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." 17 Ms Barrett was a person who heard the "admission" being made. She gives the evidence, although not orally but by deposition under s 65, and accordingly s 82(a) is not applicable, and the whole of her evidence is admissible. 18 The object of s 82 both in its original and amended form is to prevent second-hand hearsay. That is not the issue here. The evidence of Ms Barrett is her evidence and it is first hand, and it is given by her, although it was as I say given by deposition and not orally. 19 The fifth objection relates to evidence which the Crown Prosecutor informs me will not now be led, so I move on to the sixth objection, which is the leading of evidence in chief from TVT and TDN as to matters affecting their credit only. 20 TVT and TDN are accomplice witnesses who have been given indemnities and/or undertakings. It is alleged that they were engaged at various times in the common purpose with the accused Ngo and others to kill John Newman and consequently a warning concerning their evidence will be necessary under s 165. It is conceded that the evidence in chief can include evidence of the giving of the indemnities and/or undertakings. 21 I am informed that when they first spoke to the authorities they disclosed some matters of which they now seek to give evidence, but not others. The Crown wishes to lead in chief, evidence from them when they first went to the authorities, and why they did so, and also the reasons for them not disclosing all material information at that stage. The evidence is objected to on the grounds that it is forbidden by s 102 of the Act, the credibility rule. That section at the beginning of Part 3.7 is as follows: "Evidence that is relevant only to a witness's credibility is not admissible." There follows a number of exceptions including cross-examination as to credibility (s 103) and re-establishing credibility (s 108). 22 It has often been considered good advocacy for counsel who has a problem witness to confront the problem head-on as early as possible, and if there are going to be questions raised about previous inconsistent statements, to lead evidence as to the reasons or excuses for such inconsistent statements during the evidence in chief, rather than wait for an attack to be made on the witness in cross-examination. However, it would appear that such evidence, strictly speaking, would not be admissible in evidence in chief at common law, and that the position would appear to be reinforced by the provisions of the Act. 23 Credibility of a witness is defined in the Dictionary as meaning, "the credibility of any part or all of the evidence of a witness..." Although in my experience such evidence has in the past not infrequently been led in these circumstances, the words of the section appear to be clear, and this view is confirmed by the learned authors of Cross on Evidence, Australian edition at para [19005] who state: "The Cth Evidence Act 1995 and NSW Evidence Act 1995 provide that evidence that is relevant only to a witness's credibility is not admissible: s 102. There are exceptions for cross-examination (ss 103-104), for rebuttal of certain denials by a witness (106) and for evidence re-establishing credibility (s 108), but there are no exceptions in relation to evidence in chief, save s110(1) permits an accused person who is testifying to give evidence of good character." 24 The evidence to which objection is taken falls squarely within the definition and therefore cannot be led except pursuant to the exceptions referred to. Mr Nicholson SC referred to the need for leave under s 108(3) to lead such evidence, even in re-examination; but s 108(1) is in my view quite separate from s 108(3) and if the credit of a witness is attacked, evidence from that witness relating to his credit is admissible in re-examination under s 108(1) without leave. 25 The Crown referred me to the judgment of McHugh J in Palmer v The Queen (1998) 151 ALR 616, but that case is distinguishable for two main reasons: firstly, the case was not concerned with leading evidence relating to credibility as evidence in chief but with the cross-examination of an accused as to whether a complainant in the sexual assault case had a motive to lie or fabricate allegations, and secondly, the discussion by his Honour concerning the distinction between evidence relating to facts in issue and evidence only going to credibility was concerned mainly with the finality rule by which other evidence cannot be led to contradict evidence going only to issues of credit, and was concerned with the difficulty in defining the boundary between the two. In any event, his Honour dissented on the relevant issues in the case, and his comments are only dicta. 