REGINA v PHAM [2004] NSWCCA 190

New South Wales Court of Criminal Appeal

CITATION : REGINA v PHAM [2004] NSWCCA 190 HEARING DATE(S) : 17 May 2004 JUDGMENT DATE : 16 July 2004

JUDGMENT OF : Spigelman CJ at 1; Hulme J at 2; Adams J at 15 DECISION : Appeal allowed; verdict quashed; new trial ordered

CATCHWORDS : Joint trial - whether separate trials should have been ordered - whether miscarriage resulted - relevant principles - appeal allowed LEGISLATION CITED : Evidence Act 1995 s165 Gilbert v R (2000) 201 CLR 414 R v Baartman (unreported, Court of Criminal Appeal 6 October 1994) CASES CITED : R v Fernando [1999] NSWCCA 66 R v Middis (unreported, NSWSC 27 March 1991) Webb and Hay v The Queen [1993] 181 CLR 41 PARTIES : Regina (Respondent) Vu Ngoc Pham (Appellant) FILE NUMBER(S) : CCA 60009/04 COUNSEL : Mr P Bodor QC (Appellant) Mr D Frearson (Crown) SOLICITORS : M Donnelly (Appellant) S Kavanagh (Crown)

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70218/01 FILE NUMBER(S) : LOWER COURT Sully J JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60009/04

SPIGELMAN CJ HULME J ADAMS J

FRIDAY 16 JULY 2004 R v PHAM Judgment

1 SPIGELMAN CJ: Subject to the additional observations of Hulme J with which I agree, I agree with Adams J and the orders he proposes. 2 HULME J: In this matter I have had the advantage of reading the Reasons for Judgment of Adams J and it is accordingly unnecessary for me to recount in any detail the facts. 3 In short the issue for this Court which was raised by the first ground of appeal is whether, notwithstanding the trial judge exercised his discretion not to order that the trial of the Appellant be held separately from the trial of his brother and third suggested co-offender, this Court should hold that the Appellant's trial miscarried. 4 The basis for the contention that it did miscarry was this. The only substantial evidence against the Appellant was that of two witnesses both of whose credibility was the subject of substantial attack and at least one of whose credibility left a lot to be desired. It was submitted that in this situation it was wrong for a joint trial to be held where there was also evidence against the Appellant's brother in the form of a recorded interview which very substantially implicated its author and, had it been admissible against the Appellant, would also have being very incriminatory of the Appellant. 5 The Appellant submitted, and the Crown did not dispute, that the relevant principles governing the exercise of a trial judge's discretion when asked to grant a separate trial, are set out in R v Middis (unreported, Hunt J, 27 March 1991) and accepted by this Court in R v Baartman (unreported, CCA, 6 October 1994) and R v Georgiou [1999] NSWCCA 125. There was no discussion about these in either the written or oral submissions in the appeal. 6 Adams J has pointed out the difficulty there was likely to be for the jury, apparently persuaded of the reliability of the recorded interview when considering the case against the Appellant's brother, to put that interview out of their mind when considering the case against the Appellant. There is clearly a deal of weight in this argument although I do not need to reach a concluded view as to whether it should carry the day in this case. In all cases it is a situation where one needs to consider the significance of the various aspects of the evidence. 7 However in this case there is a further factor which to my mind compels the conclusion that the trial, so far as the Appellant is concerned, miscarried. During the Crown Prosecutor's address, very substantial attention was given to the extent to which the accounts given by the two witnesses to whom I have referred were supported by the statements in the Appellant's brother's recorded interview. In substance, it was submitted hat the jury could have confidence in the reliability of the evidence of those witnesses because it accorded with, and was supported by similar evidence in the interview. 8 Whether or not the jury could have put out of its mind when considering the case against the Appellant the recorded interview, inadmissible against him, there was no practicable way they could have assessed the credibility or reliability of the evidence of the two witnesses differently in the case against the Appellant than they had or would have done in the case against his brother. Thus in effect, the interview must have intruded into the case against the Appellant when it was not admissible against him. In reaching this conclusion, I do not disregard the judge's directions to the jury nor the commonly accepted view, which I share, that juries can and generally do, adhere to the directions they are given. But I do not believe that the jury could, in this case, separately form 2 assessments of the reliability of each of the Crown's principal witnesses, one assessment using the evidence of the interview and the other, by ignoring it. 9 In these circumstances the trial judge erred, at least after he had admitted the evidence of that interview, in rejecting the Appellant's application for a separate trial and, as against the Appellant, the joint trial miscarried. 10 The second ground of appeal was that "the jury verdict convicting the Appellant was unreasonable". 11 Adams J has pointed out that in the trial the area of dispute was very limited. There was no dispute that the Appellant had been picked up, carried in the car to the murder site and waited in it while the victim, the person who actually did the killing and a third person went for a short walk in a park during which time the victim was shot. The Appellant did not give evidence and the case advanced on his behalf, that he was but a mediator or "honest broker" was not inherently credible. 12 The Crown case was, as Adams J has said, supported by the evidence of Tran, the person who did the shooting and Lam, another person who remained in the car. Although their evidence was, as I have indicated, the subject of substantial attack, the question of whether it should be believed was primarily one for the jury. In its essential ingredients it was not inherently improbable and that of Lam particularly was not affected by such a degree of inconsistency that a jury was not entitled to rely on it. Nor, at least so far as one can judge from the printed page, was his credibility generally so damaged that the jury could not have believed him on the essential issues. It is not necessary to consider whether, had the evidence of either of these witnesses stood alone, the conviction could be maintained. 13 Nor do I find it necessary to reflect on the issue of the demeanour of these witnesses. This also was not the subject of debate in the appeal. 14 The second ground of appeal fails but the first succeeds. Accordingly, I agree with the orders proposed by Adams J.