New South Wales Court of Criminal Appeal CITATION: R v Nguyen, John Viet; R v Nguyen, Anthony Si [2010] NSWCCA 97 HEARING DATE(S): 7 May 2010 JUDGMENT DATE: 7 May 2010 JUDGMENT OF: Hodgson JA at [1], [33]; Johnson J at [24]; Latham J at [30] EX TEMPORE JUDGMENT DATE: 7 May 2010 DECISION: 1. Appeal be allowed. 2. The rulings of the trial judge referred to in the notice of appeal in this case be set aside. CATCHWORDS: CRIMINAL LAW – Crown appeal against rejection of evidence – Whether cumulative effect of errors was to eliminate or substantially weaken the prosecution's case. Criminal Appeal Act 1912 (NSW) s 5(3A) LEGISLATION CITED: Criminal Procedure Act 1986 s 145, s149E Evidence Act 1995 s 50, s165 CATEGORY: Procedural and other rulings CASES CITED : Chai (1992) 27 NSWLR 153 Masters (1992) 26 NSWLR 450 CROWN (appellant) PARTIES: John Viet NGUYEN (first respondent) Anthony Si NGUYEN (second respondent) FILE NUMBER(S): CCA 2009/10935006; 2009/10940006 W ABRAHAM QC/ L CROWLEY (Crown) COUNSEL: A RADOJEV (first respondent) P STITZ (second respondent) Commonwealth Director of Public Prosecutions (Crown) SOLICITORS: Jack Rigg Lawyers (first respondent) Australian Criminal Law specialists (second respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2009/00010935; 2009/00010940 LOWER COURT JUDICIAL OFFICER: Sweeney DCJ LOWER COURT DATE OF DECISION: 7 April 2010, 12 April 2010, 5 May 2010 IN THE COURT OF CRIMINAL APPEAL 2009/10935006 2009/10940006 HODGSON JA JOHNSON J LATHAM J Friday 7 MAY 2010 R v NGUYEN, John Viet R v NGUYEN, Anthony Si Judgment 1 HODGSON JA: This is a Crown appeal pursuant to s 5F(3A) of the Criminal Appeal Act 1912 (NSW) in respect of rulings, made by the trial judge on 7 and 12 April and 5 May 2010, to exclude evidence of lawfully intercepted telephone calls and text messages and to confine the use of evidence of other intercepted telephone calls to count one in the indictment against the respondent Anthony Nguyen. 2 The history of this trial is to some extent set out in an earlier judgment of this court given on 31 March 2010. I do not propose to review the circumstances of the trial in any detail, but rather to go directly to the evidence in question, the basis on which it was excluded and the questions raised by this appeal. 3 I should say at once that, in my opinion, error by the primary judge is established in respect of each ruling. There is still the question, however, whether the decision or ruling "eliminates or substantially weakens" the prosecution's case within s 5F(3A) of the Act. 4 I should say at once also that I take the view that, when there are a number of rulings on evidence which are sought to be challenged together in an application such as this, the court can consider the combined effect of those rulings and is not restricted to considering the effect of each individual ruling. In those circumstances, it seems to me that the appropriate course is first to look at each individual ruling to determine whether there is error, and then to consider whether the cumulative effect of those rulings is to eliminate or substantially weaken the prosecution's case. 5 The first ruling which is challenged concerns an intercepted telephone call of 10 December 2005, as to which there is evidence that one of the speakers is the alleged head of the conspiratorial syndicate involved in this case and the other speaker is a person identified in the telephone calls as 'John'. The Crown wishes to use this call to invite the jury to compare the voice of the person identified in the call as 'John' with that in many other intercepted calls which the Crown alleges to be that of John Nguyen. The Crown has other evidence that the relevant voice in those other calls is that of John Nguyen, but the two witnesses who give that evidence may well be the subject of significant credit challenge. 6 The primary judge rejected that evidence on the basis that the subject matter of the call was not relevant to the subject matter of the charges against John Nguyen, that the call occurred before the period of the charges, that the call was made on a telephone not linked in any way to the accused and that the name 'John' was not such an unusual name that a jury would draw the inference that it must be the accused John Nguyen speaking. 7 In my opinion, the circumstance that a voice that the jury may consider to be the same voice as on other telephone calls is that of a person with the name 'John', and also a person acquainted with the alleged head of the conspiratorial syndicate, is a matter of some relevance tending to support the evidence given by the two witnesses. 