26 I am therefore satisfied that the two witnesses can give evidence in chief that they were charged and at a later stage went to the authorities and were later given indemnities or undertakings but their reasons or motives for going to the police and their previous inconsistent or incomplete statements cannot, or their reasons for such discrepancies cannot, be led as part of their evidence in chief but only in re-examination, provided the anticipated attack on their credit is made. 27 The learned Crown Prosecutor therefore then submits that he would seek to refer to these matters in his opening address. Mr Nicholson SC, supported by Mr Cusack SC for the accused Dao, objects and submits that they are not proper matters for an opening and will take away the "thunder" of the defence attack. I can see no valid objection to the course proposed by the Crown. The object of the opening is to outline the Crown case to the jury so that they will understand the Crown case as individual witnesses are called. 28 It is clearly proper for the Crown to tell the jury that they are alleged accomplices, that the jury will be warned that their evidence may be unreliable and the reasons why it may be unreliable in that context. I cannot see any reason why the Crown cannot say that their credibility will be attacked and that one of the anticipated grounds of the attack will be that initially they only told the authorities part of their current evidence, but that they will give reasons for that and for later going further and what those reasons were. 29 Evidence intended to be led by the Crown in re-examination (to rebut a telegraphed attack on the credibility of an intended witness) is just as much evidence to be led by the Crown as evidence intended to be led from the witnesses in chief. There is no principle of which I am aware, and I have not been referred to any authority, to the effect that the defence is entitled to the tactical advantage or "thunder" of first raising the issue of credibility of a witness. The issue of their credibility will be raised by the need for a warning concerning their evidence under s 165, and the evidence will all be before the jury at some stage. However I am also satisfied that the Crown should deal with these matters only in general terms and not proceed too far into the specifics of the differences in the various statements, but merely that there were differences, and it is anticipated that they will give explanations for such discrepancies in due course. 30 The seventh objection relates to the Crown allegedly making continual requests for the non-publication orders in the presence of the jury. The matter has been resolved and the Crown has indicated that he will make such applications in the absence of the jury. 31 The eighth objection is to the Crown making any reference in its opening or in evidence in chief to Lucy Wang which seems to seeks to impute her credit insofar as her initial observations of the motor vehicle used by the gunman to escape the scene. 32 I am informed that Lucy Wang will give evidence that the deceased's assailant got into the front seat of a dark green car. TVT says that he was a passenger in the vehicle and that the assailant, whom he identifies as the accused Dinh, got into the near side rear seat. The objection apparently is to Ms Wang saying that she thought he got into the front seat, when her evidence will be that he got into the front passenger seat. Apparently the front near side door of Dao's car did not work, and so he could not have got into the front passenger seat, if it was Dao's car, as alleged. 33 The other objection is to the Crown proffering a suggestion as to why she might have got it wrong, such as shock, et cetera. 34 I must say this all seems rather trivial and nitpicking to me but defence counsel assure me that it is of "crucial importance". The Crown has indicated that he will not open to the jury that she "thought" that the assailant got into the front seat, and will not proffer a comment as to how she may have been affected by shock, although of course he reserves the right in his closing address to make any comments properly available to him in the light of the evidence at that stage. 35 The ninth objection is to the Crown relying on any evidence from TDN or TVT of any activities or conversation which is not in furtherance of the alleged joint enterprise between them and Phuong Canh Ngo. As a general proposition this objection is clearly valid, but the objection is taken to specific pieces of the evidence which is claimed do not come within the furtherance of the alleged joint enterprise. 36 The first piece of evidence objected to is summarised at p 51 of the transcript of this hearing and relates to evidence from the witness TDN of a nocturnal visit to his premises, so it is said, by the accused Ngo, who takes TDN from his bed and drives him to the vicinity of the Mekong Club where TDN is requested to remain in the car whilst Ngo speaks to Dinh and TVT some distance away from the car, they both being employees of the Mekong Club. At the conclusion of that conversation Ngo returns to the car and returns the witness TDN to his home. 37 This is evidence of association between some of those allegedly involved in the common purpose, and it is also evidence that TDN was prepared to do Ngo's bidding, to get out of bed and to sit in a car and then go home, all as directed by Ngo and for no apparent purpose. 