerous to convict" warning quoted previously
Summarised Submission 3: the learned trial Judge, having given that warning, was bound thereupon to give the jury a correct and precisely detailed explanation of what evidence was capable, if accepted by the jury, of amounting to corroboration of T and/or N
Summarised Submission 4: his Honour failed to give that assistance to the jury. 182 These three submissions can be considered together. 183 We accept that in the circumstances of the appellant's trial it was appropriate for the learned trial Judge to give, as requested, what might be described as a conventional "dangerous to convict" direction. 184 When such a direction is given, two possible questions arise:
(a) Has the direction been expressed correctly in point of principle: or, to put the point in another way, has the direction put clearly and sufficiently a form of warning adequate to convey the considerations that the law sees as requiring that the direction be given at all?
(b) A correct direction of law having been given, has the Judge given the jury proper assistance in applying the direction to the facts of the particular case? 185 In the present matter the appellant's submissions, as we have followed them, do not contend that the directions and warnings given by the trial Judge were incorrect in substance or inadequate in form. What is contended, rather, is that his Honour did not adequately, or indeed at all, assist the jury by identifying those pieces of evidence which, if accepted by the jury, were capable of amounting to corroboration. 186 That contention itself encompasses two distinct complaints namely:
(i) that his Honour did not catalogue for the consideration of the jury potentially corroborative items of evidence; and
(ii) that his Honour did not give the jury an itemised critique of some thirteen items of evidence which the Prosecutor had propounded in his closing address as being potentially corroborative; some of those items being, as it is now submitted, unavailable in law as such corroboration. 187 The joint judgment of this Court, (Heydon JA, Sully and Levine JJ) in Reg v Chen [2002] NSWCCA 174 states in paragraph [58] the following propositions: "In our opinion, … [a particular Crown witness] …was plainly an accomplice. Though section 164(3) of the Evidence Act 1995 abolished the universal common law duty to give an accomplice warning, the power and the duty to do so in appropriate circumstances survives: see also section 165(5). It became therefore incumbent upon the learned presiding Judge to give the jury a clear direction to the effect that it would be dangerous to convict the appellant, …. …upon the uncorroborated evidence of that accomplice. ………………….. It became, then, further incumbent upon his Honour to give the jury some assistance in understanding the nature of corroborative evidence; and in identifying those matters of fact which, if accepted by the jury as having been proved, could constitute such corroboration in the appellant's particular case…………………. ." 188 We agree with those propositions. Of the three propositions thus stated, we understand the present ground of appeal to be focused upon the third of them. 189 In considering whether the Summing-up in the present case fell short of what was required as to that third principle, it is in our opinion both correct in principle and useful in fact to recall some of the advice which various benches of this Court have given, with some prodigality as we respectfully think, to trial Judges as to the structure of a proper Summing-up. It is not necessary to travel, to that end, beyond the following well-recognised extracts from the Court judgment of this Court, (Hunt, Enderby and Sharpe JJ) in Reg v Zorad (1990) 19 NSWLR 91: "A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the relevant case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence: ……………… . The idea of a summing-up is to present for the jury issues of fact which they have to determine." [at 105E - G; citations of authority have been omitted]. 190 In applying principles of those kinds to the present case, we do not accept the submission that his Honour was bound, not only to remind the jury of the competing arguments as to potentially corroborative evidence, but to give, in effect, an item by item critique of each and every suggested item of corroborative evidence upon which the competing submissions had been based. His Honour's duty was to summarise as fairly and as succinctly as he could what those submissions had been in fact; and to ensure that the jury, in accepting or rejecting any submission of counsel, was guided by principles of law correctly stated to them by his Honour. 191 Approached in that way, we are of the opinion that the trial Judge correctly and fairly summarised the relevant thirteen points made in the Crown submissions; that no reasonable juror could have been under any misapprehension that his Honour was doing anything more than that; and that, insofar as his Honour gave the jury general directions of law on the subject of corroboration, such general directions were adequate in form and correct in substance. 192 What, however, of the appellant's submission that his Honour was bound to compile, in effect, an itemised catalogue of pieces of evidence which were, in his Honour's opinion, capable if accepted by the jury of amounting to corroboration; and to put that catalogue to the jury, dealing item by item with the competing considerations of fact which the jury would have to weigh up? 193 The Summing-up in the present case did not anywhere lay out in a catalogued fashion a collection by his Honour of items of potentially corroborative evidence. That does not of itself entail, in our opinion, that his Honour failed to give the jury some imperatively required form of assistance. No doubt there will be cases, Zorad itself being an example, where the volume of relevant material is sufficiently contained to permit of the Judge's giving the jury a single statement of items of potentially corroborative evidence. No doubt there will be other cases, and we think that the appellant's case is a good example, where the volume of material which has to be summed up, and the multiplicity of issues to which that material gives rise, are such as to make it impracticable, if not indeed impossible, to gather every item of potentially corroborative evidence which bears upon every particular issue to be decided by the jury, into a single catalogue of items; while at the same time observing the Zorad-type strictures about clarity and simplicity. 194 The Summing-up in the present matter was, with respect to his Honour, very carefully framed. His Honour's approach, having given a collection of relevant directions of law of general application, was to categorise the evidence, and, having given a "collected resume" of the evidence, to remind the jury of the competing submissions of counsel. It must be remembered that the present appellant was tried jointly with two co-accused. Each of the three accused was represented by counsel experienced in the conduct of criminal cases. The appellant's own leading counsel was a Senior Counsel of vast experience and of recognised standing at the criminal defence Bar, and he had the assistance of Junior Counsel. From time to time during the Summing-up his Honour entertained applications for re-directions; and in many instances his Honour acceded to the particular application. 195 The approach taken overall by his Honour left the jury with clearly and correctly distilled directions of law about corroboration; and then laid out for the jury a clear summary of the competing arguments about suggested items of corroborative evidence. We are satisfied that the jury, if acting reasonably in the discharge of its duty, would have understood that each dispute about a suggested piece of corroborative evidence had to be resolved by the dutiful application of those clearly and correctly distilled directions of law. In a joint trial of great length and complexity, the cardinal point of reference for the Summing-up is practical fairness and not artificial perfection. We are not persuaded that anything said or done by the Judge on the issue of corroboration gave rise to a miscarriage of justice. We are strengthened in that connection by the failure of counsel at trial to submit otherwise. Summarised Submission 5: His Honour's refusal to direct the jury that Tong Ngoc and N, being accomplices, could not corroborate each other, caused a miscarriage of justice
196 We have set out earlier the interchanges that gave rise to this particular question. 197 We have earlier herein explained our conclusion that N and Tong Ngoc, when they negotiated for the purchase of a firearm, were accomplices in the relevant legal sense. 198 We have earlier quoted, in that connection, the relevant principles that are established by the High Court in Pollitt. 199 We accept that, N and Tong Ngoc being accomplices, it would have been erroneous to instruct the jury that the one could corroborate the other if, on a reasonable view of the relevant facts, they were accomplices of the particular type described in Pollitt. 200 We are unpersuaded that N and Tong Ngoc were accomplices of that particular type. We can find in the competing submissions no reference to any evidence which would justify the contrary conclusion.
