Van Nguyen v The Queen P25/2001 [2002] HCATrans 277 (31 May 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P25 of 2001

B e t w e e n -

NHUAN VAN NGUYEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 31 MAY 2002, AT 10.54 AM

Copyright in the High Court of Australia

MR B.S. HANBURY: May it please the Court, your Honour, I appear on behalf of the applicant. (instructed by Beau Hanbury)

MR R.E. COCK, QC: May it please the Court, I appear for the respondent with my learned friend, MR D.T.J. SCULLY. (instructed by the Director of Public Prosecutions for the State of Western Australia)

GUMMOW J: Thank you.

MR HANBURY: Your Honour, this case concerns the provisions of section 8 of the Criminal Code. The applicant was convicted by the jury's verdict of manslaughter having been charged - - -

GUMMOW J: Is there anything in the Court's recent decision in Harwood v The Queen that touches on these issues, do you know. The judgment delivered on 23 May. It dealt with the Queensland Code.

MR HANBURY: Yes. Your Honour, in my respectful submission, the issue in this case is different. The case at hand, the defence raised by the applicant throughout the trial was that he had not been aware that certain persons in the group that were involved in various offences were in fact armed with deadly weapons, that is knives, out of sight - - -

HAYNE J: Well, a billet of wood can be a deadly weapon, can it not, Mr Hanbury. Billets of wood have been used in homicide.

MR HANBURY: Much less than that, as well, but in relation to the case at hand, the issue that is raised is that, as a fact, the deceased died as a consequence of having been stabbed. The defence that was raised was that the applicant, though involved with the group, had not been aware that a knife was present, although it was quite apparent that he was aware that sticks and so forth were held by other persons, but, at the end - - -

HAYNE J: What had he taken with him?

MR HANBURY: It was alleged by the Crown that he had taken a hockey stick with him, but the jury, by its verdict, was not satisfied that that was the case and there was direction evidence given by a prosecution witness that the applicant was, in fact, armed with a hockey stick, but the jury found against that. So, at the end of the day, the case that was put by the Crown, in the applicant's respectful submission rather broadly, was that the applicant was part and parcel of the common intension with the person that delivered the fatal blow to the deceased, because, as the Crown case unfolded, the applicant had formed a common intention to seriously assault the deceased and it was never put that that serious assault was an assault with knives; it was simply that because - - -

GUMMOW J: Well, "specific method" does not have to be determined upon, does it? I do not think there was any specific method in McAuliffe for example.

MR HANBURY: Well, your Honour, the distinguishing feature of McAuliffe is that - - -

GUMMOW J: These people do not sit down and negotiate a contract when they launch on these enterprises.

MR HANBURY: No. In McAuliffe, in the sight of each other - it was a classic case, the applicant would suggest, with respect, of how section 8 operates - within the view of each other and in the presence of each other, with nothing done in secret or away from the view of the others. They set about the deceased, leave him injured, inflict serious injuries in McAuliffe. The body is found at the bottom of a cliff and then it is said by the assailants they are not responsible because it could not be - - -

GUMMOW J: I know. What is the particular proposition of law in this field that you want to contend for?

MR HANBURY: His Honour Justice Jacobs in the case of Stuart referred - - -

GUMMOW J: No. Where about in your summary of argument is the particular proposition of law you want to have us adopt? Now, it is said against you, at paragraph 5 in 101, that what you want to have us agree is:

that each party to an unlawful purpose must agree on a specific method -

for the effecting of the purpose. Now is that misstating what you want to put or do you want to put something else?

MR HANBURY: Well, it is. The proposition - - -

GUMMOW J: Or do you want to put no particular proposition of law? Just have a general inquiry as to what went on?

MR HANBURY: Well, the proposition that is being put is not so much the agreement, but the knowledge of what is being used, because the provisions of section 23 cannot be raised by an applicant in these circumstances. The applicant was not at liberty, in my respectful submission, to rely on any arguments that the matter occurred by accident or was unintended. It was a case - - -

KIRBY J: You want to essentially say, as I understand it, knives are especially dangerous, everyone knows that; pieces of wood can be fatally dangerous, but they are not especially dangerous as knives and therefore that your client should not have been hoist with the fact that he joined in this array, but only if it is found that he knew that knives were going to be used, which are especially dangerous. That is the sort of proposition, is it not?

MR HANBURY: Not wholly, your Honour, in the sense that - - -

KIRBY J: But is it not a problem for your concern about knives though, that the primary judge found in sentencing that your client was aware of the distribution of knives?

MR HANBURY: Well, his Honour might well have taken that view but the defence case was that he was not and the learned trial judge would not direct the jury, in the applicant's respectful submission, that fully inadequately that that was the defence that the applicant was raising.

HAYNE J: The direction that you say the judge should have given is that identified at page 97 paragraph 25 of your outline, namely a direction that the unlawful purpose was to be described as "serious assault with knives". That is, serious assault with a particular form of weapon. Now, why should a direction of that kind be given?

MR HANBURY: Your Honour, because if it is not then it leaves it as a serious assault. The person in the group that has no idea or knowledge that another person has a deadly intent and is, in fact, armed with something in the way of a knife or a gun - - -

HAYNE J: Or with a pair of No 12 size boots; the number of homicides that occur because somebody is stomped in the course of a vicious assault is all too large and this notion that the implement used to effect an assault really matters to the outcome, seems to deny the capacity of individuals to effect violence with no intervening implement.