8 In argument, I gave the example of where an accused is established as driving an identified motor vehicle, say a blue Ford, and there is a blue Ford identified at the crime scene. Even though there would be a large number of blue Fords, the circumstance that a blue Ford is seen at the crime scene would have some relevance to the question of the guilt of the accused. It seems to me that the same reasoning applies in this case. 9 Accordingly, in my view, the ruling on this matter by the trial judge was in error. 10 The first ground of the appeal also concerns a ruling concerning a second intercepted telephone call on 5 June 2006. That call raises very similar considerations and, for the reasons given in relation to the first call, in my opinion the trial judge was in error in relation to that matter also. 11 Ground two of the appeal concerns two intercepted text messages dated 22 May 2006. The Crown alleges that the first text message was sent by a person 'Phong', alleged to be involved in the two conspiracies in this case, to John Nguyen. The second message was allegedly sent by John Nguyen in reply to Phong. 12 It appears that there is evidence associating one of the telephones to Phong and the other to John Nguyen. It appears also that there is evidence that the message sent by John Nguyen was sent from Melbourne. The Crown alleges that, on that date, both John Nguyen and Anthony Nguyen were in Melbourne in pursuance of one of the conspiracies, and the Crown contends that the existence of these messages is relevant to establish that contention. The Crown alleges it is relevant in that the message from a telephone associated with John Nguyen actually came from Melbourne, and the content of these messages gives some support to a contention that Anthony Nguyen was in the vicinity of John Nguyen at the time. 13 The trial judge ruled that the messages had very little probative value and the potential prejudice outweighed the very low probative value. In my opinion, the probative value of the evidence is not insubstantial. It is of course possible that the message sent from the phone associated with John Nguyen was sent by some other person who had access to the phone but, in my view, that possibility, which might be considered as fairly remote, does not substantially impact on the probative value of the material. 14 The primary judge did not usefully identify a way in which the evidence might be misused by the jury and, in my view, there is not such a risk of prejudice as would outweigh the probative value. 15 Ground three relates to a number of telephone intercepts tendered against the accused Anthony Nguyen which the primary judge admitted in respect of the conspiracy alleged in count one, but not the conspiracy alleged in count two. 16 The primary judge made this ruling on the basis that Anthony Nguyen was not a party to the calls, that the calls were not capable of establishing that Anthony Nguyen knew that the money he dealt with prior to 12 March 2006, which was the start of the period for the drug conspiracy alleged in count two, was actually derived from or associated with drug activities, and that the calls themselves were not capable of demonstrating that Anthony Nguyen knew that he was later to be transporting drugs. 17 In my view, there is a relationship between the two conspiracies alleged in counts one and two such that the existence and participation of an accused in one of the conspiracies is of some relevance to the existence of and participation of that accused in the other conspiracy. The overall Crown case is that the money conspiracy concerns money which was applied to and/or obtained from the trafficking in drugs. It is true that the time periods of the two conspiracies are not the same, but that does not operate to exclude evidence in relation to events occurring outside the alleged dates of one conspiracy from being relevant to the existence of that conspiracy. 18 In my view, the evidence in question was relevant to the existence of both conspiracies, and the existence of the conspiracies are matters for the Crown to prove, as well as the participation of each of the accused in those conspiracies. 19 In my opinion, the primary judge was in error in ruling that the evidence was admissible only in respect of one count and not the other. 20 Ground four concerns a ruling made on 5 May 2010 excluding the evidence of two telephone calls made on 1 May 2006 and 22 May 2006. It appears that the trial judge rejected this evidence on the basis that it lacked probative value as it was not established by any evidence that an unknown person speaking in the call knew the accused Anthony Nguyen. 