Nguyen v The Queen [2013] HCA 32

Case Note: Nguyen v The Queen [2013] HCA 32

Facts and Background

On 8 November 2004 Dang Khoa Nguyen ("the appellant"), Bill Ho (“Ho”) and Dang Quang Nguyen ("Nguyen") went together to an apartment to collect a debt owed to either Ho or the appellant for drugs supplied to Mau Duong ("Mau") (at [1]-[3]). Mau was not present but seven other people were. Nguyen was armed with a samurai sword and Ho was brandishing a revolver. In the apartment, Nguyen inflicted cuts on two or three people, while Ho shot Hieu Trung Luu ("Luu") and Chau Minh Nguyen ("Chau"); the latter survived but Luu’s wound was fatal (at [4]).

The appellant, Nguyen and Ho were charged with the attempted murder of Chau and the murder of Luu (at [1]). The case against the appellant and Nguyen was advanced on three bases. The first two were that they were acting in concert with Ho; or they had a common purpose or extended purpose with Ho (at [4]). The Crown argued that the appellant and Nguyen were both parties with Ho in collecting a drug debt and would kill to achieve that end (at [4]). The third was that they aided and abetted Ho (at [4]). The basis for this contention was that, if they had not agreed to kill before they entered the apartment, such an agreement formed after they entered and began attacking people with the sword and gun (at [4]).

The trial judge (Williams J) in the Victorian Supreme Court directed the jury that, if they found Ho guilty of murder, they could only convict the appellant and Nguyen of murder; manslaughter was not open to them (at [6]). The jury convicted all three for the murder of Luu and the attempted murder of Chau (at [7]).

The appellant and Nguyen appealed the verdicts, and while Nguyen’s conviction was quashed, the appellant’s conviction was upheld (at [8]). In Nguyen’s case, the Victorian Court of Appeal held that, on either of the three bases contended by the Crown, there was insufficient to permit the jury to be satisfied beyond a reasonable doubt (at [9]).

The Crown appealed the ruling for Nguyen to the High Court, and Nguyen cross-appealed to uphold the ruling (R v Nguyen (2010) 242 CLR 491). Nguyen argued that “the trial judge had erred in law in failing to direct the jury to consider whether, in the event that the jury were satisfied that Bill Ho was guilty of murder, Nguyen and the appellant might be guilty of manslaughter rather than murder.” (at [10]).

While the High Court was satisfied there was sufficient evidence for the jury to be satisfied beyond reasonable doubt and convict the appellant and Nguyen, it held that on any of the three bases, it was open to the jury to convict Nguyen of manslaughter though they found Ho guilty of murder (at [13], citing R v Nguyen (2010) 242 CLR 491 at 505 [49]-[50].). This was so because, in relation to the three bases:

1. Concert – the arrangement may have been for Ho to only assault or threaten; 
2. Common purpose – it was possible, even if Nguyen knew of the gun, that the purpose was to do no more than serious harm short of really serious injury;
3. iding and abetting – Nguyen may have only assisted or encouraged Ho to assault of threaten, but not to kill or do really serious injury (at [17], citing R v Nguyen (2010) 242 CLR 491 at 503-504 [45]‑[46]).

The appellant also sought to appeal his conviction, arguing that his case was “materially indistinguishable” from Nguyen’s, and should likewise be allowed (at [15]-[16]).

The Decision
The Crown argued that there were material differences between Nguyen’s case and the appellant’s. The reasons for this were that, firstly, there was evidence the debt was owed to the appellant; secondly, there was evidence from Chau wherein the appellant spoke to Ho and nodded for him to shoot Chau; and thirdly, that the appellant did not give any account of his involvement in the events by way of a police interview nor by giving evidence (at [18]-[19]).

The court (French CJ, Kiefel, Bell, Gageler and Keane JJ) was dismissive of the Crown’s arguments. As to the first one, the court held that to whom the debt was owed did not shed any light on the nature of the arrangement between the appellant, Nguyen and Ho in “a way which is apt decisively to distinguish between the position of the appellant and Nguyen in relation to the criminal responsibility of each of them for Bill Ho's crimes.” (at [20]). Regarding the second of the Crown’s arguments, the court held that not only was Chau’s evidence unreliable (it was both disputed and uncorroborated) but, even if accepted, did not preclude the jury from concluding that the arrangement did not extend any further than being party to a plan to the use of violence, and not to really serious violence or homicide (at [21]). The court also held that Chau’s evidence did not preclude the jury finding that any common purpose did not extend to murdering Luu (at [21]). As to the third, the court, citing Azzopardi v The Queen (2001) 205 CLR 50 at 64-65 [34], held that the appellant’s silence could not be indicative of guilt (at [22]).

The court considered the real question to be whether the trial judge misdirected the jury in instructing that a conviction of manslaughter was not open if it convicted Ho or murder (at [22]-[23]). With reference to the preceding discussion, the court naturally answered yes (at [23]). The court further held that, even if the correct direction had been given, it was not inevitable that the appellant would have been convicted of murder regardless (at [24]). Therefore, a substantial miscarriage of justice occurred (at [24]). Thus the appeal as to the conviction for the murder of Luu was allowed.

As to the conviction for the attempted murder of Chau, the court, citing Gillard v R (2003) 219 CLR 1 at 14 [27], 33 [96], held, that where, because of an incorrect decision on a question of law, the jury has been deprived of the opportunity to consider the possibility of convicting for manslaughter rather than murder for another count tried at the same time, the error may have effected the entire trial (at [26]). Thus the appeal as to the count of attempted murder was also allowed. Both convictions were quashed and new trials were ordered (at [28]).

Analysis and Conclusions
The case illustrates, by way of comparison with R v Nguyen (2010) 242 CLR 491 that factual differences must be material to the elements of the offence charged. By arguing that, because the debt was owed to the appellant it somehow made him more culpable than his brother, is to introduce notions of motive into Australian criminal law which the courts have continually rejected. Further the court reaffirmed the right to silence as enunciated by the High Court in Azzopardi v The Queen, insofar as the appellant’s silence could not be relevant to assessing his guilt. I do note that the recently introduced s 89A to the Crimes Act 1900 (NSW) by the Evidence Amendment (Evidence of Silence) Act 2013 (NSW) will erode this position in NSW. Finally, the case, as did R v Nguyen (2010) 242 CLR 491, outlines the consequences of trial judges misdirecting juries as to the available offences they may convict on. A new trial is not simply a do-over; successful appellants have gotten to see their opponent’s cards and are in a much better position in meeting the Crown’s case than they were the first time around.