REGINA v PHAM

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70218/01 FILE NUMBER(S) : LOWER COURT Sully J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60009/04

SPIGELMAN CJ HULME J ADAMS J

1 SPIGELMAN CJ: Subject to the additional observations of Hulme J with which I agree, I agree with Adams J and the orders he proposes. 2 HULME J: In this matter I have had the advantage of reading the Reasons for Judgment of Adams J and it is accordingly unnecessary for me to recount in any detail the facts. 3 In short the issue for this Court which was raised by the first ground of appeal is whether, notwithstanding the trial judge exercised his discretion not to order that the trial of the Appellant be held separately from the trial of his brother and third suggested co-offender, this Court should hold that the Appellant's trial miscarried. 4 The basis for the contention that it did miscarry was this. The only substantial evidence against the Appellant was that of two witnesses both of whose credibility was the subject of substantial attack and at least one of whose credibility left a lot to be desired. It was submitted that in this situation it was wrong for a joint trial to be held where there was also evidence against the Appellant's brother in the form of a recorded interview which very substantially implicated its author and, had it been admissible against the Appellant, would also have being very incriminatory of the Appellant. 5 The Appellant submitted, and the Crown did not dispute, that the relevant principles governing the exercise of a trial judge's discretion when asked to grant a separate trial, are set out in R v Middis (unreported, Hunt J, 27 March 1991) and accepted by this Court in R v Baartman (unreported, CCA, 6 October 1994) and R v Georgiou [1999] NSWCCA 125. There was no discussion about these in either the written or oral submissions in the appeal. 6 Adams J has pointed out the difficulty there was likely to be for the jury, apparently persuaded of the reliability of the recorded interview when considering the case against the Appellant's brother, to put that interview out of their mind when considering the case against the Appellant. There is clearly a deal of weight in this argument although I do not need to reach a concluded view as to whether it should carry the day in this case. In all cases it is a situation where one needs to consider the significance of the various aspects of the evidence. 7 However in this case there is a further factor which to my mind compels the conclusion that the trial, so far as the Appellant is concerned, miscarried. During the Crown Prosecutor's address, very substantial attention was given to the extent to which the accounts given by the two witnesses to whom I have referred were supported by the statements in the Appellant's brother's recorded interview. In substance, it was submitted hat the jury could have confidence in the reliability of the evidence of those witnesses because it accorded with, and was supported by similar evidence in the interview. 8 Whether or not the jury could have put out of its mind when considering the case against the Appellant the recorded interview, inadmissible against him, there was no practicable way they could have assessed the credibility or reliability of the evidence of the two witnesses differently in the case against the Appellant than they had or would have done in the case against his brother. Thus in effect, the interview must have intruded into the case against the Appellant when it was not admissible against him. In reaching this conclusion, I do not disregard the judge's directions to the jury nor the commonly accepted view, which I share, that juries can and generally do, adhere to the directions they are given. But I do not believe that the jury could, in this case, separately form 2 assessments of the reliability of each of the Crown's principal witnesses, one assessment using the evidence of the interview and the other, by ignoring it. 9 In these circumstances the trial judge erred, at least after he had admitted the evidence of that interview, in rejecting the Appellant's application for a separate trial and, as against the Appellant, the joint trial miscarried. 10 The second ground of appeal was that "the jury verdict convicting the Appellant was unreasonable". 11 Adams J has pointed out that in the trial the area of dispute was very limited. There was no dispute that the Appellant had been picked up, carried in the car to the murder site and waited in it while the victim, the person who actually did the killing and a third person went for a short walk in a park during which time the victim was shot. The Appellant did not give evidence and the case advanced on his behalf, that he was but a mediator or "honest broker" was not inherently credible. 12 The Crown case was, as Adams J has said, supported by the evidence of Tran, the person who did the shooting and Lam, another person who remained in the car. Although their evidence was, as I have indicated, the subject of substantial attack, the question of whether it should be believed was primarily one for the jury. In its essential ingredients it was not inherently improbable and that of Lam particularly was not affected by such a degree of inconsistency that a jury was not entitled to rely on it. Nor, at least so far as one can judge from the printed page, was his credibility generally so damaged that the jury could not have believed him on the essential issues. It is not necessary to consider whether, had the evidence of either of these witnesses stood alone, the conviction could be maintained. 13 Nor do I find it necessary to reflect on the issue of the demeanour of these witnesses. This also was not the subject of debate in the appeal. 14 The second ground of appeal fails but the first succeeds. Accordingly, I agree with the orders proposed by Adams J.