MR HANBURY: Your Honour, perhaps the circumstances of this particular case are a bad factual example, but one might well imagine quite a harmless situation where two people agree to perhaps go and speak with somebody in the way of harsh language unbeknownst to the other and when they get there the other one does something far more serious than was agreed and had no knowledge of the fact that this was ever going to happen, but - - -

KIRBY J: Yes, but, well, in such a case it would be unlikely, factually, that a jury would find a common purpose and it is said here that in this case the jury was quite discerning as between the various offenders in deciding the issue of guilt and of the offence of which they were guilty. So that, in this case, the jury seems to have applied their mind to the level of participation of the offenders.

MR HANBURY: Your Honour, in my respectful submission, that is quite right, but the answer, with respect to the point which is raised by the applicant, comes effectively from the question that was posed by the foreman when he asked the learned trial judge about whether persons going to a fight armed with sticks have a common intention with those that go to the fight armed with a baseball bat and a knife.

So that it could fairly be said that the jury was discerning, but counsel requested the learned trial judge to give the direction that is now sought by the applicant and in the presence of the jury, at least initially, this was discussed before the jury was sent away and his Honour, with respect, refused to give any further direction in relation to section 8, such as that which was sought. But it would be fair to say, with respect, that the jury was concerned, in my respectful submission, about the applicant's culpability reflected by the question which the foreman of the jury put to the learned trial judge.

Your Honours, in the case of Stuart, his Honour Justice Jacobs at page 450 of the reasons for judgment said, with respect:

The purpose under section 8 must relate both to any ultimate purpose and to the proposed means of achieving that purpose. The probable consequence of the prosecution of the purpose requires a consideration not only of any ultimate objective but also of the proposed course whereby it is to be attained. Otherwise the offence the commission of which is the requirement for the operation of section 8 could not be tested against the requirement that it be of such a nature that its commission was a probable consequence of the prosecution of the purpose.

And so the applicant says that when, as a fact, the deceased was stabbed with a knife, this must have come as a surprise to the applicant on the basis that the applicant's defence was that he was not aware that any person was armed with a knife.

GUMMOW J: Yes.

MR HANBURY: Your Honour, the submission of the applicant is that if the direction had been given in the way sought, the jury's mind would have focused on the applicant's defence, which was that he did not know that any person had a knife. If the deceased had died as a consequence of injuries that were consistent with the knowledge that the applicant possessed at the time the common intension was formed, then that would be a different matter. But it is submitted on behalf of the applicant that this case does raise the issue with respect of whether the applicant should be taken to be responsible for being involved with something, but with an absence of knowledge which others in the group had, and the case is different from many of the cases that are reported, in the sense that there were a large number of people and a deadly act occurred out of the view and not with the knowledge of the applicant. Unless there is some matter - - -

KIRBY J: There just seems to be an air of unreality about your proposition that people who set upon a violent enterprise of this kind have to, as it were, negotiate and be involved in and aware of the particular weapon that is going to be used. That does not appear to be the way either this case occurred or most cases of this kind occur. It is not a matter of conscious negotiation and settlement on the weapons that will be used; it is simply setting out on a violent act which in the end reaches a result which may be a particular offender did not specifically intend, but became involved in an act which was inevitably going to lead to that kind or, very likely, lead to that kind of result. The law just attaches consequences to that.

MR HANBURY: In my respectful submission, your Honour, that line of reasoning could leave it open to say that once an agreement is hatched as to any form of rough dealing with somebody else, attaches responsibility, by virtue of section 8, to anyone that forms that agreement.

KIRBY J: That is one way to put it. The other way to put it is the law recognises that these things get out of hand and that if you engage yourself in activities of this kind, then the consequences go with your engagement.

MR HANBURY: Provided, your Honour, the applicant would say, with respect, that the person concerned is aware and has knowledge, leaving aside any question of intent, that somebody in the group has a knife and if that person has that knowledge, the applicant's submission would be that that person must accept the consequences that follow. But if the person is not aware of such a fact, then the same cannot be said.

KIRBY J: But when we go to airports today they take nail clippers off you, little scissors, all sorts of things; you could not just leave it at knives, you would have to have a scale of particular weapons and that is what the law has set its face against. Boots, baseball bats - you might say they go in, but a piece of wood does not, because it is not a baseball bat or it is not big enough. I mean, this is the impossibility of drawing the line.

MR HANBURY: Your Honour, that is not the submission for the applicant. The submission for the applicant is not that this Court be asked to define some category of dangerous weapons.

KIRBY J: But it is the consequence of the way you want the law to be expressed, it seems to me.

MR HANBURY: Well, in this case, consistent, the applicant would say, with what was said in Stuart by his Honour Justice Jacobs, if the jury's mind had been turned to the question in the direction it was given that the deceased had been stabbed and therefore anyone that had a common intension with the person that stabbed the deceased, that is a different set of circumstances to somebody else that is not there whilst that act is taking place. The application at hand is not that the Court is being asked, with respect, to say - deadly weapons. The question put up by the applicant, with respect, is that the applicant had no knowledge that somebody was going to be stabbed and there is nothing in that argument that would require a trial judge, with respect, to specify anything about the agreement by which the acts might transpire. But, certainly, if it was established that people were all aware and had knowledge of the presence of an implement which was used to inflict grave wounds, then those persons would come within the provisions of section 8. If it please the Court, those are the submissions for the applicant.

GUMMOW J: Yes, thank you, Mr Hanbury. We do not need to call on you, Mr Cock.

The trial judge applied McAuliffe v The Queen [1995] HCA 37; (1995) 183 CLR 108 in his instructions to the jury. In the circumstances of this case, his Honour was right to do so. We are not persuaded that it is arguable that there has been a miscarriage of justice in this case. Accordingly, special leave is refused.

AT 11.13 AM THE MATTER WAS CONCLUDED