For the whole of the foregoing reasons, we do not uphold Ground 8
Ground 10 - inadequate direction as to lies 201 The Ground states: "The Judge erred in inadequately directing the jury as to lies and the need for caution."';
Ground 14 - inadequate directions if jury not satisfied that recovered gun was murder weapon 202 The Ground is: 'The trial Judge failed to direct the jury as to how they might assess other evidence in the case if they were not satisfied that the recovered gun was the murder weapon." 203 These grounds are associated, and it is convenient to deal with them jointly. 204 Part of the Crown case at trial posited that the appellant had left the Mekong Club at about 8.30 p.m. - 8.40 p.m. on the night of the murder; that he could be put, by credible evidence, in the Camry vehicle, and in the vicinity of Mr. Newman's home, at the time of the shooting, which occurred at about 9.30 p.m; and that it could be established by credible evidence that he was driving, during the 20 or so minutes after the shooting, in the direction opposite to the direction of his home, and towards the very area in which the alleged murder weapon was later recovered. The Crown case was that, given the totality of those premises, a powerful inference was available that the appellant had retrieved the murder weapon immediately after the murder, and had forthwith taken the weapon to a remote location where he had disposed of it. 205 This chain of events, if found in fact by the jury to have been established, was plainly capable of supporting the drawing by the jury of an inference that the said acts of the appellant in the immediate aftermath of the murder were indicative of a consciousness of guilt on his part in connection with the murder itself. 206 Fundamental to that line of reasoning was, of course, the proposition that the jury was satisfied that the Beretta pistol which was eventually recovered from the water at Voyager Point, was in fact the murder weapon. 207 There was a further aspect of the Crown case at trial; and it involved the proposition that the accused could be shown to have told lies capable of evidencing, and such as to warrant the drawing of an inference in fact of, consciousness of guilt in connection with the murder of Mr. Newman. The alleged lies concerned the movements of the appellant at times proximate to the time of the murder. 208 This further aspect of the Crown case depended on evidence which overlapped to some extent the evidence by reference to which the Crown case sought to associate the appellant with the prompt disposal of the murder weapon. Each of the two separate aspects of the Crown case depended upon evidence which enabled a plotting of the whereabouts of the appellant at times very proximate to the time of the shooting itself. 209 At an early point in the Summing-up his Honour gave the jury the following directions about lies: "First of all, you must be satisfied that the accused did tell the lie or lies in question. There are three steps involved in reaching that decision before you can be satisfied that an accused has told a lie. You must first find that he made the statement alleged. You must then find that it was untrue, and you must then find that at the time he made it he knew that it was untrue. In other words, it must be shown to be a deliberate lie. A careless or unintentional misstatement of fact is not really a lie at all. The proof that he told a deliberate lie must, unless he admits it, be found in the evidence of a witness or witnesses other than the accomplice whose evidence is to be corroborated. If you simply felt that you did not believe some statement made by the accused, that would not be proof that it was a lie. The fact, if it be the fact, that you prefer the evidence of the accomplice to the evidence of the accused would not satisfy this requirement, for that would simply be allowing the accomplice to corroborate himself. It would be circular. Even the finding that an accused deliberately lied is not sufficient to make his false statement into affirmative evidence against him. You can only use lies in this way if you are also satisfied, and this is the secondary requirement, that they related to a material matter. Unless the lies are concerned with some circumstances or event connected with the alleged offence, they cannot be on a material issue. A lie on an immaterial issue cannot be used as affirmative evidence against an accused in this way. The third requirement is that there must be no other reason for them to tell the lies but their belief that the truth would implicate them in the offence with which they are charged. In other words, you must be satisfied that the accused lied because they believed that if they were to tell the truth, the truth would convict them. Another way of putting this is to say they were unable to account innocently for the facts with which they were confronted. But even that is not enough. You must also consider all the circumstances to see whether you are satisfied that the reason for the alleged lie was that the accused did have such knowledge of the facts as to make it clear that it was told because of their fear that if they told the truth it would implicate them in the offence. Sometimes a person may tell a lie even about an important matter for some reason other than his own guilt. It may be out of panic. It may be to protect some other person. It may be to protect himself because he is guilty of some misconduct other than the offence with which he is charged. It is only his knowledge of his guilt of the offence with which he is charged here that is relevant. A person may, for example, lie about his possession of a firearm, not because he has murdered anybody but because he fears prosecution for not having a shooter's licence. A man might lie about his whereabouts at a crucial time simply because he does not wish his wife to know he was having an affair. So you have to take all those matters into account." 210 His Honour then directed the jury that "(t)he fact that one accused has told lies cannot be used as evidence against another accused"; and continued: "Now, in relation to this type of lie, the Crown relies on the following matters in relation to the accused Phuong Ngo: The representation in his first record of interview that he only went to his office across the other side of John Street between 9.30 and 10.30 p.m., or - and this is a variation really on that - his representation in his second record of interview that he only went to his office and to his home between 9.30 and 10.30 p.m. In particular, that in neither interview did he say that he had been to the premises of Mr. V. T. Nguyen, the editor of the Vietnamese newspaper, to deliver the material Mr. Nguyen said he received. Also, the Crown relies on what it alleges was the lie told to Shirley Barrett in the second of the telephone calls to her from the Camry car phone, where the accused is alleged to have said that he was then on his way home, whereas the Crown claims that the telephone calls prove that he was travelling away from his home in the opposite direction at that time." 211 At the close of that particular sitting day, Senior Counsel for the appellant asked for a further direction: "…… that they can only apply the principles that you have espoused to them as the principles of law applying to the two lies that the Crown says are demonstrating consciousness of guilt and not to any other matters that they may subsequently find as lies". His Honour gave on the following morning a re-direction to that effect. 212 No further complaint was made at trial in connection with his Honour's directions concerning lies as evidencing consciousness of guilt. In our opinion the directions were both correct and clear. 213 It is submitted for the appellant that his Honour erred in that he "did not explain to the jury that the appellant's travelling to the south-east could only become material in the case if they were satisfied that the recovered gun was the murder weapon. If they were not satisfied that the gun was the murder weapon then they could not rely on the alleged lies as evidencing consciousness of guilt". 214 In our opinion this submission misconceives the nature of the material matter or fact about which the appellant had allegedly told the particular alleged lies. The point was not that the appellant could be shown to have told lies about the murder weapon. The point was that the appellant could be shown to have told lies about his movements at times which were very proximate to the time of the murder itself; and that the telling of lies of that character could justify the drawing of an inference of consciousness of guilt. In our opinion it did not by any means follow that, if the jury accepted that the appellant had deliberately lied about his whereabouts at the time of the murder, those lies lost all materiality, in the relevant legal sense, because the jury did not accept that the recovered pistol was the true murder weapon. We are strengthened in that opinion by the failure of Senior Counsel at trial to make any contrary submission or application. 215 It is further submitted by the appellant that: "……..it may have been necessary for them both to be satisfied that the gun was the murder weapon beyond reasonable doubt and that the lies were established to this standard ………….. It is not submitted that a finding that the accused had lied was necessarily an indispensable step to a finding of guilt. However, the evidence as to the gun and the lies was a substantial part of the Crown case and it was open to one or more of the jurors to regard the lies as indispensable links in their chain of reasoning toward being satisfied of the appellant's guilt beyond a reasonable doubt". 216 We agree both that "a finding that the accused had lied was ………. [not] ……… necessarily an indispensable step to a finding of guilt"; and that "……….. the evidence as to the gun and the lies was a substantial part of the Crown case ……… .". We think that the latter proposition must have been clear to any reasonable and sensible juror; that it must have been equally clear that not to accept the Crown case on lies and on the identification of the murder weapon would be to weaken the Crown case; that in such event the evidence of the accomplice witnesses was even more important; and that the assessment of that accomplice evidence needed correspondingly special care and caution in accordance with directions which, as we have explained in connection with Ground 8, we consider to have been both clear and correct. 217 Senior Counsel at trial applied for a direction that the jury should take the approach that, if the jury was not satisfied that the recovered pistol was the true murder weapon, then that conclusion "……undermines, substantially, the evidence of [sic] the Crown case so that it is basically left with T, and then we would argue that it is dangerous to convict, relying on the evidence of T". 218 His Honour did not deal in a particular way with the entirety of that submission. His Honour did in fact give a conventional "dangerous to convict" direction, and for the reasons explained in connection with Ground 8, we are satisfied that such direction was fair, clear and correct. We do not agree that his Honour was obliged to direct the jury that the Crown case was substantially undermined by an unpreparedness to find that the recovered weapon was indeed the murder weapon. That was a question of fact for the jury and his Honour was not obliged to make any comment about it. 219 For the foregoing reasons, we do not uphold Grounds 10 and 14. Ground 11 - the Judge erred in directing the jury that the submission of defence counsel on the failure to call Crime Commission Officer O'Connor should be rejected because the evidence of Mr O'Connor would not have been admissible 220 This ground concerns T (a principal Crown witness and an employee of the Mekong Club) whose evidence, for present purposes, may be summarised to this effect. 221 T had been approached by the appellant in early 1994 to obtain, first, a gun and later a gunman for the killing of Mr Newman. He had obtained guns for the appellant and had in fact provided the appellant with the eventual murder weapon. He attended with N (another employee of the Club) on two attempts to kill Newman on the appellant's behalf. On the night of the murder he was "tricked" by the appellant into being in the car used by the shooter (Dinh) at the scene of the killing when it took place. Shortly before the shooting he had a telephone conversation with the appellant incriminatory of the appellant. Further, he was present when the murder weapon was transferred to an unknown person, who on the Crown case, was the appellant. He had conversations with the appellant after the murder incriminatory of the appellant. 222 On 13 March 1998 T, together with the appellant and Dao, was charged with Mr Newman's murder. On 19 July 1999 T went to trial with the appellant before Wood CJ at CL and a jury. On 3 August 1999 the jury was discharged. On 8 August 1999 T agreed to co-operate with the New South Wales Crime Commission. 223 In the context of T's co-operation with the authorities, the appellant draws attention to these aspects. In December 1994 police had searched T's home and seized the lining of a green army jacket, T was aware that gunpowder residue had been found on the lining of the jacket. His explanation was that he had not worn it since 1988 and that his sister had had it since that time. He accepted that the Crown at his committal had told the magistrate that the strongest case was against him but he said he did not recall that. He understood the Crown case in the first trial to be implying that he might have been the shooter. He had been an accused in the first trial and was facing a second trial when he decided to assist the Crime Commission. T was released from custody shortly after making his first statement assisting the Crime Commission. In pursuit of an indemnity, and after agreeing to co-operate with authorities, T made a number of statements to the Crime Commission implicating the appellant and another accused. 224 Cross-examination of T revealed the lack of any proper recording of discussions between T and any officer of the Crime Commission, and in particular officer O'Connor. T's first statement co-operating with the Commission was an induced statement made on 8 August 1999. One topic about which T was cross-examined by counsel for the appellant concerned his use in this statement of the term "racking" a pistol. T said O'Connor had provided him with that word and told him the purpose of racking a pistol was to bring the bullet into the chamber. At that time he said that he had not known anything about guns apart from what he saw in movies. It was put to him that that person from the Crime Commission was making up his statement for him. It was also put to him that he was allowing O'Connor to provide some of his evidence for him. T denied what was put to him. He said that as far as he was aware there was (apart from the statement itself) no video, audio or written record of the role O'Connor played in helping him during the making of his statement of 8 August 1999 and there was no record of anything that occurred between him and officers of the Crime Commission from the time he came to the Commission until the statement was made. 225 On 27 October 1999 T made one of a number of further statements to O'Connor. In this statement he made a claim, not made in previous statements, that he and N had participated at the appellant's behest in two attempts to kill Mr Newman. 