15 ADAMS J: The appellant appeals from his conviction on 26 June 2002 of the murder of Thanh Chi Ly on or about 31 July 1996. Two co-offenders, Phong Pham (Phong) (the appellant's brother) and Minh Hoang Nguyen (Minh) were also convicted of murder. The prosecution case was that the victim was killed by three gunshot wounds to his head at the Endeavour Oval in the presence of the appellant, whose role as an accessory was disclosed by the shooter himself, Thuc Ngoc Tran (Tran) and another man who though present, was out of sight, Phuong Vu Lam (Lam). It was alleged that the victim was driven to the oval in a Honda owned by Tran with the appellant, the two co-offenders, Tran and Lam. Tran and Minh Nguyen escorted the victim from the vehicle onto the oval where he was killed. The other men remained in the car. 16 Although neither the appellant nor his co-offenders gave evidence, the Crown relied on admissions made by Phong in the case against him. The Crown case was that Tran, the appellant, his brother Phong and Minh arranged to kill the victim because he was associated with a rival gang and thus constituted a threat to them. At the centre of the Crown case was the evidence of Tran, who had himself pleaded guilty to the murder and had indicated a readiness to give evidence against his accomplices (the appellant and his co-offenders), for which he received the conventional substantial discount to his sentence. It is not controversial that Tran was a compromised witness, whose credibility was inevitably questionable but of crucial importance. Some significant aspects of Tran's evidence were supported by other witnesses. Thus, one Cuong Quoc Dang (Dang) said that, by arrangement with Phong, he invited the victim to Phong's house and was present with Minh, Phong and Tran when the victim arrived with Lam. Dang had heard Tran and Phong talk about a gun. Phong grabbed the victim and pushed him into the Honda. Minh, Tran and Lam also got into the car, which was driven off by Phong. An hour or so later Phong returned with Minh and Tran. They were laughing and talking about shooting someone in the head. Dang did not, however, directly implicate the appellant. 17 Tran gave evidence, in essence, that about three weeks before the murder the appellant asked him to kill the victim, explaining that he was a threat to him and his family, that he refused, that they then met again on the night in question, at Phong's direction, and that the two brothers ordered him to kill the victim when the car arrived at the oval. Tran said that the gun which was used was his and that he had acquired it some three weeks earlier to protect himself. Tran was subjected to extensive cross-examination which, it is fair to say, demonstrated a number of lies and significant inconsistencies which must have had a significant adverse impact on his evidence. 18 I do not propose to analyse Tran's evidence in detail. The learned trial judge directed the jury - "…on the view most favourable to him, he has told lies on occasions when it would have been expected reasonably that he has told the truth. He has told lies to the immigration authorities; to the Police who originally interviewed him; to the committing magistrate; to the Court in which he was sentenced as recently as April (ie 2002); and this very trial." 19 Amongst other matters, Tran had originally told the investigating police officers that it was Phong who had shot the deceased and claimed that he ran out onto the oval and wrestled with Phong to stop him from doing so but Phong threatened to shoot him, so he stopped protesting. Tran made up a myriad of surrounding details to give this lying account added verisimilitude. Tran admitted several times that he heard the summary of events given by the police of the information they had received from Lam and then changed his story. On his own admissions, Tran was a killer and a member of a gang who, amongst other things, bashed people up, stood over them and dealt in drugs. He also bought the gun used to commit the murder. It seems to me that Tran's evidence disclosed he was of such a character as to lead almost inevitably to the conclusion that he could not be believed on any matter in dispute unless it were supported by independent evidence. When the consideration is added that Tran had a powerful motive for implicating the appellant and ascribing to him the instigation and leadership of the crime and the substantial reward that he received for giving evidence to this effect against him, it was simply impossible to be confident of Tran's truthfulness in respect of any important matter in dispute. 20 Lam also gave evidence for the Crown. He was not charged. Since he was in the Honda when the victim was bundled into it and driven to the vicinity of the oval and when the victim was removed and taken to the place of his execution, he cannot be said to have been a disinterested witness. On the face of it, it is difficult to accept that the offenders wanted to have an independent witness present at an intended murder. Lam was a friend of the victim and, as well, knew Phong from school. The victim had, he said, picked him up on the way to Phong's house following Dang's invitation. He said that both he and the victim were forced into the Honda by Tran and Minh, the victim handing over the keys on Phong's demand. They then drove to the appellant's home. Phong suggested that Lam should be released but Tran demurred and he stayed in he car. The appellant then entered the Honda, getting into the front seat, which had remained - I think very likely, kept - vacant. Phong said, "We got a problem" and the appellant replied, "I can't avoid it, we have to do" (this being his translation of what I gather was said in Vietnamese). In the circumstances, having regard also to what ultimately happened, this evidence, if true, was significantly incriminating of the appellant. The victim plainly anticipated the worst as he commenced to cry and beg forgiveness of the appellant, who told him that a repayment already made was insufficient and he did not want to talk to him any longer. Phong asked directions and the appellant told him, "Just drive". Phong said, "We have to pull over to talk" but the appellant responded, "We have to do what we have to do". They drove on to the Endeavour Oval, where the appellant said, "Just do it here". Minh, Tran and the victim alighted. Lam heard someone tell the victim not to be scared or run, that they just wanted to talk and the three walked to the toilet block. Lam then heard three or four loud bangs - obviously the execution - and Minh and Tran ran back to the car and got in. They drove back to Phong's home where the appellant warned him not to use his mobile telephone because, "they are going to trap you". The appellant then drove Lam home and warned him to keep quiet with a threat against his family. 