R v Ngo; Dinh; Dao [2001] NSWSC 595

Reported Decision : 122 A Crim R 467

New South Wales Supreme Court

CITATION : R v Ngo; Dinh; Dao [2001] NSWSC 595 CURRENT JURISDICTION: Common Law Division Criminal FILE NUMBER(S) : SC 70086/98; 70059/99; 70223/98 HEARING DATE(S) : 5 - 8 March 2001 JUDGMENT DATE : 8 March 2001

Regina PARTIES : Phuong Canh Ngo (Accused) David Duy Thai Dinh (Accused) Tu Quang Dao (Accused) JUDGMENT OF : Dunford J

Mr M.A.G. Tedeschi QC - Crown COUNSEL : Mr J.C. Nicholson SC / Mr P.J. Pearsall - Ngo Mr R. Hoenig - Dinh Mr G.J.T. Cusack QC / Ms B.J. Rigg - Dao S.E. O'Connor - Crown SOLICITORS : L.M.G. Solicitors & Attorneys - Ngo Legal Aid Commission of NSW - Dinh Jackson Smith, Solicitors - Dao CATCHWORDS : CRIMINAL LAW & PROCEDURE - voir dire - admissibility of evidence LEGISLATION CITED : Evidence Act 1995, ss 55, 56, 65, 81, 82, 102, 108, 135, 137, 165. Shepherd v The Queen (1991) 170 CLR 573 R v Esposito (1998) 45 NSWLR 442 R v Horton (1998) 45 NSWLR 426 Palmer v The Queen (1998) 151 ALR 616 CASES CITED : R v Bilick and Stark (1984) 11 A Crim R 452 Wilson v The Queen (1970) 123 CLR 334 Harriman v The Queen (1989) 167 CLR 590 R v Beserick (1993) 30 NSWLR 510 R v AH (1997) 42 NSWLR 702 DECISION : Rulings given