226 In cross-examination T was also questioned about an apparent amendment or revision of a statement implicating the appellant. T denied that he had revised the statement and said he was just answering questions of the investigator. He nominated O'Connor and suggested that counsel question O'Connor. 227 T also agreed that his statement of 8 August 1999 did not contain any mention of previous attempts on Mr Newman's life. He learnt in October [1999] that police had spoken to N, but he denied they had told him that N had implicated him in the attempts. The Crime Commission had mentioned to him "something to [the] effect" that his indemnity might be at risk because he had lied to them previously. He made a statement on 27 October 1999 to O'Connor over a period of hours providing more information including that he had taken part in attempts to kill Mr Newman at the appellant's behest. He was asked by Dao's counsel whether the Crime Commission composed a statement for him: this he denied. When it was suggested to him that the Court did not know what was said to him [by the Crime Commission] T said "I think you can ask them [the Crime Commission] sir". 228 During T's cross-examination by counsel for the appellant, it was suggested that his evidence implicating the appellant was untrue and that he had sought to "weave into the fabric" of his narrative involvement by the appellant for the purpose of obtaining an immunity from prosecution. This, it is submitted, was a challenge to the truthfulness of statements the witness had produced in the company of O'Connor. It had been suggested (at least by implication) that O'Connor had assisted T in the making of his statements of 8 August and 27 October 1999. 229 In his address to the jury counsel for the appellant submitted that it was regrettable that T's account of how T, a person claiming no knowledge of guns, came to use a particular expression about guns when the explanation was that it was something O'Connor had told him and it was not the subject of any recorded conversation between O'Connor and T. Further, the jury was disadvantaged in not having an account of T's dealings with O'Connor leading up to T's statement of 27 October 1999 wherein he apparently confirmed N's account of he and T being in the two attempts to murder Mr Newman. The lack of records of preliminary discussions between T and the police leading up to T's account on 27 October 1999 about the attempts to murder Mr Newman was something that should be of concern to the jury and without O'Connor being called the jury had only T on whom to rely. 230 Regarding the complaint about O'Connor not being called, shortly after the submission was made by counsel, his Honour indicated that the evidence would not have been admissible as the credibility rule would have excluded it. Counsel then submitted that this was not so. 231 Later, in his Summing-up, his Honour said to the jury: "I just draw attention to one submission made by Mr Nicholson, which was to the effect that Mr O'Connor from the Crime Commission should have been called. It seems to me that if Mr O'Connor had been called his evidence would have been inadmissible". 232 For the appellant it is submitted that his Honour erred in this direction. The credit of T had been placed squarely in issue. It was being suggested that evidence given by the witness had been fabricated or was the result of suggestion. The witness himself had suggested that the defence ask O'Connor. In such circumstances the defence would have been unable successfully to resist a Crown application (Evidence Act s108(3), cf Dyers v R [2002] HCA 45 at para [17]; (2000) 76 ALJR 1552; see also R v Riscuta and Niga [2003] NSWCCA 6) for leave to call O'Connor to give an account of T's conversations consistent with T's evidence for the purpose of restoring T's credit. 233 The Crown argues that submissions to the jury by the appellant's counsel (summarised above) were about the fact that there was no record made of T's conversations with police and officers of the Crime Commission leading up to, and in the course of, the making of statements. Senior counsel for the appellant made the point that the jury only had the word of T about such conversations. The thrust of his submission, it is said, was that this was another reason to question the credibility of T. He was not making a submission about the "failure to call" O'Connor of the Crime Commission. He was not suggesting that the Crown should have called him and that the jury could have regard to consequences or conclusions that flowed from that failure. What was said by senior counsel for the appellant could hardly be described as a Jones v Dunkel submission. 234 When the learned trial judge raised the issue after the jury next left the courtroom, he referred to what had been said by counsel as a "complaint" that O'Connor was not called. Having regard to the foregoing, the Crown submits that this does appear to have been a correct characterisation of counsel's argument. Counsel for the appellant indicated that evidence from O'Connor would not have been excluded by the credibility rule. His Honour invited counsel to think about it. Counsel said that he would. The matter was not raised again until the brief reference (the two sentences above) by his Honour in the course of his Summing-up. Having had the opportunity to "think about it", senior counsel made no complaint. 235 The Crown sees the appellant's submissions as contending that the Crown could have called O'Connor to give evidence of his conversations with T which were "consistent" with T's account of those conversations. However, the Crown submits there was "no" dispute with T's account of those conversations. His account of those conversations was something defence counsel used to his forensic advantage. Calling another witness to confirm what was already common ground would have added nothing to the trial and thus "failing" to call such evidence did not cause, or contribute to, a miscarriage of justice. 236 If, however, the evidence of O'Connor was admissible under s108(3)(b) of the Evidence Act it would only have been on the basis that it had been (or would be) suggested that T's evidence on some topic was "fabricated", "reconstructed" or "the result of suggestion" and that O'Connor was in the position to give evidence of a "prior consistent statement" made by T. The Crown stresses that senior counsel's submissions to the jury reflected no dispute with T's account of his conversations with O'Connor. 237 At the hearing of the appeal there was discussion as to the effect of the submission Mr Nicholson made to the jury about T's dealings with the Crime Commission. It was maintained that the effect of the submission is as set out above. 238 The Crown argued that the evidence of O'Connor would not have been admissible according to ss55 and 56 of the Evidence Act. It is incorrect to say that "the course of the investigation had been made an issue in the trial" as was submitted by Mr Game on appeal. The critical issue, in this context, was T's credibility. Part of that concerned the circumstances in which he agreed to co-operate with authorities and the pressure, so it was asserted, that he was under. A theme through the cross-examination was that T was in fear of being convicted and agreed to co-operate with authorities to avoid that prospect. Generally, T denied this, and assigned family considerations as the reason for his decision. In relation to this, evidence from MP became admissible. Evidence from O'Connor was in quite a different category. The only "issue" that concerned T's dealings with O'Connor was not a matter in issue. Mr Nicholson's submissions proceeded upon an acceptance of the evidence of T as to his dealings with O'Connor. He made his submissions, no doubt, acutely aware of the matters that were in issue, and the reasons they were in issue. The absence of any complaint by senior counsel for the appellant of the concerns now raised is significant. 239 In further submissions the appellant refers to the Crown's observations that O'Connor's evidence would have been admissible under s 108(3)(b) if it was suggested that T's evidence in some way had been fabricated or reconstructed "as a result of suggestion" and if O'Connor was in a position to give evidence of a prior consistent statement made by T. 240 There was, the appellant says, evidence that satisfied these requirements. 241 In particular, T was cross-examined as to how he had come to include a particular word ("racked") in his statement of 8 August 1999. He said that O'Connor had told him the particular word. The exchange on this topic included the following question and answer: "Q: So, this person at the Crime Commission is making up your statement for you, is he? A: No, sir he questioned me and then I gave him the answer". 242 It is submitted that this alone satisfies the pre-requisites for a successful application for a grant of leave to call O'Connor pursuant to s 108(3)(b). 243 Further, Mr Nicholson had also suggested to T that one of his statements had been revised and that a part of it had been deleted. He suggested to T that he, T, had told the investigator to take a part out of the statement. This is said to be a clear suggestion of fabrication or reconstruction. T denied telling anyone to take anything out of his statement and suggested that Mr Nicholson should speak to O'Connor. This evidence would have founded a strong basis for a Crown application for leave to call O'Connor, the appellant argued. 244 The resolution of this ground must be considered in the context made up of the following matters: it seems clear, as the Crown submitted, that there was no dispute with T's account of those conversations with O'Connor of the Crime Commission. Further, the only matters that fairly can be viewed as pointing towards the possible operation of the Evidence Act that would have made admissible any testimony of O'Connor, was the matter of the use of the word "rack" and the suggestion of a change in a statement. There was no issue as to there having been no records of the Crime Commission. Further, senior counsel for the appellant, when one reads in particular his address to the jury on this subject, can be understood as taking forensic advantage of the matter not in issue (no records) to provide a basis for the jury considering the credit of the witness T. Indeed, Mr Nicholson said (by way of example): "We are not suggesting here necessarily any under handed or improper conduct by the Crime Commission, but questioning can be deliberately prompted and it can deliberately suggest on the other hand there may be no deliberateness in it but it can still suggest". 245 Nowhere in Mr Nicholson's address to the jury is a submission made in express terms conformably with the principle in Jones v Dunkel. Senior counsel seems to be at pains, if we might say so, to skirt around such a proposition in the interests of his client. 246 Further, when his Honour suggested that O'Connor's evidence would not have been admissible because it related to only credit and would have been excluded by the credibility rule, Mr Nicholson said "We raised an issue with T about records kept of the conversation" and "that became an issue in the trial". Thereafter, as has been remarked above, his Honour invited counsel to think about it further. There was no further mention and no "formal directions" sought after the two sentences in his Honour's Summing-up sought to be impugned in this Ground of appeal. 247 The two sentences from Mr Nicholson's response to his Honour point to an issue being raised but not, when viewed overall, to something in fact being "in" issue. 248 Furthermore, nowhere, on the occasions on which the matter was raised, were substantive arguments advanced for admissibility under ss 55 and 56, let alone under s 108(3)(b) of the Evidence Act. Indeed, the passage just cited from Mr Nicholson's address would counter-indicate that in the course of this trial, and at the pertinent time, any attention was being paid, and for good forensic reason, to the possibility of the application of s108(3)(b) in the light of but two matters, namely "rack" and the suggestion of a change in statement, the more so when it was not in issue as between the witness and the cross-examiner on the matters the cross-examiner was seeking to raise with the witness T vis-à-vis the Crime Commission. 249 Viewed within that context, it is difficult to see how the submissions that were made in the course of the appeal can persuade this Court of the end question, namely that there has been a miscarriage of justice. Whilst the two matters to which s108(3)(b) could have had application, (and the Crown appears to concede this whilst not pursing the s55 and s56 points), the conclusion could be reached that his Honour was "in error" in his statement to the jury. The statement was made, however, in a context quite different from that which was made before this Court, in the not uncommon way with the benefit of a thorough re-examination of all that took place in the trial, but after the trial. 250 Whilst we are predisposed to the view that in the strict sense the two extremely "small" matters could have triggered the operation of s108(3)(b), and thus from our perspective permit the identification of an error in what his Honour actually said to the jury in the context of this trial, when that error is placed in the context of the forensic position taken by the appellant, it must be concluded that there has been no miscarriage of justice. 251 In the course of submissions on appeal reference was made to "dare and double dare" as characterising what, during the appeal, was posited as the repetitive manoeuvring of the parties. It is a descriptive phrase but one in the end of no utility, with respect, in resolving from the appellate point of view an extremely fine point which becomes blunted when placed in the context to which we have referred. 252 As the Crown submitted, there was perceived forensic advantage from the non-calling of any evidence from O'Connor. That advantage was to the appellant. It was appropriately exploited by senior counsel in his address to the jury in relation to the credit of T whom he described as the Crown's offering of an evidentiary "colossus". T's credit was unquestionably an issue for the jury but what was not an issue for its resolution was what had occurred as between T and the Crime Commission - that was a matter raised but not disputed. 253 In these circumstances no miscarriage of justice occurred in relation to this ground which must fail.