21 Despite the apparently threatening character of a number of statements that he alleged were made by the appellant, Lam said that he did not believe, right up to when he heard the gunshots, that the victim was going to be harmed. This was an astonishing statement unless, of course, nothing amounting to threats had in fact been made. Lam was eventually interviewed by police in September 2000, having denied any knowledge of he murder when first spoken to in 1996. A discussion took place for some hours before he agreed to make a statement. He said that, having evinced reluctance to co-operate, the police told him during the discussion what information they had including, in particular, that they "had a person who was telling them what happened that night". He denied that he thought he was in trouble when he was picked up by police "to go in for a talk" on this occasion. In light of the fact that he was in the car at the time of the murder this is very difficult to believe. When Lam spoke to police in 1996, he told them that he had seen the victim "sell heroin to a couple of Aussies" and that he was a drug dealer, selling drugs to anyone who wanted to buy them. At the trial, he said he had made this story up "because at the time I was being asked lots of questions and I just said whatever that came up". This explanation is incredible. 22 Leaving aside logical problems and those that naturally arise from realistic reservations from the evidence of the two principal Crown witnesses, there is also in this case the very real difficulty of evaluating demeanour in the cross-cultural context. Tran and Lam did not need to use an interpreter but their fluency in English was limited. In this situation, the verbal cues, the nuances of speech and phrase that persons with a common language rely on, almost instinctively, when assessing the true import of words used and the reliability of what is said are largely missing or, at least, unclear and, in all likelihood, ambiguous. Even with English speakers one must exercise great care in evaluating reliability by reference to the mode of verbal expression. In this case, such a task was even more fraught. Cultural differences can also affect other modes of communication: body language, facial expressions, gestures and the like. Taken together, I would not accept that the jury could sensibly use any assessment of demeanour for the purpose of giving them confidence in the reliability of the evidence of either Tran or Lam. 23 Accordingly, the case against the appellant was adversely affected by the patently dishonest character of Tran, his lies under affirmation and earlier and his interest in implicating the accused, and the appellant in particular, and excusing or minimising his own role in the murder. These problems were unalleviated by the presence of a sound basis for relying on his demeanour. Lam also had a motive for implicating the appellant and was also a self-confessed liar about significant matters. Again, his demeanour could not be regarded as a useful guide to his reliability as a witness. 24 The learned trial judge warned the jury to be cautious about Lam's evidence. Counsel sought a specific warning about Lam's evidence as unreliable within s165 of the Evidence Act 1995. Although it was conceded that there was relatively little controversy about a good deal of what Lam said, there were a number of matters which indicated some unreliability. The controversial matter of substance was his evidence to the effect that the appellant was in charge of what happened. His Honour's further directions were not the subject of submission and no complaint is made here about the issue. 25 It is of substantial importance to my mind that the appellant's case was not that he was not present in the motor vehicle. His case was that the jury could not be satisfied that his involvement was other than merely to attempt a settlement of the dispute involving the victim, as a mediator or, as counsel put it, an "honest broker". This case focused attention on the appellant's precise role and the undoubtedly valid - though somewhat unconvincing - point that his mere presence in the vehicle, even if it involved abduction, did not mean that the appellant was party to an arrangement to kill the victim, let alone had directed his murder. 26 Although Lam's evidence had to be approached with considerable caution, neither he nor his evidence was in the same category as Tran's and it seems to me that the jury would have been entitled to regard their evidence, taken together - with all the weakness to which I have briefly referred - as providing an adequate basis for convicting the appellant. But it also would have been unsurprising if the jury were left with a reasonable doubt. In short, in the absence of Phong's statement, the Crown case against the appellant - in marked contrast to that against Phong - was far from strong. 