R v Tran [1999] NSWCCA 218

New South Wales Court of Criminal Appeal CITATION : R v Tran [1999] NSWCCA 218 FILE NUMBER(S) : CCA 60200/98 HEARING DATE(S) : 26 May 1999 JUDGMENT DATE : 26 May 1999

PARTIES : Ngoc Huy Tran JUDGMENT OF : Wood CJ at CL; Ireland J; Kirby J

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER : Woods DCJ

COUNSEL : Crown: C.K. Maxwell QC Appellant: P. Strickland SOLICITORS : CATCHWORDS : DECISION : Appeal allowed; convictions quashed, sentences set aside. New trial ordered.

IN THE COURT OF CRIMINAL APPEAL

No 060200/98

WOOD CJ AT CL IRELAND J KIRBY J

WEDNESDAY 26 MAY 1999

REGINA V NGOC HUY TRAN JUDGMENT

1 WOOD CJ AT CL: The appellant was indicted on 24 November 1997 before his Honour Judge Woods QC in the District Court at Sydney on five counts. The first was a count that on, or about 22nd October 1996, at Cabramatta and Lansvale, in the company of four other persons, he did rob Billianson Sou of certain property and that at the time of the robbery, he did inflict grievous bodily harm upon him. The remaining three counts on which he was convicted were offences of robbery in company, which were each alleged to have taken place at Warwick Farm. 2 The short facts in the Crown case were that about 7pm on 22nd October, Mr Billianson Sou left the St John's Bowling Club in a motor vehicle which was stopped at the intersection of Humphrey and Parramatta Roads by another vehicle. It was alleged that this vehicle contained six or seven persons including a female who was described as an Australian, and several persons who were said to have been male Vietnamese. 3 In the course of the altercation which followed the stopping of his vehicle, it was alleged that Mr Sou was struck on the forehead with a torch, and that his vehicle was entered by the offender, who drove it away. The vehicle was taken to a park in Lansvale where moneys were demanded from Mr Sou in exchange for his life. He was hit on a number of occasions and details of his former residential address were obtained from his licence. 4 A little later some of the persons involved in the alleged offence returned and threatened Mr Sou both with a piece of timber and a switch blade knife. He was allegedly struck with a piece of timber and also kicked in the mouth. He was then forced to accompany those persons to the home of his mother in law under threat of being shot. A pistol was shown to him. 5 At his mother in law's home, the persons who are said to have been his co offenders forced their way into the house and tied up the occupants. The premises were ransacked and it was said that, over in the course of two hours or so, property was taken from three persons. The theft of that property gave rise to the remaining three counts on which the appellant was convicted. 6 He was arrested on 13 November 1996 and found to be in possession of a watch which was identified by Mr Sou, as the one taken from him during the course of the robbery on 22nd October. 7 On the following day, a search warrant was executed at the residence of two of the other persons who were his alleged co offenders. In the course of that search a quantity of foreign currency was seized, including some old Cambodian currency. Fingerprint testing identified a fingerprint of the appellant on one of those notes. 8 At the trial the female, who had been in the motor vehicle confirmed that she had seen the appellant with the offenders at the Stardust Hotel, but said that she was not sure whether he had been in the vehicle at the time of the offence. 9 It may fairly be said that she retreated to a considerable degree from the statement which she had previously provided to the police, and in which she placed the offender in the group involved in the offences, at the time of their commission.. 10 The appellant gave sworn evidence in the course of which he acknowledged knowing the persons charged as his co offenders, but denied being involved in the offences. He said that he had bought the watch from a street vendor in John St Cabramatta for $30. He also said that he had been a regular visitor to the home of the person where the foreign currency was found. It was his evidence to the jury that he had picked up a number of notes which he had seen on a table and had placed the bundle back on the table. There were no admissions by the appellant and the Crown case was a circumstantial case. 11 It depended, in substance, on three matters. Firstly that the appellant was an associate of the co offenders and was present with them at the Stardust Hotel prior to the offences occurring. Secondly, that he was found to be wearing a watch stolen from the victim the subject of the first count. Thirdly, that his fingerprint was found on Cambodian bank notes which were said to be the proceeds of the robbery. 12 Had the matter been left to the jury with those facts as the relevant circumstances upon which the circumstantial case was sought to be established, then there would have been no problem with the manner in which the case was summed up or left to the jury. Indeed his Honour's directions concerning circumstantial proof were impeccable. However, a problem arose in that his Honour left to the jury, as a further circumstance in support of the prosecution case, a submission by the Crown that the accused had told lies concerning the watch and the fingerprints so as to disclose a consciousness of guilt. Upon that basis a further circumstance was introduced into the case in respect of which there was no independent proof. 13 By that I refer to the fact that there was no evidence called in the trial to establish independently of an assumption of guilt of the appellant, from the remaining circumstances, that he had in fact told a lie in relation to either matter. 