Nguyen v The Queen [2008] HCATrans 410 (5 December 2008)

Last Updated: 10 December 2008

[2008] HCATrans 410

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M51 of 2008

B e t w e e n -

LINH VAN NGUYEN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 5 DECEMBER 2008, AT 12.19 PM

Copyright in the High Court of Australia

MR C.B. BOYCE: If it please the Court, I appear on behalf of the applicant with my learned friend, MR M.J. CROUCHER. (instructed by Valos Black & Associates)

MR J.D. McARDLE, QC: If the Court pleases, I appear with my learned friend, MR D.A. TRAPNELL, SC, for the respondent in this application. (instructed by Director of Public Prosecutions (Vic))

HAYNE J: Yes, Mr Boyce.

MR BOYCE: Your Honours, this case, in our submission, raises directly for consideration whether and in what form there need be a factual connection, call it causative or otherwise, between the acts of a secondary party who is an aider and abettor and the act of a principal. We say that it is a vexed question, your Honours, because in some it is a question as to whether aiding and abetting that particular form of complicity is a form of inchoate offending or otherwise.

We use the term “inchoate offending” advisedly because it would seem, at least from Mr Croucher’s and my researches, that the Law Commission of England and Wales in its report 300 of 2006, working on the basis that at common law there must be a material connection between the acts of an aider and abettor and those of a principal recommend to fill the void, or a void that the Law Commission finds exists, the creation of a species of inchoate offending known as encouraging or assisting crime.

In the present case, the act of aiding and abetting was the applicant’s presence at the scene and the provision of a car to assailants at the time the crime was committed. There was evidence, obviously enough, of the applicant’s involvement in crime prior to that point in time, and there was evidence of his involvement post. That evidence was admissible against the applicant in proof of his at least intent at the time of his aiding and abetting, but that evidence was, it is submitted, not evidence of acts of aiding and abetting.

The learned trial judge in his reasons for sentence summarised rather succinctly, in our submission, at application book No 4, at application book page 1836, what exactly it was that the applicant had done to aid and abet the principals in the commission of crime. At line 3 on application book 1836 the learned sentencing judge said as follows:

The prosecution said, and it was not disputed, that the verdict of guilty meant that the jury was satisfied that you were present in your car in the vicinity of James Huynh at the time that one or more of the principals in the first degree murdered James Huynh and that you intentionally encouraged Cuong Lam, Hung Van and David Nguyen to commit the murder by your presence and by waiting for them in your motor car and that you also intentionally helped them by making your car available as a means of escape from the scene of the murder.

HAYNE J: Do we need to read that in the context provided by the preceding paragraph, 1835, lines 26 or 25 and following?

MR BOYCE: Yes, your Honour.

HAYNE J: Yes.

MR BOYCE: Nevertheless, the miscarriage here, if I may cut straight to it, your Honours, is that because of the learned trial judge’s directions this jury were not required to find any form of objective, factual relationship between the applicant’s relevant act of aiding and abetting and the acts of those who he was alleged to have aided and abetted. They were not - - -

HAYNE J: Well, can I just understand that a little better?

MR BOYCE: Yes, your Honour.

HAYNE J: Are the relevant passages of the charge at application book 180 and following?

MR BOYCE: The relevant passage of the charge - - -

HAYNE J: You go back maybe to 178 or 177 even, but what I had in mind particularly, Mr Boyce, if you go from 177 on, you get at 178 lines 26 through to 179, about 9 or 10 you get Lowery and King (No 2), do you not, in terms?

MR BOYCE: Yes, you do, your Honour.

HAYNE J: Then at 180, lines 12 and following, in effect, look at what they did, and in the case of Mr Nguyen here, in effect, look at the events at the bus stop. Is that right?

MR BOYCE: Yes, that is right.

HAYNE J: Then 181 to 182 is the passage to which you take chief exception, is that right?

MR BOYCE: Yes, your Honour, that is what we would submit is the crucial passage of the judge’s charge.

HAYNE J: Well, what is it there that epitomises the error that you say is made?

MR BOYCE: The epitome of the error is found, your Honour, in the judge’s direction to the jury:

that is, it is no part of the prosecution’s proof to show that what the aider and abettor did, in fact, assisted, encouraged or supported the principal offender.

Your Honours will know that our ground of appeal says by reliance upon the Acting Chief Justice Cussen in Russell, adopted in Giorgianni, and in the New South Wales Court of Criminal Appeal in Phan, that the directions that ought to have been given in this case, and there was argument about it and ruled against in ruling 20, were that the acts of the aider and abettor must bring about, render more likely the commission of the offence.

HAYNE J: Well, the essence of the complaint is, is it, that if a person standing present at the scene, understanding that in whatever extended sense one has to, but somebody present at the scene, yells out to the principal offender, “Go ahead and kill him”, it is part of the Crown proof to demonstrate not only was that said but that it was heard and acted on. Is that right?

MR BOYCE: Yes, but could I qualify that, your Honour? Yes, but not to say – and to make our position abundantly clear – that there would need to be introduced into the law of aiding and abetting a form of but for or sine qua non causation. In our respectful submission, the law as described by Acting Chief Justice Cussen in Russell and proved of in Giorgianni, the use of the terms “bring about or render more likely” adequately explain the form of objective factual connection that must exist, for if it does not exist then aiding and abetting is, as it would seem the Law Commission would hold it to be, a species of inchoate offending.

