Ta-Vuong v The Queen [2015] VSCA 238

Ta-Vuong v The Queen [2015] VSCA 238 - VSCA 2015 case summary — Zoe

[114]

Witness A said that when Mr Ta-Vuong arrived at the Custody Centre he saw other prisoners screaming and yelling at him and banging on his door and he said that he did not do the same thing but his cell mate did once or twice. He later conceded that he too abused Mr Ta-Vuong but to a lesser extent.

Witness A said the first time he spoke to Mr Ta-Vuong, Mr Ta-Vuong was in his cell and Witness A was in the exercise yard looking through the window into Mr Ta-Vuong's cell. He thought they first nodded at each other in recognition and then Witness A asked Mr Ta-Vuong what had happened, why he was there. Mr Ta-Vuong said he had been spending time with Kate [Leithhead], they had been using drugs together consistently. He told Witness A how much money they had been spending on drugs. Mr Ta-Vuong said that Kate was leaving the flat to score drugs at various times and that was frustrating him because she often took quite a long time to score. His suspicions were aroused as to why she was taking so long and he 'theorised' is the word Witness A used, I think, that she was either 'fucking the dealer or fucking around with the dealer'. He said this was frustrating him no end and he mentioned that she was ruining his life because of the influence she had on his life in terms of their drug addiction and how heavy her addiction was and that affected him being an addict as well. He blamed her for the relationship they had struck up at Odyssey House and he blamed her for having to leave Odyssey House.

According to Witness A, Mr Ta-Vuong said that 'due to his frustrations he started to horse around with Silas and engage him in rough play. He'd pick Silas up above or about head height and drop Silas on the floor from that height'. When Witness A said, 'What, just that one time?', Mr Ta-Vuong gesticulated a few times and said, 'No, up to five, three or four times, maybe even five'.

Witness A said Mr Ta-Vuong demonstrated by standing up and doing a sort of motion like a dropping motion. He demonstrated the motion. He said that Mr Ta-Vuong might even have picked up a blanket or something and thrown something on the ground to show him.

Witness A was asked whether he had a vivid memory of Mr Ta-Vuong throwing the blanket down and he said, 'Not vivid, if it was vivid I'd, you know, be a bit more sure but I do remember him throwing the blanket down'.

In fact, as you know, it was shown in cross-examination that Witness A could not see Mr Ta-Vuong's demonstration because he was on the other side of the yard looking into another cell when that was done.

In response to this evidence, Witness A agreed that he knew about the blanket being thrown on the ground because he and Witness B spoke about it later. He agreed he must have been told about the blanket going on to the ground by Witness B. However, he insisted that he remembered there being a confession 'most definitely and vividly'. He remembered certain words spoken 'most definitely and vividly'. Certain other things he was not too precise on and clearly he was wrong on other things. He said it seemed more likely, looking at the footage of the second conversation, that Mr Ta-Vuong may have been confessing at that point. However, they had had a few conversations over a few days and he was not exactly sure.

Witness A confirmed that Mr Ta-Vuong told him he was on drugs at the time the event occurred. He was fairly certain Mr Ta-Vuong had said he was 'iced off his brain' - 'ice' being a reference to methamphetamine.

Now, you have been told by Detective Hupfeld about the toxicology report on Mr Ta-Vuong which showed no evidence of methamphetamine in Mr TaVuong's system. You will also recall Kate saying that she did not use methamphetamine and, and this is a comment by me, the offence that she took when she was asked whether she slept with her dealers. She said she did not and that Mr Ta-Vuong never accused her of doing so. She also said she did not have dealers, she only had one dealer.

As to Witness B, he confirmed that when Mr Ta-Vuong arrived there were people inside their cells and in the yard yelling abuse at him. Witness B was swearing at him as well from the yard. He went up to Mr Ta-Vuong's cell and he swore through the cell door. The following day, he says, he apologised to Mr Ta-Vuong for swearing at him and had another conversation with him while he was standing outside the door to Mr TaVuong's cell.

Now the conversation he recounts having had with Mr TaVuong was mediated through Witness A who asked the questions while he listened.

Witness B said that Mr Ta-Vuong was basically saying it was not all his fault and that the mother was at fault as well, she had gone out to score and was late. Mr Ta-Vuong said he believed Kate was having an affair with the person who was trafficking. He was getting very upset and very agitated while he was saying this. He was playing roughly with the child. According to Witness B he grabbed hold of a blanket, raised it above his head and threw it on the floor and said, 'That's what I did with the baby'. Witness B said he saw Mr Ta-Vuong with the blanket and he remembers Mr Ta-Vuong crying later. However, Witness B does not recall whether Mr Ta-Vuong used words to describe what he did when he threw the blanket on the floor.