Ground 12 - The judge erred in refusing to remind the jury of the defence submissions as to the significance of the appellant not seeking to waive "the two year rule". 254 In relation to this ground we gratefully adopt and adapt the useful outline of the evidence provided by the written submissions. 255 The appellant had become a member of the Fairfield City Council in 1987. In 1991 he had unsuccessfully stood against Mr Newman as an independent candidate for the State seat of Cabramatta. This was against the advice of Mr Ted Grace (member for the Federal seat of Fowler and Government Whip) who had advised him that the electorate was not ready to elect an Asian member of parliament. At this time the dominant wing of the ALP was the right wing and both Grace and Newman belonged to it. The appellant was approached by Mr Grace to join the ALP and to use his fundraising and recruitment skills to help Mr Grace stave off attempts by the ALP left wing to take his seat. He expected the appellant to form a pro-right wing branch if he joined the ALP. The appellant joined the ALP on 7 June 1993 and the Crown conceded that this was with the encouragement of the "leading lights" of the Party including Senator Graham Richardson and Leo Macleay. His support from them was conditional on his not standing against John Newman for his seat of Cabramatta. Mr Grace said the aim was to get the appellant into an Upper House not a Lower House seat. The appellant did not express any interest to him about gaining a Lower House seat. Upon joining the Party the appellant was encouraged to recruit new members into the Party and to resurrect the branch of Canley Vale, which he did. 256 The appellant was a political ally of Nick Lalich (then Mayor of Fairfield) who planned to stand against Mr Newman in the March 1994 preselection for the State seat of Cabramatta to be contested in the 1995 New South Wales election. 257 Although the appellant was gaining support that could assist Lalich, it became clear that they did not have sufficient members to defeat Mr Newman who was the incumbent. Thus Mr Lalich did not pursue preselection. Lalich said that over the months that followed the appellant's support grew and from mid 1994 to the end of 1994 the appellant would have had greater support than Mr Newman. The appellant never talked to Lalich about standing for the seat of Cabramatta himself. However, he expressed interest in becoming a member of the Upper House. Neither Grace nor Lalich gave evidence of the appellant expressing any animosity to them about Mr Newman. Lalich said Mr Newman had a strong animosity toward the appellant from before the appellant joined the Labor Party but the worst the appellant said about Mr Newman was that he (Newman) was a silly man or stupid. 258 On the day of Mr Newman's death the appellant had lunch with John Della Bosca who was at relevant times the General Secretary of the ALP in New South Wales. Mr Della Bosca told the appellant that the appellant could be considered for the Upper House or as a candidate for Cabramatta at some time in the future. Mr Della Bosca was "pushing on" Ngo the idea of running for the Lower House and Ngo was "pushing on" him the idea of running for the Upper House. The appellant had previously expressed interest in the Upper House to Mr Della Bosca. 259 The Crown case was that Mr Newman's death left it open for the appellant to take Mr Newman's seat because he had the votes to win a preselection for the seat if one was held in late 1994. 260 The evidence revealed a substantial practical hurdle to this course and it was of great significance to the defence case. Mr Arbib who was the Assistant General Secretary of the Labor Party gave evidence that as at September 1994 the requirement for a member of the Labor Party seeking to run for public office was that such a person had been a member for a period of two years, i.e., a continuous period of 24 months. Mr Ngo had only been a member since 7 June 1993 and was not eligible to stand for the seat of Cabramatta until June 1995. There was a convention that this two-year requirement could be waived in circumstances where it was beneficial to the Party, that is, if it was in the interests of the Party to do so. Whether it was to be waived was determined by the Administrative Committee and that committee was influenced by head office which was controlled by the right wing of the party. The rule was only waived in special circumstances. From Mr Arbib's enquiries he could only think of a couple of cases where the two-year rule was waived to allow a candidate to contest a seat prior to 1994. One concerned a popular local person in a marginal seat and the other was a highly regarded international sports star. The primary test as to whether the rule was waived was whether it was necessary to go outside the available eligible local candidates to win the seat. 261 Mr Arbib's evidence was valuable to the appellant. As Cabramatta was a strong Labor seat, there would have been plenty of locals with their two-years membership who could have run and won. The appellant was aware of the rule and mentioned it in his interview with the press. Relying on the rule, it could be argued that the appellant could not have afforded to presume that the rule would be waived in his favour. 262 The Crown produced no evidence that the appellant had ever enquired about his chances of the rule being waived. Mr Grace said that to have the two year rule waived a person needed the support of substantial people in the party. To obtain this a person needed to approach someone like him to organise the seeking of that support. Mr Grace was not approached. Mr Arbib said Ngo never made any application for a waiver and as far as Mr Arbib knew it was never even discussed. 263 His Honour, in summarising the evidence of Jason Clare (in 1994 the branch secretary of the Cabramatta Branch of the ALP) told the jury: "The [Party] rules also provided in 1994 that a candidate for public office, that is to be a Labor party candidate, must have two years with continuous membership of the local Labour Party, that is two years evidence of full membership. But he was not sure whether it was an absolute rule, but he was aware that the Administrative Committee could dispense with that requirement". 264 In summarising the evidence of Mark Arbib (the Assistant General Secretary of the New South Wales branch of the Labor Party since 1999 and a member since 1992) his Honour told the jury: "[Mr Arbib] said prior to September of 1994 for a person to stand for preselection at State level, he had to be a member of the party for a continuous period of twenty-four months. Prior to October 1994 there was a rule which enabled the head office of the Labor Party in New South Wales to waive that requirement if they considered it beneficial to the party, or that's what he was asked, and he said that there was no rule but there was a convention. That convention was that if there was a candidate that was not nominated or had nominated for public office and they did not have the two years eligible local candidates could be spoken to and either convinced not to contest the preselection or to allow the ineligible candidate to contest the preselection. If there was no objection by the Administrative Committee then they would be allowed to run for the position because they could actually be unopposed. There is now a rule to that effect. He thought it was rule N9". 265 In his summary of the Crown position, his Honour said of the appellant: "By mid 1994 he had the numbers in the electorate and the support of head office, provided John Newman was no longer the sitting member. The Crown submits that his support at head office was such that he could have had the two year rule waived". 266 There was no evidence that he had enough support in head office to get the two-year rule waived. If the evidence had been available it might have been expected to be given by Grace or Richardson or Della Bosca. It was not. 267 In summarising the appellant's submission to the jury regarding the two year rule his Honour said: "Mr Cusack relied upon Mr Hoenig's reasoning to show that Phuong Ngo had no political motive for killing John Newman and so did Mr Nicholson. But in particular Mr Nicholson relied on the two year rule. He said that Phuong Ngo was admitted to the ALP in June 1993 and, therefore, was not eligible to stand for preselection until June of 1995. He said that of he wanted preselection he would have stayed home and not gone to Taiwan after John Newman's death so that he could lobby" 268 The appellant's counsel sought further directions on the matter: "One of the arguments your Honour dealt with was the Crown argument about the prospects of having the two year rule waived. There was some evidence it may well be your Honour missed because of the interruption of Mr Arbib by Mr Della Bosca but the cross-examination of Mr Arbib by my learned junior dealt with the circumstance in which the two year rule could be waived. We would seek some of those answers, or some of that evidence, to be put before the jury. HIS HONOUR: Mr Nicholson, I certainly do not intend to cover all the evidence. I am trying to give a balanced view of it from both sides. There will be parts of it that will be left out, I appreciate that. But we do not want to be here another fifty-four days. I told the jury they are not limited to parts I refer to, and I must say the general impression I got at the end of the evidence was that if Head Office wanted to waive the rule, Head Office would waive the rule. That was the general impression I got. That or any other rule. NICHOLSON: With respect, we would be arguing that is not what Mr Arbib said. HIS HONOUR: I think, when I come to Mr Della Bosca, you will find that is what he said. I am not sure about that. Someone said it. Apart from Mr Hoenig. NICHOLSON: In the re-examination of Ted Grace, in our submission, a very important point was made, which was that there had been no approach made to him. I think Arbib says the same thing. No approach had been made for the waiver of the two year rule. HIS HONOUR: As I say, I am not going to attempt to cover every point. You have all had your opportunities to address. NICHOLSON: I concede I may have in my address but there is a difference, particularly in counsel for that accused making a point and the learned trial Judge, in his summing-up, saying: Well, this was the evidence. It does not matter how forcefully you put it to the jury. The Judge might mention it to the jury, the impact of the Judge's direction is much more telling". 269 The appellant submits that a balanced presentation of the evidence required his Honour to summarise for the jury the evidence of Mr Arbib in the manner requested by counsel for the appellant. The point, it is said, being pivotal to defence submissions as to motive. The fact that his Honour had been under the impression that the head office of the ALP could waive the rule if it wanted to, made it even more important for the fair presentation of the defence case for his Honour to remind the jury of the limitations on the waiver and that the appellant had made no move towards securing a waiver. 270 The appellant relies upon the following statement of general application in RPS v The Queen (2000) 199 CLR 620 at [41]: "Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case ( Alford v Magee (1952) 85 CLR 437 at 466 per Dixon, Williams, Webb, Fullagar and Kitto JJ). No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issue ( Alford v Magee (1952) 85 CLR 437 at 466 per Dixon, Williams, Webb, Fullagar and Kitto JJ). It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence (for example, Longman v The Queen (1989) 168 CLR 79; Domican v The Queen (1992) 173 CLR 555))". 271 For the Crown it was submitted that in the present case, given its length and complexity, it was necessary for the trial judge to identify the issues and to provide the jury with a summary of the position of each party concerning those issues. It was not necessary, nor indeed practical, for his Honour to have reminded the jury of every single argument raised by each party in support of its position on each issue. 