THE SUPREME COURT Revised for Internet OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL DUNFORD J Thursday, 8 MARCH 2001 70086/98 - R v Phuong Canh NGO 70059/99 - R v David Duy Thai DINH 70223/98 - R v Tu Quang DAO JUDGMENT 1 HIS HONOUR: Following arraignment, but before the empanelling of the jury, a number of matters have been canvassed relating to the admissibility of evidence. I will deal first with the objections to evidence on behalf of the accused Phuong Canh Ngo set out in Ex. X1 on the voir dire. The first objection is to the ballistics evidence of Messrs Roach and Pfoser on the basis that its probative value is outweighed by the prejudicial value. 2 The Crown alleges that the murder weapon was a 1935 .32 calibre Beretta pistol recovered from under water at Voyager Point nearly four years later on 10 June 1998 in a rusted condition. Because of such rusted condition no ballistics expert can express a firm opinion as to whether or not the firing pin matched the markings on the spent cartridge cases found at the scene of the killing. 3 The objection is taken that, in the absence of firm proof that it is the weapon, the evidence is such that its probative value is outweighed by the danger of unfair prejudice within the terms of s 137 of the Evidence Act 1995 ("the Act") and it is also objected to on the ground that the evidence of a technical witness, Mr Pfoser, whose methodology will be challenged in a highly technical manner, may be given greater weight than it deserves by the jury because he will be coming all the way from Germany to give his evidence. 4 The Crown case in relation to the identity of the weapon is circumstantial. There is evidence that the murder weapon was a .32 calibre pistol and one of the alleged co-offenders, TVT, who will give evidence for the Crown, says that the accused David Dinh had such a weapon in the car on the night of the killing, and there is some evidence that after the shooting it was handed by Dinh to Ngo at a service station. Sergeant Roach is expected to give evidence that the markings on the firing pin found on the rusted pistol recovered at Voyager Point is consistent with the markings on the casings found at the scene. Mr Pfoser says that it was "more probably than not" the same firing pin used. There is also evidence of the use of a mobile phone in the possession of the accused Ngo at the relevant time indicating that he was travelling in the direction of Voyager Point. There is evidence of how rare this particular model of gun was generally, and in Australia in particular, and the very unusual pin impression of that model. In addition persons who had handled the gun, such as the witnesses TDN and TVT say, as I understand it, that it was similar to the gun used in earlier attempts on the life of John Newman. 5 In my opinion, based on all these matters, taken together, it would be open to the jury to conclude that the weapon used in the shooting was the weapon recovered at Voyager Point. Circumstantial cases do not depend on each individual circumstance, but on the totality of circumstances taken together and each circumstance does not have to be proved beyond reasonable doubt: Shepherd v The Queen (1991) 170 CLR 573 at 580. Indeed, the fact that this was the murder weapon is itself merely one of the circumstances, and so does not have to be proved beyond reasonable doubt. 6 The fact that one of the experts has travelled from Germany is irrelevant. The jury will have to judge his evidence on its cogency, the data on which it is based, his methodology and its relationship to the other evidence. There is no basis for suggesting that they may give added weight to his opinion because the expert witness comes from overseas. 7 Likewise the fact that the defence intends to challenge the witness' methodology on technical grounds is no reason to exclude evidence under ss 137 or 135. It will be the responsibility of counsel to put the questions including the technical ones to the expert witnesses in a form which the jury can understand, and I would expect the State's Senior Crown Prosecutor and its Senior Public Defender would be able to do this. The probative value of the evidence, if accepted, is very high and I cannot see any unfair prejudice to the accused. I will admit the evidence. 8 The second matter to which objection is taken is the evidence of PD. There are a number of problems about this evidence and I note that following lengthy argument and submissions, the Crown will not open her evidence and it has been agreed that I should defer ruling on this point. 9 The third objection is to the evidence of the reading of the evidence of a witness. In this respect the Crown Prosecutor informs me that he does not now see the need to read the evidence of CC in this trial. CC cannot presently be located and if located the Crown will lead his evidence viva voce and not seek to read it. 10 The fourth objection is to the reading of the evidence of Shirley Barrett given in the second trial of the accused Ngo and Dao. Ms Barrett is now deceased. Her evidence relates to calls from the mobile telephone allegedly in the possession of Ngo on the night of the murder, shortly after the murder, and relates to the alleged disposal by Ngo at Voyager Point of the alleged murder weapon. It is said by the Crown to be relevant for two purposes. She can identify the caller as the accused Ngo, as the result of which, in conjunction with evidence from Telstra regarding the operation of mobile telephone towers, his route and location at that time can be identified, and the Crown claims it can be established that he was travelling in the direction of Voyager Point. 11 Moreover, in the second of these conversations the accused Ngo says that he was then on his way home. The Crown intends to prove that he was not on his way home at the time but travelling towards Voyager Point, and seeks to rely on this evidence as a lie showing a consciousness of guilt. 12 In my view the evidence is admissible under s 65(3) of the Act and this is conceded by Mr Nicholson SC on behalf of the accused Ngo in relation to the first point, namely, the identification of the caller as the accused Ngo, but he objects to evidence of the content of the second conversation which the Crown seeks to rely on as a lie. 13 Before moving on to that point the evidence proposed to be read is the evidence in what has been referred to as the second trial of the accused Ngo and Dao. The accused Dinh was not an accused in that trial. Consequently his counsel did not have the opportunity to cross-examine, but Mr Hoenig informs me that he does not oppose admission of the evidence against his client if it is otherwise admitted. 14 Mr Nicholson's objection to the content of the second conversation said by the Crown to constitute the telling of a lie by the accused Ngo is based on the provisions of s 82(1) of the Act. He submits that evidence of a lie comes within the definition of an "admission" as defined in the Dictionary to the Act, being a previous representation adverse to the person's interest in the outcome of proceedings. This point must be conceded. It is established by the decision of the Court of Criminal Appeal in R v Esposito (1998) 45 NSWLR 442, following R v Horton (1998) 45 NSWLR 426. 15 But he submits that if the evidence is admitted pursuant to s 65 it is not evidence given orally by a person who heard the admission being made. He concedes that if Ms Barrett were still alive and present she could give the evidence, but because she is deceased and her evidence will be adduced by the reading of the deposition under s 65 it is not evidence given orally by her and accordingly, and in light of s 82, it is not admissible. 16 That result, absurd as it may seem, may have been the consequence of the Act in its original form when s 82 provided that s 81 did not prevent the application of the hearsay rule to evidence of an admission unless it was given orally by a person who saw, heard or otherwise perceived the admission being made. But the section was amended by Act No. 53 of 2000, the Statute Law (Miscellaneous Provisions) Act, Schedule 1 paragraph 11, which omitted the word "orally" from s 82(a) so that section now reads: "Section 81 does not prevent the application of the hearsay rule to evidence of an admission unless it is given by a person who saw, heard or otherwise perceived the admission being made."