27 The appellant made an application before the trial commenced for a separate trial from Phong, relying upon statements contained in Phong's police interview that applied to him and, it was submitted, constituted such grave prejudice as could not be overcome by directions to the jury that they should not use any part of Phong's statements in considering the appellant's case. This application and another made during the trial were refused. It is submitted here that the learned trial judge erred in refusing to separate the appellant's trial which, in the event, miscarried for that reason. It is therefore necessary to consider the character and extent of the prejudicial statements made by Phong. These statements must be evaluated, of course, in the context that the jury were directed several times that they could not use what was said in the case against Phong unless they regarded it as reliable. 28 After Phong gave the interviewing police his personal history, he was questioned about directly relevant matters. He told police that the victim had been a friend of his and his brother (the appellant) for some years, that the appellant and the deceased lived together with others in a house after the former had run away from home, that they lived on money made from selling drugs but split up after they fought over this "business". Phong said that the appellant learnt this business from the deceased, that they were seen by the 5T gang as competitors, the appellant had attempted a negotiation but was attacked by a number of 5T gang members and so badly injured that he was hospitalised for two weeks. When the appellant left the hospital he returned home but continued to sell drugs to support his own use and also to provide an income. He continued in partnership with the victim, selling heroin. After some time (I take it, shortly before the night he was killed) the victim told the appellant that he wanted to stop dealing in drugs, to "go home and start a new life". Phong then said - A (108) "And my brother said, 'What about me. My wife she pregnant, can you just stay with me and help me?' And he say he want to go home to work. And my brother, my brother think about the money we owe the boss. 'Cause my brother is owing him and how the big boss respect him more than Thamh Ly [the victim]. But Thamh Ly Chi always use my brother name to get the drug from somebody else. And the drug my brother take from his boss is, belong to one of the 5T member family. And Thamh Ly Chi, he smart people, he smart boy. He takes the drug from somebody else, so he can give my brother name to do it. Like, like he do the delivery, the customer all know him, so he can give my brother name to do it. Like, like he do the delivery, the customer all know him, so he can get drug from the other people to sell it to the customer, but my brother didn't know that. And the, the money, the money he make he just keep for himself. My brother didn't know that too. Q So you're saying they were partners and Thamh Ly took customers away, … A Yeah. Q And started selling to those customers, … A Yeah. Q And not, leaving your brother out of it. A Yeah. But he, he used my brother's name to do it. 'Cause we, we doing job for what I see, what I have see, what I have heard. We say in Cabramatta, is, is if a T, if a 5T member heard you did it, they're gunna rob you, they're gunna kidnap you and rob you. And later on my brother say, 'What about part money, we have to pay for the boss'. He say he only got few, few money. He, he just pay him first and on him, pay it later when he go work. And my brother, O.K. And my, my brother get no money pay for the boss but it's not enough. And Thamh Ly Chi say to my brother, he won't do this way any more.

After several more questions, Phong said - "A (114) And one, one day my brother just rang me up and say to me, he find out something about Thamh Ly Chi. He told me that once he went to Cabramatta to look for customer to start up, 'cause his wife, is pregnant. He need money for his baby too. He went to see the old customer, ask them to score for him, off him, but customer say, 'I did, I just score off you'. He said, 'Who, Thamh Ly Chi. Is he your old partner?' Any my brother say, 'No'. But, but no, but no body said, didn't stay anything. He surprised. He was shock. Ane he said, 'Yeah, when you, when, when did you score off him?' He said, Just then, 'two hours ago, a few days ago, every day' and then - - - Q So you're, sorry to interrupt, you're saying that an old customer came to your brother Vu? A Yeah. Q And your brother Vu was trying to get new customers. A Yeah. New customer, he went to see the customer he used to score off him. Q And he saw the old customer, … A Yeah. Q - - - Thamh. A And he was shock. And he go home, he go, he went to see his boss, and he told, tell the boss about it. And the boss say, 'You better do something about it. This guy a traitor.' But just giving an option, I mean, I, that idea for us is bad luck, for them is right. Like you better do something to him for this guy he is a traitor, he is a dog. Just finish him. And how my brother that time, he don't know what to do, all right. How he, he ask himself why Thamh Ly Chi have to betray him like that? Why Thamh Ly Chi treat him like that? Took all the customer and the drug that he had to pay for, for the boss. And once he find out everything Thamh Ly Chi's lied to him and use his name and then many thing relate to Thamh Ly Chi as, as - - - Q119 Many things related. A As a traitor, as a, a, boy just want money and use, use, you, my brother's life to work for him. And once my brother ring him up, tell him to come to his house to talk just come to play. But that time he was scared, 'cause he knew that my brother is scared of the 5T member. And he came with a brother of a 5T member to my, my brother's house. He came in and my brother just, he can't control himself that day, he punched Thamh Ly Chi on the face, actually he slap on the face, that how he told me. And Thamh Ly Chi just lay down and cry and ask him for a chance to forgive. And my brother say, 'O.K. if you want me to forgive you just bring the money and drug to give me back so I can pay to the boss'. And suddenly after that he just went. When he left my brother very scared 'cause they know where he live and how the brother of the T member know also where he live to. For people like Thamh Ly Chi he young, plus lie and smart, endanger."