272 The Crown cited from the joint majority judgment in Domican at 560-561, as to the responsibility of a trial judge in directing a jury as to matters of fact or argument: "A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence: Ali Ali (1981) 6 A Crim R 161, at p 164, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. Section 405AA of the Crimes Act 1900 (N.S.W.), which came into force after the trial of the appellant, provides that a judge of the Supreme or District Court need not summarise "the evidence given in the trial" if he or she is of the opinion that in all the circumstances a summary is not necessary. Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused: Reg v Lowery [No 3] [1972] VR 939 948. This Court has said that it "is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities": Basto v. The Queen (1954) 91 CLR 628 at 637. Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence: Reg v Matthews and Ford (1972) VR 3, at 15-16. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence: R v Davies and Cody (No.2) (1937) VLR 226, at 236-237; Reg v Melville (1956) 73 WN(NSW) 579. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way". 273 His Honour told the jury that he would not be referring to all of the evidence but that they should consider the whole of the evidence and not feel limited by his Honour's selection. He also told them that he would not be summarising all of the arguments of counsel but that they should have regard to all of the arguments which they find to be persuasive and not feel limited to those to which his Honour would refer. 274 The Crown case on motive was encapsulated in the Prosecutor's final address thus: "So, by killing John Newman, he had the prospect of getting a Lower House seat. If he failed in that, he had a much improved prospect of getting an Upper House seat and, in any event, it meant an end to the continual mud throwing that John Newman had been engaged in for many years". 275 Amongst other things the Crown had pointed to the evidence that through 1994 the appellant had acquired increasing support by the recruitment of members to his Canley Vale branch and that he had the support of influential people in the party such as Messrs Macleay, Richardson, Della Bosca and Grace. It is submitted that the appellant "had every expectation of receiving permission to waive that two-year rule". 276 The Crown supported this argument by reference to three items of evidence. 277 First, drawing from the evidence of Michael Cameron, two days after the murder (and on 7 September 1994) the appellant expressed to a journalist his interest in being a candidate for the vacant seat if the preselection was held locally.
278 Secondly, in his police interview of 14 September 1994, the appellant gave a similar response: "Q357: Have you got any, would you care to tell me what your political ambitions are at this moment? A: I have made very public that I will be interested in serving the electorate or the community in capacities other than Councillor. I leave my options open to either go to State or Federal Parliament. I still wish to pursue that. Q358: do you intend on attempting to gain pre-selection for John Newman's seat? A: You mean now or previously? Q359: Now? A: I thought about that. There are some pros and cons there, but I would have to wait and think about it very carefully, so that the community in Cabramatta and particularly my community will not suffer for any wrong decision that I make. But, at this very moment I believe that in Cabramatta, to address the problem we are having there, we need some very strong sense of leadership that could unite the community and together we get over this. Q360: So… A: I haven't made up my mind yet. I would have to talk to some party officials, community leaders and to see you know, what they think". 279 Thirdly, at a press conference on 15 September 1994, when pressed as to whether he would be a candidate for preselection, the appellant did not answer in the negative, or refer to any lack of ambition in that direction. For example: "Q: Mr Ngo will you now be seeking preselection for Mr Newman's seat of Cabramatta? A: Again, I strongly believe at this very moment what Cabramatta needs is a strong sense of leadership, a person who can unite a community a work for the rebuilding of a better Cabramatta. Q: Are you that man, Mr Ngo? A: And I strongly believe that the party with all its wisdom will be able to choose the right person for this very difficult situation. … … Q: Given your responsibility to the community and the vacuum that now exists in Cabramatta, if the situation arises, would you be happy to take on Mr Newman's mantle as the State member for Cabramatta? A: As I said, you know, in the past, and I repeat it again, if I had the chance to serve the electorate in the capacity other than my Councillor capacity I would be very honoured to do so, but, I believe the party, the members of the party, with all their wisdom would choose the right candidate for Cabramatta, as I said to [untie] every sectors of the community together to work for future". 280 The appellant's case was that there was no such motive. In support of this it was contended that such animosity as there was between the appellant and the deceased was all one way: directed by Mr Newman at the appellant. The appellant only had ambition for an Upper House seat; that even if he did want to seek preselection for the Lower House seat, he was ineligible according to the rules of the Party as he had less that the qualifying period of membership of two years; and, moreover, such prospect as there might have been to obtain a waiver of the "two-year rule", there was no evidence he sought it. 281 We are of the view that after providing the jury with a summary of the evidence of the political witnesses, his Honour fairly summarised the arguments of each party on the issue of the appellant's motive. He specifically included reference to submissions made concerning the two-year rule. In the context of the overall case, in which the subject of motive was hardly the main issue, this summary was sufficient. It was not necessary for his Honour to say more in order "to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence" (Domican). 282 In the course of oral submissions, junior counsel for the appellant took pains to amplify the fundamental submission for his client as to the deficiency of his Honour's Summing-up by reference particularly to the evidence of Mr Arbib and the waiver in special circumstances of the two-year rule. Further attention was paid to the evidence of Mr Grace and the submissions for the Crown and defence in relation to this body of material. It was contended that the approach of his Honour in his Summing-up could well have left the impression in the minds of the jury contrary to what was said to be the thrust of Mr Arbib's evidence. 283 Having considered this component of the evidence in the submissions and the Summing-up we are of the view that there was no misrepresentation, in the end, of the evidence or of each side's submissions on it. 284 The statements of principle in RPS and in Domican can be related back to what this Court said in 1990 in Reg v Zorad at 105. Whilst an application was made by counsel for the appellant, it did not involve his Honour withdrawing anything. It was an exercise in seeking to have his Honour make specific reference to a particular part of Mr Arbib's evidence (although the application did not spell it out in detail) and to have his Honour charge the jury again in relation to evidence in respect of Mr Grace and the defence's submissions thereon. 285 The conclusion can be reached in the light of the principles referred to that his Honour's directions to the jury were neither unfair nor in any other respect flawed. This view has been formed by looking at this component of the trial discretely, and also by putting this component of the trial in context of its whole edifice and the whole context, approach and structure of the trial Judge's Summing-up. This Ground of appeal fails. Ground 15 - the Judge failed to direct the jury adequately as to the significance of the acquittal of other accused 286 It is desirable to set out as completely as possible those parts of his Honour's Summing-up to which this Ground and Ground 15B relate. 287 Early in his Summing-up his Honour reviewed the Crown case against the respective accused: "In the present case the Crown alleges that the accused David Dinh was the shooter, that he actually fired the shots. If you are satisfied beyond reasonable doubt that he did, you will find the accused Dinh guilty of murder. If you are not satisfied beyond reasonable doubt that he was the shooter, you will find him not guilty, because it is not alleged that he played any part other than actually doing the shooting. In other words, common purpose or joint criminal enterprise is not relevant in the case of David Dinh. The case against the accused Phuong Ngo is different. It is alleged by the Crown that he planned and organised the murder of John Newman and arranged for it to be carried out. Furthermore, it is alleged by the Crown that he was present in or near Woods Avenue, in the white Camry, at the time the murder was committed, giving instructions and supervising the operation over the car phone. It is also alleged that he disposed of the murder weapon by throwing it into the Georges River later that evening. This disposal of the weapon is relied on as evidence supporting the allegation that he planned and organised the murder. If you are satisfied beyond reasonable doubt that the accused Phuong Ngo did instigate, plan and organise the murder, or that it was committed at his direction, or by agreement with him, or if you are satisfied that he was present in the Camry in Woods Avenue, supervising the arrangements for the killing and/or ready to render assistance to the shooter in connection with the killing, you will find Phuong Ngo guilty of murder. If you are not satisfied of any of those matters beyond reasonable doubt, you will acquit him. When I say "not satisfied of any of those matters" I mean that it does not matter if you are not satisfied of all of them, but if you are not satisfied of any of them you will find him not guilty. The Crown case against the accused Quang Dao is that he drove the shooter to Woods Avenue so that he could shoot John Newman, knowing that he intended to shoot John Newman and then drove him away from the scene. If you are satisfied beyond reasonable doubt of both of those matters, namely that he drove the shooter to Newman's house and knew when he did that it was intended to shoot John Newman, you will find him guilty. If you are not satisfied of both those matters, you will find him not guilty. There has in the submissions been a suggestion that T, who admits he was in the car on the night in question, may have been the shooter and not David Dinh. That does not matter in the case of the accused Phuong Ngo or the accused Quang Dao because even if T did the shooting, if he did it at the instigation or by agreement with Phuong Ngo, Phuong Ngo would still be guilty of murder. As regards Quang Dao it does not matter who did the shooting, provided that he drove the shooter, whoever it was, to John Newman's home, knowing that he was driving him there for the purpose of shooting John Newman. Who the shooter was does matter in the case of David Dinh, because as I have already said he is charged as the shooter. If you are not satisfied beyond reasonable doubt that he was the shooter he must be acquitted. But if you are satisfied beyond reasonable doubt that he was the shooter then you find him guilty. In the case of Quang Dao, as I said, it does not matter who the shooter was, provided Quang Dao drove him to the scene with knowledge of what was intended. Therefore, it was incorrect for Mr Cusack to say that if Dinh is acquitted Dao must also be acquitted". 288 When his Honour came to "some general submissions" which had been made on behalf of the Crown and various accused, he said: "The Crown case against Phuong Ngo, as put by the Crown Prosecutor, was that T and N were not acting on their own behalf. They had no motive to kill John Newman. Most of their evidence is corroborated. So, you would ask yourselves why would they do it, if not for Phuong Ngo, as they say? … It is not necessary as against Phuong Ngo to establish who was the shooter, Dinh, T, or someone else, provided that you are satisfied beyond reasonable doubt that such person was acting at the urging of, or by arrangement with, Phuong Ngo. …
