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15
Court of Criminal Appeal 3 April 2003

Regina v Ngo [2003] NSWCCA 82 revised - 16

[2003] NSWCCA 82

Also reported as (2003) 57 NSWLR 55
Homicide
CRIMINAL LAW JURY WHETHER FALURE TO DISCHARGE JURY WHETHER INADEQUATE DIRECTION AS TO LIES

Citation: Regina v Ngo [2003] NSWCCA 82; (2003) 57 NSWLR 55
Court: NSW Court of Criminal Appeal
Date: 3 April 2003
Judge(s): Stein JA, Sully J, Levine J

Background

The appellant was a Fairfield City councillor and former independent candidate for the State seat of Cabramatta. He was convicted of the murder of Labor MP John Newman, who was shot twice in the chest outside his Cabramatta home on 5 September 1994. The Crown's case was that the appellant, motivated by political rivalry, organised the assassination through associates and employees of the Mekong Club, which he had established and effectively controlled.

Two co-accused, David Dinh and Quang Dao, were acquitted by the same jury. The appellant was found guilty on 29 June 2001 and sentenced to life imprisonment on 14 November 2001. He appealed to the Court of Criminal Appeal on multiple grounds.

At the hearing, the appellant's senior counsel narrowed eighteen originally filed grounds of appeal to thirteen, covering issues relating to jury discharge, videolink evidence, identification evidence, directions to the jury, and the admissibility of certain police evidence.

  • Whether the trial judge erred in failing to discharge the jury after a juror was inadvertently exposed to inadmissible evidence, and whether the corrective direction given was adequate
  • Whether allowing two witnesses to give evidence by videolink under the Evidence (Audio and Audio Visual Links) Act 1998 infringed the appellant's right to a fair trial, particularly where issues of identity were involved
  • Whether s 20A of the Evidence (Audio and Audio Visual Links) Act 1998 required the accused to be able to see witnesses in all circumstances
  • Whether the videolink arrangements prevented the appellant from attending part of the proceedings under the Supreme Court Rules
  • Whether directions on identification evidence from witnesses referred to as Mr and Mrs L were adequate
  • Whether directions on the evidence of accomplice witnesses T and N were adequate
  • Whether the direction as to lies (referred to as a "Crofts direction") was adequate
  • Whether the admission of a police officer's evidence was in error
  • Whether the trial judge erred by failing to direct the jury on the significance of the appellant not seeking waiver of a two-year rule
  • Whether the directions concerning the recovered firearm were adequate
  • Whether the jury required a direction on the significance of the acquittals of the co-accused
  • Whether the trial judge erred in leaving to the jury a possible basis of conviction that the shooter was witness T
  • Whether the directions on the relevance of evidence of previous attempts and plans to kill the victim were adequate

Decision

Failure to discharge the jury. The Court considered whether the inadvertent exposure of a juror to inadmissible material gave rise to a reasonable apprehension, in the mind of a fair-minded and informed observer, that the jury would not discharge its task impartially. The Court found that the trial judge's corrective direction was adequate to address any prejudice and that no miscarriage of justice arose from the failure to discharge the jury.

Videolink evidence. The Court examined the statutory framework under the Evidence (Audio and Audio Visual Links) Act 1998 and the accused's common law right to confront witnesses, particularly where identity was in issue. It concluded that s 20A did not confer an unqualified right on the accused to see witnesses in all circumstances, and that the trial judge had properly balanced the forensic disadvantage to the appellant against the legitimate interests of the witnesses. The videolink arrangements did not prevent the appellant from attending a part of the proceedings within the meaning of the relevant Supreme Court Rules.

Jury directions. The Court examined a series of challenges to the adequacy of the trial judge's directions, including directions on identification evidence, accomplice evidence from T and N, and the lies direction. On each, the Court found the directions sufficient in the context of the trial as a whole. The Court noted that in several instances experienced trial counsel had raised no objection and sought no redirection at the time, which the Court regarded as an indicator that no miscarriage of justice had occurred. Consistently with the approach stated in cases such as R v Chidley and R v Saffron, the Court observed that criticising a summing-up after trial without contemporaneous complaint was a course to be deprecated.

Remaining grounds. The Court rejected each of the remaining grounds. Where no objection had been taken at trial to the evidence or directions in question, the Court treated that silence as significant. The absence of any contemporaneous complaint by experienced counsel, in a large and closely contested trial, weighed against the conclusion that any error had caused a miscarriage of justice.

Orders Made

  • The appeal against conviction is dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a failure to discharge a jury following inadvertent exposure to inadmissible material will not constitute a miscarriage of justice where an adequate corrective direction has been given and the incident did not give rise to a reasonable apprehension of partiality.

  • Under the Evidence (Audio and Audio Visual Links) Act 1998, s 20A does not guarantee an accused an unqualified right to see witnesses giving evidence by videolink in all circumstances, even where identification is in dispute. The trial judge retains a discretion and must balance forensic disadvantage against witness interests.

  • Allowing witnesses to give evidence remotely did not, on the facts here, amount to preventing the accused from attending a part of the proceedings within the meaning of the Supreme Court Rules.

  • Failing to object or seek a redirection at trial can significantly undermine an appeal ground based on alleged inadequacy of jury directions, particularly in substantial trials conducted by experienced counsel. The Court reiterated the long-standing principle that trawling through a summing-up after trial without contemporaneous complaint is a practice the court discourages.

  • In dismissing all grounds, the Court of Criminal Appeal affirmed that the scale and quality of representation in a trial are relevant considerations when assessing whether any error caused an actual miscarriage of justice.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 55, 56, 87(1)(b) and (c), 108(3)(b), 137, 164, 165
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW), ss 5(1A), 5(2), 5B(1), 5B(2), 20A
- Evidence (Children) Act 1997 (NSW)
- Supreme Court Rules, Part 36 rule 2A(1) and Part 75 rule 2(8)(b)
- European Convention on Human Rights, Article 6
- Charter of Rights and Freedoms (Canada)

Cases (selected):
- Webb & Hay v The Queen (1994) 181 CLR 41
- Domican v The Queen (1992) 173 CLR 555
- Dietrich v The Queen (1992) 177 CLR 292
- BRS v The Queen (1997) 191 CLR 275
- Festa v The Queen (2001) 208 CLR 593
- Pollitt v The Queen (1992) 174 CLR 558
- McKinney v The Queen (1991) 171 CLR 468
- R v Ngo (No 2) (2001) 124 A Crim R 151
- Reg v Chen (2002) 130 A Crim R 300
- R v Saffron (No 1) (1988) 17 NSWLR 395
- R v Chidley (1956) 73 WN (NSW) 376
- Maryland v Craig (1990) 497 US 836
- Jago v District Court of NSW (1989) 168 CLR 23
- House v The King (1936) 55 CLR 499