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."