The Crown submits that Dao was engaged in a joint criminal enterprise as the driver. It does not matter, in the case of Dao, who the shooter was. Dao was still there to drive the shooter, whoever it was. That is the Crown case. … So, to summarise, the Crown submits that it does not matter if you feel that T may have had a greater role in 5 September than he admits. The Crown asked you to look at what he called the big picture and submits that at the end of the day you will be satisfied beyond reasonable doubt that the killing was organised or instigated by Phuong Ngo, that David Dinh was the shooter, and that Quang Dao was, with knowledge, the driver who drove the shooter, whoever that shooter was, to John Newman's house. Each of the accused, through their counsel, submit that you would not be so fast satisfied of these matters beyond reasonable doubt". 289 A submission was in due course made by Mr Cusack of counsel for the accused Dao: "The other point is in relation to the accused Dinh. Your Honour has quite rightly said, if Dinh is acquitted, Dao is not entitled to an acquittal himself. If Dinh is acquitted, I would ask your Honour to tell the jury, if they find Dinh not guilty, it is a strong factor in relation to the credibility of T, and, using that, my client is entitled to rely on that on that basis as regards to the credibility of Mr T. HIS HONOUR: I will think about that". 290 His Honour further stated: "HIS HONOUR: If Dinh is acquitted, it goes to the credibility of T. CROWN PROSECUTOR: That involves an argumentative fallacy. The jury may nearly be in the position, in relation to Dinh, of not being satisfied, to the requisite degree, that he was the shooter because it is not required, in relation to Mr Dao and Mr Ngo, that Mr Dinh be the shooter. HIS HONOUR: No. It goes to his credibility. It does not disprove the case against the other two. It is a bit like the sexual assault cases where, if they do not believe the complainant on the one count, and they do believe her on the other count, there is no supporting evidence. That fact that they do disbelieve her on one count means that they should have a reasonable doubt on the other one. CROWN PROSECUTOR: That is not necessarily the case. It may be the case, but it is not necessarily the case".
291 His Honour then gave a "dangerous to convict" direction in the following terms: "I gave you a detailed warning about how the evidence of an accomplice witness, particularly one with an indemnity, may be unreliable. In addition to what I said, would you also bear in mind that if you do not find any corroboration or confirmation or support of the nature that I described to you, it would be dangerous to convict on such uncorroborated evidence of an accomplice without subjecting it to close scrutiny and unless you were satisfied of its truth and accuracy". 292 In relation to what arose during the discussion just cited, his Honour directed the jury as follows: "I certainly conveyed the impression, as I intended to, that, if Dinh was acquitted, that did not necessary mean that Dao had to be acquitted. Mr Cusack's submission was that, if Dinh is acquitted, it would mean that you did not accept T's evidence that Dinh was the shooter. If you did not accept T's evidence that Dinh was the shooter, well then, that would affect the credibility of T, and you would take that into account in determining whether or not you accepted his evidence in relation to Dao". 293 In relation to the last extracted matter, it is accepted by the appellant that his Honour's observation was "literally correct". However, the appellant points to what he says is the "apparent restriction" of the applicability of the approach to T's evidence in relation to the accused Dao being unfairly prejudicial to the position of the appellant. It is argued that for the jury to appreciate the available use of the rejection by it of T's evidence in relation to Dinh, it was necessary for them to be told that they could also take into account their rejection of T's evidence when considering what he had to say against the appellant. The jury should have been given "further careful directions" about the consequences of an acquittal of both Dao and Dinh. First, it would have brought into play a doubt about the credibility of T; secondly, if would have affected any corroborative use of T's evidence in the assessment of other witnesses; thirdly, the acquittal of Dao "may" have also involved the entertaining by the jury of a doubt as to the credibility of N, because N gave evidence against Dao in relation to preliminary steps and earlier attempts with respect to the deceased. 294 Further, the jury should have received "substantially more assistance" than it is submitted they did, to the effect that in the event that the jury entertained doubts about Dao and Dinh, they would have to, of necessity, look elsewhere in the evidence. It was argued that depending upon what view was taken of these witnesses the jury may have had to place reliance entirely on other evidence, namely, Mr and Mrs L, ballistic evidence and lies told. 295 What is described as a further "aspect" of the matter is those directions given to the jury in relation to the identity of the shooter set out above in the lengthy extract from the Summing-up first cited. Again, the appellant acknowledges that what his Honour said in relation to the suggestion that T may have been the shooter and what followed from that suggestion was "literally correct". What is argued, however, is that it is far too "dogmatic" in the context of "likely" jury deliberations to say that "it does not matter who was the shooter". The appellant argues that it was not as the directions suggested simply a case of substituting T as the shooter for Dinh as the shooter, the more so when the Crown case had been opened on the basis that Dinh was the shooter. The suggestion, as became clear in the course of oral submissions before us, that Dinh may have been the shooter, was advanced at trial by counsel for Dinh. 296 The appellant acknowledges that the Crown did not have to prove beyond reasonable doubt in the case against him that Dinh was the shooter. The appellant however submits that any suggestion that Dinh was not the shooter had the potential, in the absence of proper direction and assistance from the trial judge, to unfairly and adversely affect the jury's assessment of the case against the appellant. 297 In the course of oral submissions it was acknowledged that no express further direction was sought especially after his Honour, in his charge to the jury, stated that he "certainly conveyed the impression" as set out above. The nub of the complaint is, as we perceive it, that the notion of T being the shooter should not have been introduced at all. It was. It was introduced by counsel for Dinh. A forensic explanation for such a step could be described as readily apparent. The introduction of the notion of T being the shooter was one that effectively, so Mr Game argued, enabled the avoidance, as it were, of the problem that the jury "would have had" if they were not satisfied beyond reasonable doubt on T's evidence that Dinh was the shooter. Even in that context however Mr Game conceded that the jury could have still convicted. The statement by his Honour that "it does not matter who was the shooter" was seized upon and advanced to the contrary, namely, that it "does" matter and in "a very big way". What, it is argued, that statement by his Honour involved is a process of reasoning to the conviction of Ngo measured against the credible account of which the jury was satisfied in the case of T. Whilst it was correct to say that the appellant could be convicted and Dinh and Dao acquitted, the appellant could not have been convicted based upon a line of reasoning founded in the acceptance of the proposition that T was the shooter or that "it does not matter" if T was the shooter. The suggestion advanced from the Dinh camp that T may have been the shooter, it is argued, does not convert a case against Ngo based on the proposition that T was the shooter. This last proposition is amplified in Ground 15B to which we will come shortly. 298 As the Crown contends, the appellant's submissions appear erroneously to assume that an acquittal of Dinh meant that the jury "rejected" T's evidence. The Crown points to the dubious validity of the proposition advanced on behalf of the co-accused Dao (relied upon by the appellant) that if the jury had a doubt about T's evidence that Dinh was the shooter, that would have a bearing on the credibility of T's evidence in relation to Dao. It is clear the cases against the two co-accused heavily depended upon the evidence of T. An acquittal of Dinh, however, may merely have meant, and we agree, that whilst the jury accepted the evidence of T, they were not prepared to return a verdict of guilty because they were not satisfied by the degree of or the existence of corroboration of his evidence in relation to Dinh. This has more force given the "dangerous to convict" direction given where corroboration was absent. 299 The situation was different in respect of the case against the appellant. T's evidence of course was an important component; he was a principal witness, but there was an abundance of other evidence as well. This would have been evident to senior counsel for the appellant at trial: the prosecution case against Ngo was more complex than the case against Dao and Dinh; no further submission was made or request for a specific direction. This can now be viewed as perfectly comprehensible when senior counsel had secured the trial Judge's agreement to give the "dangerous to convict" warning. As was submitted by the Crown, nothing more advantageous to the appellant could be achieved. 300 We are of the view, noting the acknowledgment of the "literal correctness" of the directions to which reference has been made, that the discrete Ground 15 has not been made out. This is so when one views first, the introduction of the notion by Dinh's counsel that T may have been the shooter, when one acknowledges that that scenario formed no part of the Crown case at all, and by viewing over all the Summing-up especially the portions extracted above. We are not persuaded in relation to Ground 15 discretely, that, in the context to which reference has just been made, any unfairness arose from an otherwise correct statement by his Honour as to it not mattering who the shooter was, in the context of the "dangerous to convict" direction, and taking into account the considered forensic stance adopted by senior counsel for the appellant. 301 When one considers the submissions for the appellant and the starting point of acknowledgment of correctness, it can be seen, with respect, that they involve an attempt to transpose what, in argument, might be a legitimate course of speculation as to a possible process of reasoning, to an assertion that that speculative course became an inevitable reality for the jury in the discharge of its function. A close and sensible examination of his Honour's directions overall might give rise to the submission in the form in which it was presented, but cannot give rise to the conclusion that in any real sense the task of the jury was affected at trial by the same considerations to the prejudice of the appellant.