29 Phong elaborated to the officers on the serious risk that the LTH and 5T gangs posed and the need for the appellant to associate himself with a powerful protector. Phong then spoke of an ensuing attack on him which caused a serious head injury for which he and the appellant, in a way that is obscure, apparently held the victim partly responsible. Phong said that, for his safety and that of his brother, "we hope that Thamh Chi die so, you know, he don't tell people to get us" and went on to tell how Tran got his gun and "we [perhaps not including the appellant at this point] organise how to get him", meaning almost certainly, "to kill him". Phong claimed, in substance, that the arrival of Lam [called Fung] shocked them and they were uncertain whether to proceed with the killing. He was placed in he car and taken to the appellant's house. Phong then said - "…We can't decide. And we brought, Thamh Chi and Fung into my brother place in Bonnyrigg and, and my brother come inside and we asked Thuc [Tran], "What can we do. We can't let Tamh Chi go, go this time. If he go, if we let him go, this may something happen [to] us 'cause he too cruel and he too smart and he got money too. We can't do nothing about it. What can we do? And then we have to continue with our plan. So we don't know what to decide and Thuc want get Fung to die too, so, you know, we thought no people to know. But I thought - I was begging them, begging them. I said,' No, if you wanna kill them, kill me first. I can't kill him, you know. He's innocent. I tried to cover up for him." 30 It will be readily seen that the apparently sudden change of mind is, in substance, unexplained. The notion of innocence had not, it appears, occurred to Phong until the last moment. He went on to assert that Tran wanted to kill Lam as well because he would tell the police and then said, "But I can't kill Fung and I don't wanna kill Thamh either but we have to". Phong claimed that his uncertainty continued nevertheless. Why he got into the car with his brother and the others remained unexplained and, I think, inexplicable except as evincing participation in the murder. 31 The interview continued for some time but it is unnecessary to set out more for present purposes except to note that Phong maintained that his brother - the appellant - did not want the victim to be killed. 32 It is obvious from what has been set out above that Phong's account was dramatic and memorable and, so far as the relationship between him and his brother, their fear of the deceased, the circumstances in which this arose and the motive for an arrangement to kill the deceased up to the appearance of Lam on the scene were concerned, compelling. Not only did the transcription of the interview become an exhibit, but the jury watched the interview on video and needed carefully to analyse and evaluate what Phong said in connexion with the case against him. Moreover, Phong was not implicating a stranger or mere associate but his own brother. This situation was very different to the cut-throat defence by a co-offender. First, and most significantly, the statements that incriminated the appellant also incriminated Phong and the Crown placed considerable reliance on them to procure Phong's conviction. It was therefore inevitable that, in order to accept these parts of the interview, the jury had to conclude that they were reliable. It was necessary, therefore, that they should disregard that conclusion - which was very much in dispute - when they came to consider the appellant's case. In the cut-throat defence situation, the allegations against the co-accused need only to raise a reasonable doubt to justify acquittal and it is unnecessary - indeed, juries are so directed - to determine that the allegations are truthful. There is a very significant difference between an attempt to entirely disregard prejudicial material that might possibly be true on the one hand and, on the other hand, the attempt to entirely disregard material that has been carefully evaluated after extensive debate and relied on as true as against a co-offender. Secondly, it is obvious that a co-offender has a very strong motive to place responsibility on the other offender and thus a cut-throat defence will inevitably attract significant scepticism. In the present case, however, Phong had no motive for implicating his brother. Indeed, to the contrary. And the fact that he did so gave a considerable persuasive thrust to the Crown's submission to the jury that they would conclude that Phong's incriminating statements were truthful and reliable. In this context, the fact that the appellant was implicated in the offence by his brother gained additional significance. Furthermore, Phong's statement provided significant corroboration of Lam's claim that his presence at the scene was innocent. 33 The need for the jury to assess the reliability of the Phong incriminating statements in the case against him arose not only in the context of treating them as admissions but also as corroborating in significant respects the evidence of Tran and Lam in the case against Phong. Indeed, this is precisely what the Crown Prosecutor quite reasonably contended the jury should do. Obedience to the trial judge's direction to ignore what Phong said in the case against the appellant meant that the jury had to consider the truthfulness of Tan and Lam in the absence of that material and, if they had come to a favourable view of their reliability by using it in Phong's case (as was inevitable), to put that conclusion out of their minds. 