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.