New South Wales Supreme Court CITATION : Principal Registrar of Supreme Court of NSW v Tran [2006] NSWSC 1181 HEARING DATE(S) : 07/11/2006 JUDGMENT DATE : 8 November 2006 JUDGMENT OF : Buddin J DECISION : Objection overruled. CATCHWORDS : Contempt of court - admissibility of evidence - whether its tender constituted an abuse of process CASES CITED : R v Carroll (2002) 213 CLR 635 PARTIES : Principal Registrar of Supreme Court of New South Wales (Plaintiff) Thanh Vu Tran (Defendant) FILE NUMBER(S) : SC 2006/11446 COUNSEL : P Singleton (Plaintiff) M Ramage QC (Defendant) SOLICITORS : Crown Solicitor's Office (Plaintiff) Voros Lawyers (Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BUDDIN J WEDNESDAY 8 NOVEMBER 2006 2006/11446 – PRINCIPAL REGISTRAR OF SUPREME COURT OF NEW SOUTH WALES v THANH VU TRAN JUDGMENT – Objection to admissibility of evidence 1 HIS HONOUR: Objection is taken to evidence which the plaintiff seeks to lead from the defendant's ex-wife, Ms Nguyen. In order to put the objection in context it is necessary to briefly sketch some background to the present proceedings. The defendant is being prosecuted by the plaintiff for contempt arising from events which occurred during his trial at which the Crown alleged that he shot two men, killing one and wounding the other. The jury acquitted the defendant of both the murder and the attempted murder as well as an alternative charge. 2 The Crown case against the defendant depended almost entirely upon proof by it to the requisite standard that a confession by the defendant that he had shot the deceased should be accepted. The defendant maintained that he had acted in self-defence but the Crown invited the jury to reject that part of the confession. Subsequently the defendant retracted the confession. When he gave evidence before the jury he maintained that his confession had been false and that he had confessed because he was forced to do so by unnamed persons. He refused in cross-examination to answer questions as to the persons whom he claimed had threatened him. It was that refusal which led to the present charges. 3 The statement of the ex-wife was read to the jury at the defendant's trial for murder. She gave a version of events which the plaintiff contends is capable of supporting an inference that the defendant's confession was not induced by duress. The plaintiff seeks to rely upon that evidence in these proceedings to support an inference that if the original confession was not the product of duress then a conclusion that the refusal to answer questions was not the product of duress could be more readily reached. The defendant submits however that the endeavour by the plaintiff to tender the evidence constitutes an abuse of process because the only evidence which Ms Nguyen is able to give "cannot stand consistently with [the defendant's] acquittals". 4 The Crown case relied, as I have said, almost entirely upon the reliability of the confession and indeed on only part of the confession. There was no forensic evidence of any kind or any other evidence linking the defendant with the deceased. The murder weapon was never located. There was no identification of the defendant. The survivor of the attack did not select him at an identification parade. On the contrary there was evidence from two eyewitnesses who said that they believed they could identify someone else as being the shooter. 5 The critical issue at the trial was whether the Crown could prove that the defendant was the shooter. That in turn, as I have said, depended upon the requisite proof of the relevant parts of the confession. There were other issues before the jury for its consideration including whether or not the Crown could eliminate the reasonable possibility that the defendant was acting in self-defence. 6 The essential element to be established in the present proceedings is whether the defendant refused to answer questions. The defendant appears to concede that he did but seeks to rely upon the fact that he was under duress at the time. In short, he seeks to suggest that the pre-existing threats were still in existence when he gave evidence. 7 It is common ground that the relevant test to be applied was enunciated in R v Carroll (2002) 213 CLR 635. Gleeson CJ and Hayne J said that: The principle is stated in various ways. In Garrett v The Queen, Barwick CJ, with whose reasons Stephen, Mason and Jacobs JJ agreed, described it as being that "the acquittal may not be questioned or called in question by any evidence which, if accepted, would overturn or tend to overturn the verdict". … It was accepted in argument in this Court that although it was not expressly averred, it was necessarily implied in the perjury indictment that the respondent had killed the child. In the present case, there was manifest inconsistency between the charge of perjury and the acquittal of murder. (pars 37, 41-2) (emphasis added) 8 A little later their Honours referred to the need for "direct inconsistency" (par 47). 9 Their Honours also observed that: [f]inality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. (par 50) 10 The plaintiff accepts that it may not controvert the jury's verdicts. It submits however that: [t]he leading of evidence from Ms Nguyen does not involve a controverting of the acquittals that the defendant secured at the homicide trial. It was not a necessary part of the jury's verdicts that they found that duress had occurred (or, to put the matter more accurately but less simply, it was not a necessary part of the jury's verdicts that they had a reasonable doubt about whether or not the accused had confessed under duress). Ms Nguyen's evidence can stand consistently with the acquittals, as considered in the light of the trial judge's summation. 11 In other words there was no "manifest inconsistency" or "direct inconsistency" between the charge of contempt and the earlier verdicts. Nor could it be "necessarily implied" that the verdicts meant that the jury had concluded that it was reasonably possible that the defendant had falsely confessed because he was operating under duress. 12 It is quite impossible, as counsel for the defendant accepted, to determine upon what basis the jury returned its verdicts. It could have been upon the basis identified by counsel but there were other explanations which were equally open apart from the issue of self-defence. It is quite possible that the jury was simply unable to conclude to the requisite standard that the confession was reliable in the sense contended for by the Crown. In this context it is to be observed that the defendant was released by the police without charge after he had made his confession, although he had arrived at the police station without appointment for the express purpose of making it. He was not charged in relation to the matter for well over 2 years after he had made his confession. Not much seems to have changed in the intervening period of time. This state of affairs prompted counsel for the defendant to submit to the jury that the police had obviously not believed his client's confession and that accordingly, neither should they. That submission may well in the circumstances have had the desired effect. 13 Be that as it may, there are entirely plausible explanations for the jury verdicts which do not entail a conclusion that it had, as it were, determined the issue of duress. The very fact that other plausible explanations exist underscores the difficulty confronting the defendant. In my view the material upon which the defendant relies falls short of satisfying the tests identified in Carroll and accordingly I overrule the objection. ********** 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.