Ground 15B - the trial Judge erred in leaving as a possible basis for conviction in the case against the appellant, that the shooter was T 302 As stated above, this Ground of appeal is an elaboration of Ground 15. The Ground focuses on the proposition ultimately left to the jury to the effect that T was, or as we see it, "may" have been the shooter. 303 In aid of the development of the argument in support of the supplementary ground, the following extracted materials are highlighted from the Crown's opening address and closing address. 304 In his opening the prosecutor said: "In this case the Crown alleges that the actual shooter of the late John Newman was David Dinh. It is alleged that the mastermind of the killing of John Newman was the accused Phuong Ngo, and it is alleged that the driver of the car which took David Dinh to the scene of the shooting and then drove him away afterwards, was the accused Quang Dao". 305 He continued: "In this case … all three of the accused were engaged in a joint enterprise to kill John Newman on the day that he died, which was 5 September 1994. The Crown case is that Phuong Ngo was not just the mastermind, but the instigator, the originator of the plan to kill John Newman and there were various people who came in and out of this joint enterprise at different times". 306 Later he said: "[T]he Crown alleges that there were some people who were involved that even Phuong Ngo didn't know about, because they were lower down the chain and I will explain to you about that later. Who they are and what they did. But these three accused were intimately involved on the night of the killing, all three of them were intimately involved on the night of the killing Now, the other thing is that sometimes the Crown can't prove what the exact role was of a participant in a criminal enterprise. If the Crown can prove that that person was involved, but the Crown can't say exactly what that person did at a particular time, that doesn't matter. If the Crown (sic) are satisfied that the person was involved in the joint criminal enterprise, that is sufficient. And in some respects you will find that some of the people who were involved in this enterprise, we can't say exactly how much they did at every conceivable point of time . And you might think that that's perfectly understandable. This joint criminal enterprise went on for six months, so we can't say exactly what everyone was doing for every bit of those six months. That doesn't matter". 307 Later again he said: "The Crown alleges that this was a political assassination carried out by Mr David Dinh at the instigation of request of Phuong Ngo and with Quang Dao's assistance and also with the assistance of other people whom you will hear about in the evidence". 308 In closing his case against the appellant, the prosecutor said: "Now, ladies and gentlemen, so far as the case against Phuong Ngo is concerned, it is not necessary for you to decide exactly who the shooter was. We say it was David Dinh. But so far as the case against Phuong Ngo is concerned, all that you have to be satisfied of in order to convict him is that he was involved in the enterprise that resulted in a shooter, whoever it was, killing John Newman. Let me give you some alternative hypotheses which are not part of the Crown case because I have to try and anticipate what your thought processes might be. Let's assume at the end of the day that you are not sure whether T was there as an observer like he said he was. It may be you think he had some idea what was going to happen that night. That, in itself, would not prevent you from convicting Phuong Ngo. So long as you are satisfied that John Newman was killed by a shooter, whoever it was, that was part of the joint enterprise that Phuong Ngo was the mastermind of, then you could convict Phuong Ngo. I will address you later in relation to the situation with Quang Dao and David Dinh. In relation to David Dinh it is somewhat different. So, even if you aren't satisfied who the shooter was, you could still convict Phuong Ngo. Now, of course the Crown case is unequivocally that David Dinh was the shooter and that T was there having been duped by Phuong Ngo to be in the car. He knew what was going to happen by the time of the shooting. There was nothing stopping him getting out of that car and saying, "Sorry, I'm not part of this; I'm out." Because when he saw that white car he realised where he was and he knew that something awful was going to happen, and he had seen the gun and the gloves. So he is no angel, in a sense he was involved in the shooting because he knew something dreadful was going to happen, but he says he was duped into getting into the car. I will come a little later to consider that more closely, particularly in relation to the case against David Dinh". 309 In closing, as to Dinh, the prosecutor said: "Now, there is a little bit more that I would like to say about the identity of the shooter. In relation to the case against David Dinh because the Crown alleged that he was the actual shooter and that that was his role, the Crown, in relation to David Dinh, needs to prove that he was the actual shooter. That's the only essential fact that needs to be proven beyond reasonable doubt in relation to David Dinh. Now, again I don't know what your conclusion might be on the facts or what your thinking may be on the facts. It is not necessary for you to come to any definitive conclusion about whether or not Mr T had any other role on that night, other than what he says he had, which was, in effect, as an observer, in relation to the case against David Dinh. Or to put it another way, if you are satisfied that David Dinh was the shooter, but you are not sure what T's role was, that does not mean that you cannot convict David Dinh. You can still convict David Dinh. Of course, T says that he was duped into going in the car and he was just an observer that night. But if you were not satisfied of that beyond reasonable doubt that does not matter. All you need to be satisfied of beyond a reasonable doubt is that David Dinh was the shooter. If you are not satisfied that David Dinh was the shooter, then he is entitled to be acquitted. If you are satisfied that David Dinh was the shooter, then your duty is to convict him. Of course, the Crown case is that Phuong Ngo would not have got T to be a shooter. He would not have got this man who would not even hold the gun at the John Newman home attempt. There was only one gun that was fired at John Newman's home. Lucy Wang only saw one person. T had shown this reluctance to even touch the gun at John Newman's home in the earlier attempt, let alone fire it in quick succession four times. You might think that if a gun had gone off even once in Mr T's hands he probably would have dropped it in fright. We submit that he could not have been the shooter. Even N thought that T was a hopeless assassin. That's why he left the joint enterprise". 310 The appellant then sets out the passages from the Summing-up cited above. 311 The appellant submitted that the only evidence as to T's role in the car on the night came from T and it did not change. It was suggested to him by counsel for Dao that he was the shooter but this was denied. To counsel for the appellant T said that he played no role in the shooting at all. There was the evidence of gunpowder residue on T's coat lining but that, as far as the appellant was concerned, was as far as the evidence went in pointing to T being the person who discharged the firearm. 312 The submissions outlined above in relation to Ground 15, especially those made orally, are repeated to the effect that in addressing the question of the liability of the appellant, the jury should not have been left with the proposition available to them for consideration that T was the shooter in the absence of any evidence in addition to the material above referred to. Even assuming that there was a foundation in the evidence for such a proposition - that T was the shooter - the appellant submits that it meant that the jury at least on that version must have rejected T in respect of fundamental aspects of his evidence. That, it was submitted, clearly would have had most serious implications in relation to his credibility in connection with the case against the appellant. It was argued that the directions given by the learned trial judge had the effect of downgrading the difficulties with which a trier of fact must have been confronted, if not satisfied that Dinh was the shooter, in the case against the appellant. In summary, as was contended essentially in relation to Ground 15, it was submitted that, first, the jury was told that an acquittal of Dinh would affect the credibility of T in relation to Dao (and, it is said, by implication, of the appellant). Secondly, and coupled with, the fact that the jury were invited to consider the proposition the T himself was the shooter without addressing the various "serious implications" that this would have had for T's credibility in the case against the appellant, this combination of errors, the appellant contends, caused the trial to miscarry. 313 In oral submissions the Crown was understandably a little confused as to what precisely was being put by the appellant in relation to the Crown's posture with respect to the proposition that T may have been the shooter. In so far as the appellant's submissions seem to suggest that the Crown had changed its case late in the peace, there was no foundation for that. The suggestion, as has been stated, came from Dinh's counsel. In relation to there being no evidence that T was the shooter there was material, as the Crown submitted, of which the defence in the trial took some advantage. The lining of the jacket seized from T's home, a jacket that did in fact belong to him, was found to have upon it Winchester gunshot residue, Winchester gun powder conclusively having been shown to have been involved in the ammunition used in the crime. That constituted a basis for the defence to raise if not pursue the notion that T himself was the shooter. 314 In relation to the appellant's reliance on T telling senior counsel for the appellant that he played no role in the shooting at all, it is pointed out that T did not tell counsel for the appellant that "gratuitously": the matter arose in the cross-examination of T by Mr Cusack for Dao: "Q. Then you had to have a shooter. That's a person who used the gun, didn't you? A. That's right, yes. Q. That was to escape your culpability, wasn't it? A. Can you put the question again? Q. Is it the fact that you were the shooter? A. No, sir. Q. You deny that, do you? A. I didn't do it"
Further, the gunshot residue on his jacket was something mentioned in the address of counsel for Dinh. The Crown case "was" that Dinh was the shooter.