34 For these reasons it would have been virtually impossible, as a matter of common sense, for the jury to disregard Phong's interview in dealing with the case against the appellant, despite the emphatic directions that Phong's alleged confession formed no part of the case against the appellant and should be disregarded so far as he was concerned. This was repeated or alluded to perhaps six or seven times during the summing up. Furthermore, his Honour identified with precision what evidence was (as distinct from was not) available in the appellant's case. Even so, it is not surprising, as it seems to me, that, something over two hours after they retired, the jury asked the following question - "Can you clarify the role of Phong Pham's interview. The Crown indicated to us in his closing that we could use it against Vu and Minh if it tied in with other evidence (ie to check for consistency with other evidence)." 35 The learned trial judge, following submissions, directed the jury in unambiguous and unmistakeable language that Phong's statement was relevant only to his case and was to be disregarded as to the others. The prosecutor claimed to have been misquoted, as indeed he had, in terms. But he had repeatedly pointed out to the jury, when dealing with the reliability of Tran and Lam, that much of their crucial evidence was supported by Pham's statements to the police. The jury's question, of course, is something of a two-edged sword. On the one hand, it suggests that at least one juror had not understood the clear directions that had already been given. Whether only one juror was uncertain cannot be known but, the question having arisen, the doubt was not, it seems, allayed by what other jurors said. This is not a matter upon which speculation is useful. The question should be approached on the basis that it was a significant one for the jury to have asked, despite the apparently unambiguous, simple and comprehensive directions dealing with precisely that matter. I do not find this surprising or unreasonable. It reflects the difference between a lay mind dealing with a body of evidence and the legal mind taught repeatedly to distinguish between direct and hearsay evidence and, (amongst other things) to appreciate the crucial importance of cross-examination and procedural fairness. It also reflects, in my view, the obviously powerful impact of Phong's statement on the jury. 36 The Crown submits, with some force, that the jury could not have been under any mistaken impression following the learned trial judge's categorical answer. Even so, to adopt the language of this Court in R v Fernando [1999] NSWCCA 66 at [216], the question remains whether, even despite his Honour's careful directions, the risk remained that the appellant was so unduly prejudiced by the reception of the interview in Phong's case, that he was denied a fair trial. That the interview was extremely prejudicial against the appellant is obvious. Is it reasonable to be confident that that prejudice was obviated by the directions or was there a significant risk that that it was not? 37 This question is not, of course, to be answered in the abstract but against the principle that, in general, alleged co-offenders should be tried together. In Webb and Hay v The Queen [1993] 181 CLR 41 (a cut-throat defence case) where Toohey J (with whom Mason CJ and McHugh J agreed) said, at 88-89 - "King CJ dealt with this ground [a refusal to order a separate trial] by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other' ((1992) 59 SASR 563 at 585). What King CJ referred to as 'strong reasons of principle and policy' were discussed by his Honour in Reg. v. Collie (1991) 56 SASR 302 at 307-311. I respectfully agree with that discussion which emphasises that when accused are charged with committing a crime jointly, prima facie there should be a joint trial. There are administrative factors pointing in that direction but, more importantly, consideration by the same jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others ( Reg. v. Demirok (1976) VR 244 at 254). There are of course dangers for an accused in a joint trial by reason of the admission of evidence which would not be admitted at the trial of one accused. That risk must be obviated by express and careful directions to the jury as to the use they may make of the evidence so far as it concerns each accused ( Reg. v. Harbach (1973) 6 SASR 427 at 433). In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice or, put in another way, whether improper prejudice has been created against an accused." 38 In R v Baartman (unreported, Court of Criminal Appeal 6 October 1994) this Court approved the following summary of the relevant principles enunciated by Hunt J in R v Middis (unreported, NSWSC 27 March 1991), an approval repeated by Fernando [1999] NSW CCA at [210] - "Briefly, the relevant principles are that: 1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and 2. Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and 3. Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial." 39 Two phrases in this summary need some explanation. In ordinary speech, "immeasurably" usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant "significant, though incommensurable". The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to "positive injustice". Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence. 40 I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant's case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender's case is material. Indeed, the opposite would seem to be the case since, if the co-accused's case was weak, or weaker than the applicant's, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case. 41 In this case the appellant sought a separate trial at the outset. In rejecting this application, the learned trial judge applied the observations of McHugh J in Gilbert v R (2000) 201 CLR 414 at 425 to the following effect (omitting citations) - "[31] The criminal trial on indictment proceeds on the assumption that jurors are true to their oath, that, in the quaint words of the ancient oath, they hearken to the evidence and that they obey the trial judge's directions. On that assumption, which I regard as fundamental to the criminal jury trial, the common law countries have staked a great deal. If it was rejected or disregarded, no one - accused, trial judge or member of the public - could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. If it was rejected or disregarded, the pursuit of justice through the jury system would be as much a charade as the show trial of any totalitarian state. Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials. It is of course true that, if a jury persists in returning a verdict that is contrary to law, the trial judge must accept it. But that only means in Lord Mansfield's words that, although '[i]t is the duty of the Judge ... to tell the jury how to do right...they have it in their power to do wrong'". 42 Gilbert is a case in which the jury convicted of murder where they had been directed, but wrongly, on the possible alternative verdict of manslaughter. Gleeson CJ and Gummow J (allowing the appeal) said at 201 CLR 419-420 - "[8] In the present case, following some apparent confusion in the addresses of counsel, the jury asked a specific question about the availability of a verdict of manslaughter, and were given what is now conceded to be an erroneous answer. They were directed to consider the factual arguments advanced as to the appellant's state of mind in a context which erroneously attributed to those arguments the consequence that, if accepted, they meant that the appellant was not guilty of unlawful homicide. Nevertheless, the respondent contends that it is impermissible to determine the consequence of the misdirection upon the basis that the jury's approach to the facts might have been affected by the legal consequences that were (wrongly) explained to them. It must be assumed, it is said, that the jury decided the facts dispassionately, and then applied, to the facts as found, the law as directed. That being so, the jury must be taken to have found, uninfluenced by any direction of law, that the appellant had the higher state of knowledge as to what his brother intended to do to the victim, and no occasion arose for them to consider the question of manslaughter. Therefore, the misdirection on the subject of manslaughter was immaterial, and there was no miscarriage of justice. The corollary of this argument is that the jury would have been acting contrary to their duty had they permitted their approach to the facts to have been influenced by the information they were given as to the verdicts that would follow from possible findings they might make. [9] The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice." 43 Callinan J agreed that the appeal should be allowed, stating in the course of his judgment (201 CLR at 440) - "[In Gammage v The Queen (1969) 122 CLR 444 at 440] Barwick CJ said [of the merciful verdict of manslaughter]: 'Out of the circumstance that, though not charged, manslaughter if made out may be found on an indictment of murder, there naturally arises the obligation to tell the jury if they ask, or if the accused requires it, that this alternative verdict is open to them if that is their view of the facts. Failure to so advise them will give rise to a justifiable complaint on the part of the prisoner. But, part of that advice should, in my opinion, be a clear statement of the occasion on which the jury might properly return a verdict of manslaughter.' The Chief Justice added…: 'They have no right, in my opinion, to return a verdict of manslaughter where they are satisfied of murder. But, as I have said, persistence by them in returning another verdict must ultimately result in the acceptance of that verdict. In that sense, but in no other sense, it is both within their power and, if you will, their privilege to return a wrong verdict.' This is to recognise the reality that a jury room might not be a place of undeviating intellectual and logical rigour. It is not to say that a jury should not perform their sworn duty to determine a case before them according to the evidence…" 44 His Honour commented (201 CLR at 441) - "[101] The appellant was entitled to a trial at which directions according to law were given. It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only inevitable choice." 45 In respect of the significance of Phong's interview in the context of the case against the appellant. His Honour said - "The nub of the application for a separate trial is a record of interview given by Phong Pham, who is Vu Pham's brother, on 20 July 2000. It is a very long and detailed interview. It runs to some 698 questions, most of which are questions of substance and not formal questions appropriate to such a record of interview. I have read that document and my present view of it is that it is, to say the least, questionable whether it would be admissible without some proper editing, even if the trial of Phong Pham himself. It is trite that the document cannot be admissible as evidence against Vu Pham in the separate consideration of his matter should that consideration have to take place in the context of a joint trial. It is of course necessary to understand quite clearly that the contents of Phong Pham's record of interview do not, as it were, stand alone as the substance of the Crown case which it is intended to present against Vu Pham. Were the contrary the case then indeed there would be a strong argument for a separate trial. There is, however, a body of evidence quite independent of the statement of Phong Pham being direct evidence from the men Lam and Tran, which evidence is not, as I at present understand it, inherently incredible and which is evidence that if accepted in its substance would certainly constitute without more a Crown case and a strong Crown case against Vu Pham. What is more it would constitute not merely a strong case, it would constitute a strong case of his, Vu Pham's implication in the most direct and precise sense I in the shooting to death of My Ly in July of 1996." 