38 It was submitted that there may be an innocent explanation for it all and that may be so; but prima facie it is unusual conduct on the part of both Ngo and TDN. There is no evidence that Dinh was involved in the common purpose at that stage. I am satisfied that the evidence is admissible against Ngo and Dao, and Dinh is entitled to have the jury warned that there is no evidence of his involvement in any common purpose at that stage. 39 The next objection relates to evidence from TVT and TDN of a conversation, or possibly two conversations between them, when each of them says to the other words to the effect that Ngo had asked him to kill John Newman (or to kill someone). Mr Nicholson SC concedes that each of them may give evidence of the conversation in which Ngo made the request to the witness, but submits that they cannot give evidence that they told each other of the request. 40 This meeting, or these meetings, were when they discussed getting a gun, and he rightly concedes that that part of the conversation is in alleged furtherance of the common purpose but he submits that this reference to Ngo's request is not, and cannot be, in furtherance of the common purpose, but is merely narrative of what has already occurred. 41 TDN's version of the conversation is set out in the current transcript at p 61. 42 True it is neither of them expressly says that the reason he wants to get a gun is because Ngo has asked him to kill someone, but in the context of the conversation the implication is at least open, if not irresistible, that the reason that he wanted a gun was to help Ngo kill John Newman; and other evidence shows that the gun or guns, when purchased, were passed on to Ngo, and the Crown claims that one of the guns purchased by these two accomplices, or either of them (it does not matter for present purposes) was in fact the murder weapon. 43 Both the witnesses were working for Ngo, both were involved in the common purpose with him, but this is the first time, as I understand the Crown case, that they came together to join in the common purpose with each other, the reference to Ngo's request was part of the process of them sounding each other out, and the passage objected to identifies the common purpose in which they joined with each other, namely to help Ngo kill John Newman. 44 People do not seek to buy guns for no reason and this conversation in its context identifies the reason why they wanted to buy the guns. Stripped to its bare essentials the conversation amounts to this, A says B wants me to help him kill X. A says do you know where I can get a gun? Obviously in this context he wants a gun to help B kill X. 45 TVT's version is somewhat different. It is set out in the transcript at p 64, and puts that part of the conversation objected to after they had got the gun, that is the gun they have got at Ngo's instigation, but then they discussed the ultimate object of the common purpose, namely to help Ngo kill John Newman. That discussion as to the object of the common purpose would in my view be in furtherance of such common purpose and identifies the common purpose. I will admit both versions of the conversation. 46 The tenth and eleventh objections relate to portions of the ERISPs of the accused Ngo and the giving of evidence by video link. It is agreed that both of these matters may be resolved without the necessity for me giving a ruling thereon, and they can in any event be deferred for the time being. 47 In addition, Mr Hoenig, counsel for the accused David Dinh, seeks a ruling in advance that certain evidence identified in the schedule to his written submissions is not admissible against his client. That evidence may be described in general terms as evidence of declarations and acts of the others said and done prior to 5 September 1994 in furtherance of what the Crown alleges was common purpose to kill John Newman at the instigation of Phuong Ngo. Mr Hoenig submits that as his client is charged as a principal in the first degree, as the actual shooter, rules relating to criminal complicity such as common purpose and the associated evidentiary rules under which the acts and declarations of each of the participants in furtherance of the common purpose are admissible against each of them are not relevant. 48 These issues have already been canvassed before me in an application to set aside an order for a separate trial. R v Ngo, Dao, Dinh [2000] NSWSC 964, and in the Court of Criminal Appeal on appeal from that decision [2000] NSWCCA 536. The Court noted they were only interlocutory judgments, as is the present one. 49 As I said at para [40] in my earlier judgment, "It follows that the acts and declarations of the other alleged participants in the common purpose are admissible to prove the nature of the enterprise, not the accused Dinh's participation in it", and I referred to a number of cases. 