The Crown points to the jury as having been reminded by his Honour, after further submissions were made, as to the role played by Dao. This further direction was given as a result of a question asked by the jury: "The jury would like to know do we have to deliberate in whether Quang Dao was the driver on the night of the murder and if he was involved in the common purpose or just if he was involved in the common purpose?" 315 His Honour then said to the jury in answer to their question: "The only part allegedly played by Quang Dao on 5 September 1994 was as driver of the vehicle. You must be satisfied beyond reasonable doubt that he drove the shooter to the scene and that he knew, when he did so, that they were going there to shoot John Newman. He must be part of the common purpose but the proof that he was part of the common purpose is his knowledge that they were going there to shoot John Newman. If he knew they were going there to shoot John Newman and he was the driver, that is it. That establishes his part in the common purpose. If you thought that he had been part of the common purpose prior to 5 September but were not satisfied beyond reasonable doubt that he was outside John Newman's house on that night, he must be acquitted". 316 No further direction was sought in relation to that by Mr Cusack. 317 His Honour said quite clearly that the case against Dao was a very confined one which did not necessarily involve the identity of the shooter. 318 As the Crown put it in oral submissions in relation to Dinh it was a very limited case: was he the shooter? - otherwise acquit. In the case of Dao: was he the driver of the shooter? - otherwise acquit. In respect of the appellant the case was much more broad involving responsibility, in the way in which his Honour described it, in which the identity of the shooter, correctly, was not an essential part. 319 There seems to have been a suggestion in the appellant's submission that if T was the shooter then he was not doing it for the appellant. There was no material in the trial, as the Crown says, that if he was doing it, that he was not doing it for Ngo. The logic is missing because if T was the shooter it did not necessarily mean he was not doing the shooting for Ngo. 320 The appellant in reply, in brief oral submissions, referred again to the "propping up" of T as the shooter in the absence of evidence on the one hand and in the direction to the jury, on the other, that "it does not matter". The floating of the notion that T was the shooter, the appellant repeated, created a whole different scenario in terms of credibility. 321 We are of the view that with the utmost respect to the submissions advanced for the appellant on Grounds 15 and 15B, in relation to the latter nothing was advanced further that would persuade us that the supplementary Ground 15B, discretely or in some way combined with Ground 15, has been made out. In the end, what the learned trial judge in his Summing-up did was conformable, first, with the fundamental structure of the Crown case relating to Dinh being the shooter, and secondly, by adverting to and placing in context, in our respectful view, the suggestion that T may have been the shooter, properly, firmly and with clarity reinforced for the jury, as was described during the course of oral argument, the very important proposition that in a joint trial of this kind the three cases have to be kept separate and that the only thing that was alleged against Dinh was that he actually fired the shot. That Dinh was the actual shooter was the essence of the Crown case against him. In relation to the other two accused, as his Honour quite rightly said, it really did not matter who the shooter was provided the Crown proved beyond reasonable doubt in the case of Dao that he drove the car; and that in the case of the appellant he was the mastermind. 322 A perception reflected in the appellant's submissions as to the significance of the suggestion by one co-accused that T was the shooter has been elevated disproportionately in our respectful view. The suggestion made was properly dealt with by his Honour within the fundamental structure that it was the Crown case that Dinh was the shooter, Dao was the driver and the appellant the mastermind. We are not persuaded, viewing the whole of the Summing-up and the way in which his Honour dealt with each case in appropriate fashion, that the approach of the jury was imperilled by either the introduction of the notion of T being the shooter, his Honour's dealing with it, or that there is any basis for concluding by reason of a conviction that the jury went astray in that regard. 323 Grounds 15 and 15B fail.
Ground 18 - the trial Judge failed to direct the jury adequately as to the limits on the use they could make of the evidence of the previous attempts and plans to kill the victim 324 There was evidence from T and N as to their involvement in two attempts to kill the deceased carried out at the direction of the appellant. N gave evidence of his and T's involvement with the appellant in further plans to kill the deceased though T denied these matters. Both gave evidence of their purchases of firearms (at the behest of the appellant) and their attempts to recruit other persons to kill Mr Newman at the behest of the appellant. The broad canvas of the evidence has been covered in relation to Ground 8. 325 In relation to this material his Honour directed the jury as follows: "Finally, let me draw your attention to the fact that the accused are charged with the murder of John Newman on 5 September 1994. They are not charged with any of the previous attempts on his life, or loitering in Judith Avenue or Bowden Street the previous week, or the illegal purchase of firearms. Evidence on these matters is only relevant insofar as it tends to prove the participation of the various accused in the murder of John Newman on 5 September and their involvement in the common purpose to bring about such a murder". 326 The appellant contends that it was necessary for the learned trial Judge to warn the jury that if they were satisfied of the appellant's involvement in any or all of these activities they were not entitled thereby to reason that he was more likely to have been involved in the murder by reason of being of bad character or having a propensity for criminal or violent conduct. 327 This Court was referred to the observations made by Kirby J in BRS v The Queen (1997) 191 CLR 275 at 331-2 as to the need for a direction clearly limiting the use of evidence that raises an accused's propensity. That was a sexual assault case and, of course, in that trial no direction at all was given. 328 A substantial amount of time was devoted in the Crown case to the activities of the appellant preparatory to the offence. Thus, it was said, there was a danger that the jury would conclude that the appellant was of a violent or criminal disposition and use that conclusion improperly to fill any gaps that there might be in the Crown case and thus, without an appropriate warning and full directions, the trial miscarried. 329 As the Crown has pointed out, evidence of the earlier activity (the purchase of firearms and an attempt to recruit a shooter at the behest of the appellant and the abortive plans and attempts to kill the deceased) was evidence of the preparatory activity which culminated in the events of 5 September 1994. The evidence was relevant to the existence of a joint criminal enterprise, presided over by the appellant, to murder Mr Newman on that date. As the Crown, in our view correctly, points out, the quality and purpose of that evidence was different in nature to that with which the High Court was concerned in BRS. In that case the evidence was of the appellant's similar sexual misconduct with another pupil on an occasion not the subject of any count in the indictment. It was led in rebuttal of evidence tending to establish the good character of the appellant. 330 It was argued for the Crown that evidence of events in the nature of preparatory activity leading to the commission of the subject offence does not, generally speaking, carry the risk of a jury adopting impermissible propensity reasoning. The Crown characterises the appellant's submissions in relation to this ground as tantamount to saying that a trial judge has an obligation to warn a jury that evidence, for example, of the illegal acquisition of a firearm and the theft of a car cannot be used to reason that an accused must be guilty of the armed robbery for which the accused stands charged. That reasoning would be so illogical as to constitute an affront to the intelligence of jurors. The Crown suggests that dangers of improper reasoning are more likely to arise in sexual assault cases involving children, which trials arouse emotions especially. For the reasons stated above BRS, being a sexual assault case in which no direction was given, is not quite to the point.
331 It can be seen that his Honour gave the jury a clear direction as to the only use that could be made of the evidence. This direction, at least implicitly, warned the jury against making any other use of the evidence. It is the absence of the express warning as to how "not to" use the evidence that is the subject of complaint. 332 The general subject matter to which this ground relates, was only raised in the context of the period to be covered by the evidence of preparation in the course of Mr Nicholson's closing address to the jury. Otherwise it must be observed that at the time the evidence was given no objection was taken to it. At the time the evidence was given no request was made by any counsel for his Honour then to direct the jury as to the use to be made of it. Further, upon his Honour directing the jury in the terms set out in the passage above, no application was made by any counsel for a further direction. 333 In the course of oral submissions on appeal much emphasis was placed on this failure in the course of the conduct of this substantial trial by experienced counsel. As was further remarked it has been consistently stated in this Court that trawling through a Summing-up after the conclusion of a trial when no complaint was made by the appropriate person at the appropriate time was a course to be "deprecated" to use the language of Street CJ in R v Chidley (1956) 73 WN (NSW) 376; see also R v Saffron (1988) 17 NSWLR 395 at 434. The failure to object or to seek a redirection can often indicate that the point taken on appeal was not, in the atmosphere of the trial, considered to be important and thus lead to the conclusion that there as been no miscarriage of justice. 334 In this instance it is quite correct, upon the analysis of the words used by his Honour in the cited paragraph, that his Honour does not in express terms indicate to the jury how they are not to use the evidence. He makes it perfectly clear, however, how they are to use the evidence. It is clear that this was a forceful and important concluding component within the structure of his Honour's Summing-up. It did not, however, provoke the slightest protest or complaint. 335 During the conduct of the trial, leading to the creation of its very atmosphere, it is patent that the evidence of this other criminal behaviour was directed to the preparatory steps to the commission of that offence for which the three accused stood trial. No other characterisation occurred to counsel (and, it must be acknowledged, to his Honour) that warranted forensic intervention or judicial clarification. 336 We do not see how in those circumstances the appellant can now argue for the first time that he has suffered a miscarriage of justice, the more so in circumstances given the scale of this trial and the quality of legal representation when there was no perception of any risk thereof at the pertinent times. 337 This ground of appeal fails.
Last Modified: 04/22/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Regina
Ngo
[2002] HCA 33
(1952) 85 CLR 437
(1954) 91 CLR 628
(1997) 191 CLR 275
(1992) 173 CLR 555
(1990) 171 CLR 207
(2002) 192 ALR 181
(2001) 208 CLR 593
(1985) 156 CLR 473
(2002) 190 ALR 441
(1936) 55 CLR 499
(1989) 168 CLR 23
(1959) 101 CLR 298
(1991) 171 CLR 468
(1978) 20 ALR 513
(1963) 110 CLR 234
(1992) 174 CLR 558
(1992) 177 CLR 292
(1992) 173 CLR 592
(2000) 199 CLR 620
(1988) 17 NSWLR 395
(2001) 52 NSWLR 301
(1994) 181 CLR 41
(1990) 19 NSWLR 91
(1978) 52 ALJR 631
(1983) 2 NSWLR 733
(1995) 1 VR 84
(2000) 76 ALJR 1552
(1989) 168 CLR 79
Appeal against conviction dismissed: [338].