46 It will be seen that his Honour regarded it as significant that there was a strong Crown case "against the appellant". I find it somewhat difficult to understand, with respect, the passage that notes that "the contents of Phong Pham's record of interview do not…stand alone as the substance of the Crown case which it is intended to present against Vu Pham" (emphasis added), since it was not at all intended that the interview would be presented against him. I would have understood this to be a mere error of names, and that his Honour merely misstated the name, intending to refer to Phong, except that his Honour specifically makes the distinction in the next paragraph and repeats the "error". Since the issue before us is whether, in the result, the trial miscarried, it is unnecessary to attempt to resolve this issue. I would make the respectful observation, however, that - apart from the interview - the case against Phong depended upon evidence from two witnesses of whom one, Tran, was significantly compromised by his involvement in the crime and the substantial reward he procured both for suggesting that he was a mere instrument of the appellant and his brother and for giving evidence against them. The other, Lam, was compromised by his presence in the vehicle and obviously had a motive for implicating the accused. The case against the appellant was strong if these considerations and the inconsistencies exposed in cross-examination were ignored, that is to say, if the witnesses were believed. It seems to me unarguable that there were good reasons for disbelieving them, though (as I have in effect already stated) I would certainly not go so far as to say that they could not be believed. 47 So far as the risk that the jury might use Phong's interview against the appellant, the learned trial judge considered that an appropriately worded direction would suffice and, as I understand his Honour, would obviate the "real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material". His Honour left open the possibility of reconsidering the application as the trial continued but otherwise refused the application. 48 The application was renewed following the admission of Phong's interview on 3 June 2002 (the sixteenth day of the trial) but, as it happened, was not argued until 5 June. The learned trial judge again refused the application, although he accepted that Phong's interview "is, to say the least, highly damaging to Mr Vu Pham as an accused person in this trial", a view (as it is obvious) with which I respectfully agree. His Honour then said - "In a sense, I have said in the earlier ruling of 29 April the substance of what seems to me to be the answer properly available to that submission. I do not see why, as a general proposition, the Court should not proceed upon the basis that the jury is a reasonable jury; that it will understand the directions that will be given to it as to the imperative need to keep separate the three bodies of evidence respectively touching upon the three separate cases which are being tried together; and that the jury will give dutiful effect to these directions of law in considering the jury's own finding of fact in each of those three separate cases."

His Honour then considered Hunt J's first principle from Middis - "The problem with that submission, as it seems to me, is that the major premise upon which it is founded is unsound, because I do not accept that the material at present in hand and proper to be considered in connection with the case against Vu Pham is a weak case. I acknowledge, of course, that it depends essentially on the evidence of the witnesses, Tran and Lam; and I acknowledge what is no more than elementary commonsense in the context of this trial, namely, that both of them are problem witnesses from the Crown's point of view. But that does not seem to me to entail now that the case against Vu Pham is a weak case.…All I am saying is: it seems to me that the Crown case as at present structured against Vu Pham seems to me to be a substantial one, quite apart from the Phong Pham material." 49 His Honour's use of the word "substantial" is, with respect, correct as far as it goes (subject to the qualifications noted above). However, I would respectfully differ with his Honour if he intended to convey by this that the Crown case would not be very substantially strengthened by the addition of Phong's interviews, if they were placed in the scales against the appellant. Moreover, whilst "substantial", whether it proved to be strong - in the sense of convincing - very much depended on the extent to which the chief Crown witnesses were regarded as reliable. For the reasons set out above, this must have been an open question, to say the least. The Phong statements confirmed, from a source in a position to know and relevantly independent, Tran's evidence that the appellant had a motive to kill the deceased in the context of his involvement in drug dealing and gang warfare. Indeed, it was the appellant's motive that principally separated him from Lam, who was also present in the vehicle at the critical time. At all events, Lam's evidence did not corroborate this part of Tran's evidence. 50 At the same time, it must be borne in mind that the area of real dispute was somewhat limited, namely, the role that the appellant played in the vehicle as indicated by what he said. It is largely for this reason that I could reject - though with some disquiet - the contention that the verdict was unreasonable having regard to the evidence. However, I have come to the conclusion that it is very likely - if not certain - that the jury would have found it virtually impossible, in their consideration of the appellant's case, to disregard the prejudicial statements made by Phong that supported the evidence of Tran and Lam incriminating the appellant and disclosed his character, motive and involvement in the events surrounding the murder. 51 It follows that the trial miscarried. I propose that the appeal be allowed, the verdict quashed and a new trial ordered. **********

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