50 This statement of principle was upheld by the majority of the Court of Criminal Appeal at para [52], and it was also said at para [49]: "The fact that a person enters into a joint criminal enterprise at a time after the enterprise has already commenced does not mean that the joint enterprise changes its nature or that a new joint enterprise commences merely by reason of the involvement of the new person in that enterprise. Nor is evidence of what occurred during the course of the enterprise before the person entered into it necessarily inadmissible against the person lately joining the enterprise." and their Honours referred to R v Bilick and Stark (1984) 11 A Crim R 452 at 462. The Court of Criminal Appeal also pointed out at para [54] that the admissibility of the evidence does not depend on the part played by the particular accused in the joint enterprise, for example, as principal in the first or second degree or accessory etc. 51 Although the Crown case against the accused Dinh depends on the jury being satisfied beyond reasonable doubt that he actually fired the fatal shots, the fact that the Crown has no evidence that he joined the enterprise prior to 4 September 1994 does not render the previous acts and declarations of the other participants in the common purpose inadmissible against him; although as both the Court of Criminal Appeal and myself have emphasised it is only admissible to show the nature of the common purpose and not admissible to show the participation in it of the accused Dinh. This latter element must be proved by other evidence. 52 The evidence is admissible on this basis but the accused Dinh is entitled to a clear direction to the jury of this limitation on the use of such evidence. 53 Moreover, a lot of evidence proposed to be led of events prior to 5 September 1994 is also admissible against Dinh on another basis, namely to show the surrounding circumstances in which it is alleged he was recruited by Ngo to carry out the killing. 54 Evidence of surrounding circumstances is generally relevant to show why parties may have acted as they did, to put the facts in their context and to enable a proper understanding of the evidence e.g. Wilson v The Queen (1970) 123 CLR 334; Harriman v The Queen (1989) 167 CLR 590 at 630; R v Dinh in the Court of Criminal Appeal at para [56]. 55 Such evidence is often relevant in cases of sexual assaults, as evidence of events taken in isolation may seem incredible, but understood in the context of the surrounding circumstances and other events, they take on a very different quality: R v Beserick (1993) 30 NSWLR 510 at 515, R v AH (1997) 42 NSWLR 702 at 708. 56 Just as shootings do not occur in a vacuum, recruitment of shooters does not occur in a vacuum. As the Crown case is that Dinh acted at the request of Ngo it is correctly conceded that evidence that Ngo had a motive to have John Newman killed is relevant and admissible. 57 In my opinion evidence tending to show that Ngo had expressed a desire to have him killed, that he had requested TDN to shoot him and that he had asked TVT to find him a shooter, that he had arranged the purchase of guns for the purpose and had possession of at least one of the guns, that he had instigated three previous unsuccessful attempts on Newman's life, that he was seen driving in the streets near Newman's house two nights before the killing, and that persons previously recruited to carry out the killing had either withdrawn or proved incompetent is all relevant to show the circumstances in which Dinh was allegedly recruited. 58 Ngo had (according to the Crown) the motive, the guns, the address, the car, and everything except the shooter. Those facts rendered it more likely that he would, on 5 September 1994 try to obtain a shooter, and therefore more likely that a shooter would be recruited. Without those facts the jury might wonder why he would recruit a shooter at the last minute and therefore consider it less likely that Dinh or anyone else would be recruited. The evidence is such that if accepted it could rationally affect the probability of the existence of a fact in issue, namely the recruitment of Dinh into the enterprise. It is therefore relevant (s 55) and admissible (s 56). 59 For these reasons I am satisfied that most, if not all of such evidence is admissible to show the circumstances that existed at the time the Crown alleges Dinh was recruited by Ngo to shoot Newman. It is also admissible to show the nature of the enterprise which Dinh allegedly joined, but not to show that he did join it or participate in it. There may be some pieces of the evidence in the schedule which go to neither of these issues, and I would be prepared to consider them separately when the time came. 60 Subject to that I will admit the evidence indicated against the accused Dinh. 61 HIS HONOUR: The other point was the character evidence and Mr Cusack I understand you to be happy to defer that for the time being? CUSACK: Yes your Honour. oOo Last Modified: 07/23/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.