14 The manner in which his Honour dealt with this aspect of the case appears in the following passages of the summing up: "One other matter I want to refer to is the submission made by the prosecution that the accused was telling untruths to you in his evidence. The Crown says that the accused lied to you when he told you the story about buying the watch on the streets of Cabramatta. Now it is for you to consider that issue. You could only use that against the accused if you believe that it was a lie. You could only use it against the accused if you believe that it was a lie about a material issue. You would not have any doubt about that, I imagine, because the watch is a very material issue in this case and you would only use it against the accused if you have formed the view that the reason for the lie was because the accused was trying to avoid telling the truth and he was trying to avoid telling the truth in order to protect himself against the revelation of his guilt. Sometimes people tell lies for reasons other than the fact that they are guilty. A typical example is sometimes given: a man might tell a lie about where he was because he was out with a girlfriend and he would rather be convicted of some driving offence or some stealing offence than have his wife realise that he was out with a girlfriend. Now, in the present case, even if you thought that the accused lied about the watch, you may think - it is entirely a matter for you - you may think, well, those who are involved in the exercise may have put their loot out on to the street already, may have been flogging off bits and pieces of jewellery and watches around the streets of Cabramatta and the accused might have bought it from somebody, or alternatively, he might have bought it from somebody without himself being involved in the crime. Now, you may think it is a possibility, and it is entirely a question for you, but you may think, well, a possibility of why he might lie about that would be because he just panicked. He is well known to be a close associate of these characters, feels himself in a bit of peril and he just panics and nobody can be convicted just for panic. The only basis upon which you would use a lie, anything that you consider to be a lie in his evidence, you could only use it against him if you think that the reason why he was lying was to conceal his guilt, not for some other legitimate or illegitimate reason and, of course, the Crown also put to you that he is lying about the money, flicking through the money on the table. You will recall his evidence about that, that the reason why the thumbprint is on the money, is not because he was one of the robbers on the night in question but because he just happened to go along there to a friend's house and he saw some money on the table and he flicked through it and that is how the thumbprint got there. I make the same direction to you, that you would only hold that against him if you thought, first of all, that it was a lie and when I say 'thought', I mean you are satisfied beyond reasonable doubt that it was a lie and that you thought it was material or important. Well perhaps you would not have much difficulty with that because the money is important and also that you were satisfied that the reason why he was lying about it was to avoid the revelation of his own guilt". 15 In the manner in which his Honour dealt with this aspect of the trial it appears to me that he fell into a problem of circularity. The only basis upon which the jury might have been satisfied that the appellant had told a lie, in respect of the watch or the money, was that it had concluded from the remaining circumstances that he in fact was guilty of the offence. Unless independently established any lie concerning the manner in which he came to be in position of the watch, or in which his fingerprints appeared on the bank notes, was incapable of adding to the remaining circumstances. 16 That was an impermissible approach. As a consequence, I am satisfied that there was a serious misdirection in the way that this aspect of the case was left to the jury. That it was regarded as a significant matter in the trial appears from a later passage in the summing up, when his Honour dealt with a further submission by the Crown that the appellant had given untruthful answers as to whether he knew, or did not know, the previous addresses of various of his friends. In dealing with that aspect his Honour said: "You cannot use that against him unless you think it is about a material issue. You may not think it is a particularly important issue - it is a matter for you - but you may think, compared to the question of the watch or the currency, whether he knew the previous addresses of his friends is not all that terribly important". 17 That passage seems to me to have only underlined the significance which the jury would have placed on the evidence of the appellant concerning the watch and the currency. 18 In those circumstances I am satisfied that there was a miscarriage of justice and that his Honour's summing up in relation to this aspect of the case fell into error such that this court should intervene. The case is not one, however, where otherwise I would be satisfied that the verdict was unsafe or unsatisfactory. After an independent examination of the evidence, I am not persuaded that the jury ought to have entertained a reasonable doubt as to the appellant's guilt. 19 I would propose that the appeal be allowed, that the convictions be quashed and the sentences set aside. I would order a new trial. 20 IRELAND J: I agree. 21 KIRBY J: I agree. 22 WOOD CJ AT CL; The order of the court will, accordingly be as I proposed. **********