Witness B said, 'Yes, he did say he was playing roughly with the child and then he fell and he demonstrated with his hands and he dropped the blanket'.

Now, of course, Witness B was asked about using the word 'fell' in relation to what Mr Ta-Vuong demonstrated or described to him. When asked, 'Who fell?', he said, 'He was playing, as in playing with the child roughly and then he fell. He was upset and that's why he told us. Sorry, sorry, no, not he fell down, I don't know what'.

In re-examination Witness B was asked who fell, he said, 'The baby, the baby fell because he threw it'.

[154]

It needs to be borne steadily in mind that the metaphors referred to in the last sentence of the extracted passage are no more than that. They were apt for the facts of the cases from which they were drawn, but it should not be thought that they add any gloss or additional requirement to the essential test spelled out by the High Court in M[17] (and the later cases in the High Court which apply it[18]) - whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Such metaphors - convenient for the cases in which they were used - should not be permitted to obscure (let alone displace) the fundamental test prescribed by M.

The two metaphors referred to by Maxwell P in Klamo are derived respectively from remarks of Doyle CJ in Shah and Mason P in Morabito. In Shah,[19] the Court of Criminal Appeal of South Australia, by a majority (Doyle CJ and Sulan J, Debelle J dissenting), set aside as unsafe and unsatisfactory convictions for wounding with intent to cause grievous bodily harm and assault. The convictions had arisen out of an attack in a suburban Adelaide street in the early hours by one group of men on another group. Identification was in issue. Evidence from a security video - if the time was correctly recorded on the video - showed that the appellant could not have been in the vicinity of where the attack took place at the time that it occurred. There was no evidence that the time recorded by the video was incorrect. Doyle CJ agreed with the reasons of Sulan J (who applied the test from M),[20] and added:[21]

The real obstacle to acceptance of the prosecution case is, as Sulan J says in his reasons, the evidence from the security cameras strongly suggesting that Mr Shah was still at the hotel when the attack was happening. I agree with Sulan J that there was no basis upon which the jury could have been satisfied that the attack occurred later than Sulan J puts it, or that the security cameras displayed incorrect times. It was not open to the jury to speculate that, for some unknown reason, the evidence about the time of the attack, or from the security cameras, was unreliable. There was simply no basis upon which the jury could put that evidence aside. This body of evidence is, on the material before the jury, a solid obstacle to reaching a conclusion beyond reasonable doubt, based upon the identification evidence and the other circumstantial evidence, that Mr Shah was a participant in the attack.

Morabito[22] was a case of dangerous driving causing death and grievous bodily harm. The prosecution case was that the appellant, driving a prime-mover with trailer, was inattentive to his driving and collided with other vehicles causing the death of three people and serious injuries to another. It was the appellant's case that shortly before the first relevant collision with the rear of a Toyota Hilux, something caused his windscreen to shatter or craze so that he could not see through it. The prosecution case principally was put on the basis that the appellant failed to keep a proper lookout. But it was also put in the alternative that if the jury found it was reasonably possible that the windscreen broke only a very short time before the impact with the rear of the Hilux, that still did not explain why on a clear day with clear visibility on a flat, straight stretch of the highway, while the appellant was sitting in an elevated position, the appellant failed to see what was happening in front of him. Accordingly, there was more than one path to conviction. The Court of Criminal Appeal of New South Wales (Mason P, Hidden and Rothman JJ) dismissed the appeal, it being contended that the verdicts were unsafe and unsatisfactory. After observing that the 'legal principles are not in dispute', and citing M,[23] Mason P said:[24]

My understanding of the principles relating to challenging a conviction on the ground that the jury's verdict was unreasonable is that the appellant must persuade the appellate court that it was not open to the jury acting reasonably to arrive at their verdict. If one path to a conviction is open and beyond successful attack by reference to this standard, then an appellant who cannot disentangle the jury's verdict is unable to sustain the burden of displacing that verdict. In any event, the jury was in my view equally entitled to conclude beyond reasonable doubt that even if the appellant was possibly to be believed on the matter of the shattered windscreen, dangerous driving causative of death and grievous bodily harm were still established. ...

The particular facts of Shah and Morabito give context to - and explain - the metaphors that were used. In Shah the security camera footage was the 'solid obstacle' to conviction; and in Morabito, because of the alternative ways in which the prosecution case was put, more than 'one path to a conviction [was] open'. In neither of those cases, however, did the court essay any additional requirement to, or qualification of, the test to be derived from M. It follows, in my view, that similar metaphors generally would be inapt to cases which turn on credibility. ...

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