21 In my opinion, that ruling was erroneous. In my opinion, the intercepted telephone calls have relevance in establishing the existence of the conspiracy alleged; and although these calls do not of themselves in any way implicate Anthony Nguyen in that conspiracy, the Crown relies on other evidence to so implicate Anthony Nguyen. The existence of the conspiracy is a matter that needs to be established by the Crown, as well as the involvement of Anthony Nguyen, and in my opinion these telephone calls are relevant to that. 22 It has been submitted for both respondents that there is a vast amount of evidence in the case, and that these disputed matters are only small pieces of evidence, and so the threshold required for the bringing of a Crown appeal under s 5F(3A) is not satisfied. As I have said, I take the view that one considers the cumulative effect of the evidence involved in the Crown appeal; and in my view the cumulative effect of the rejection of all these pieces of Crown evidence would substantially weaken the prosecution case. 23 For those reasons, I would propose that the appeal be allowed. I would propose to order that each of the rulings of the trial judge referred to in the notice of appeal in this case be set aside. 24 JOHNSON J: I agree with the reasons of Hodgson JA and the orders proposed by his Honour. I would make these additional comments. 25 The jury before whom the respondents are presently being tried, since 30 March 2010, constitute the fifth jury empanelled for the purpose of the trial of the respondents. This Court is giving judgment in the third successful appeal by the Crown under s 5F of the Criminal Appeal Act 1912 brought this year with respect to the trials of the present respondents concerning admissibility of conversations and messages upon which the Crown seeks to rely. 26 This Court has been informed that the Crown made application in December 2009 for orders that summaries be admitted of evidence under s 50 of the Evidence Act 1995, an order envisaged under s 145 of the Criminal Procedure Act 1986. 27 In February 2010, the Crown served a notice and sought directions under s 149E of the Criminal Procedure Act, a provision lying within Division 3 of Part 3 of that Act, a Division introduced in 2009 and entitled 'Case Management Provisions and other Provisions to Reduce Delays in Proceedings'. Section 149E gives the trial court express powers to ensure efficient management in the conduct of the trial. 28 With respect, it does not appear that the trial proceedings of these respondents have been conducted in such a way that gives full effect to these significant powers to assist the timely disposal of criminal trials. The provisions contained in the Criminal Procedure Act introduced in 2009 and the mechanisms in provisions such as s 50 of the Evidence Act 1995 serve the public interest in the efficient, fair and timely conduct of jury trials. The use of juries in criminal trials in this State is a most important feature of our system, however, it is not an open-ended commodity. 29 In my view, a trial such as this is the very type of case where the case management powers of the trial court ought be used. The rights of the accused respondents to a fair trial may be appropriately protected, whilst at the same time ensuring the efficient management and conduct of the trial. All of this will serve the public interest in the due administration of justice generally and with respect to the trial of these respondents. 30 LATHAM J: I also agree with the orders and with the reasons of the Presiding Judge and the comments expressed by Justice Johnson. It has not been doubted since the decision of this court in Masters (1992) 26 NSWLR 450 and the decision of this court in Chai (1992) 27 NSWLR 153, that what is said or done by co-conspirators does not lose its relevance as circumstantial evidence of the fact of conspiracy and of the nature of it simply because at the time of the statements or acts, the accused was not then a member of the conspiracy. 31 Her Honour seems to have disregarded a long line of authority in ruling that the conversations, the subject of the rulings on 7 and 12 April, were not relevant because they were outside the dates framed by the indictment. In addition, the admissibility of the material in all four of the Crown's grounds of appeal assumes additional relevance when one takes into account that the evidence of an alleged co-offender, namely Phong, will be subject to a warning under s 165 of the Evidence Act, thus making the evidence of calls involving Phong critical to corroboration in accordance with that warning. 32 For those reasons, I would join in the orders as stated. 33 HODGSON JA: The order of the court is as I previously stated. oOo 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.