We are here, your Honours, to vindicate, as it were, the position of aiding and abetting as a form of accessorial liability. We are here to vindicate, to put it one way, its derivative nature that it not descend to the level of inchoate offending.

HAYNE J: But is it – I just need to be plain that the proposition you advance is in the respect I have tried to identify, namely, that it is part of the Crown proof to show that the example I gave, the encouragement was heard and acted upon, that is a novel proposition, is it not?

MR BOYCE: With respect, no, and can I just take the Court to the relevant part of the Law Commission’s report? It is in my applicant’s supplementary materials behind tab 1, and in particular at page 21 of the - - -

HAYNE J: Well, go on, Mr Boyce, I am not sure that we have it.

MR BOYCE: Well, I have copies of it, your Honour, if you want.

HAYNE J: Yes, but you go on, do not use your time.

MR BOYCE: Thank you. At page 21, your Honours, at paragraph 3.2, the Law Commission spoke of a serious gap in the common law:

At common law if P commits or attempts to commit an offence, it matters not whether D encouraged, on the one hand, or assisted on the other, P to commit the offence. D is an accessory to and guilty of the offence (or the attempt to commit it) provided that the encouragement or assistance in fact contributed to the commission of the offence. However, what if D’s encouragement or assistance fails to bear fruit? This could be because –

and if I can move down to subparagraph (2) –

(2) P does commit or attempt to commit the offence but without reference to the assistance or encouragement that D has provided:

Example 3B

D, knowing that P intends to burgle V’s premises, leaves a ladder outside V’s house to assist P to enter the premises. P, unaware that D has left the ladder, commits the burglary without using the ladder.

Paragraph 3.3:

In examples 3B and 3C, it might be thought that D, by virtue of trying to assist P, could be convicted of attempting to commit the offence that P has committed. However, it is not an offence to attempt to aid, abet, counsel, procure or suborn the commission of an offence. That leaves the possibility of D being inchoately liable for assisting P to commit an offence. However, the common law does not recognise inchoate liability for assisting the commission of an offence if the offence is not subsequently committed or is committed without reference to D’s assistance.

Now, you see, the - - -

HAYNE J: But the other point I think you may need to address is this. Assume for the purposes of argument that the issues which you raise are issues of a kind that might be presented by a wholesale look at the law of aid and abet. In the circumstances of this case, what was the issue that we would have to focus on? It would be the adequacy of the instruction, would it not?

MR BOYCE: Yes, based upon - - -

HAYNE J: In particular, in the circumstances of a case where the allegation was that Mr Nguyen drove the principal offenders to and from the scene and provided the car from which one of the implements was removed that was used in the attack?

MR BOYCE: Yes, a very good vehicle, with respect, your Honour, in order for this Court to – pardon the pun – to consider the case, and may I submit the reason why?

HAYNE J: Yes.

MR BOYCE: The reason why is as follows. It is important to view – this is why I have taken the Court to that part of the reasons for sentence – the applicant’s acts of aiding and abetting – well, criminal acts as they were, or acts for which he could be held criminally liable, through the particular lens or the lens of the particular form of complicity he was presented on. This is why I took your Honours to that part of the sentence. The act of aiding and abetting was not driving them to the scene, it was not driving two of the assailants away or however many away from the scene. The act was being present in the car during the commission of the offence. This is why I have been careful, your Honours.

It is not to say that the post-offence or pre-offence evidence is not relevant to question of intent, but they are not acts of aiding and abetting. So in my respectful submission, a very good vehicle, if I can use the term, to consider the question because you have a person in a car who does not get out of the car who waits in a car while offences are committed nearby to the car. Had the jury in this - - -

HAYNE J: Well, what is the difference from the standard motor man in an armed robbery?

MR BOYCE: Concert, different form of complicity.

HAYNE J: Yes.

MR BOYCE: Different form of complicity. This is why I make the submission I do about it being – and this is why I submit that it is a good case to consider the question because you have the fact of a person sitting in a car somewhat away from the scene. Had this jury been asked to determine, are you satisfied beyond reasonable doubt that that act contributed – to use the terms of the court below because we say there is a tension between what the court below said and what the learned trial judge said – materially contributed to the commission by the principal of the principal’s offence, it is beyond argument it is submitted, with respect, that the answer may have been different.

This is not a case of concert, your Honours. The Crown made their choice of the form of complicity upon which to present the applicant. The form of complicity chosen was aiding and abetting, and if that is the form of complicity that is chosen, that is the form of complicity that must be applied.

KIEFEL J: Well, the applicant took the two to the scene of attack and they were carrying weapons at that time.

MR BOYCE: Yes, relevant to intent.

KIEFEL J: You say that comes close to common intention?

MR BOYCE: Relevant to intent, but not – the act of aiding and abetting can only commence once the crime is commenced. You are encouraging the commission of a crime or assisting in its essence, not a concert.

KIEFEL J: Do you say taking people armed to the place of attack is not rendering a form of assistance?

MR BOYCE: No, because the crime has not begun.

HAYNE J: Waiting there in the car?

MR BOYCE: Arguably, arguably.

HAYNE J: Observing the attack occurring?

MR BOYCE: Arguably, yes, evidence of it, but - - -

HAYNE J: Then driving them away?

MR BOYCE: Evidence relevant to intent, but the crime is finished. That is why I submit that it is – with respect, your Honours, it is difficult to think of in pure theoretical terms a better - - -

HAYNE J: I suspect we are trying to bring you to the real world - - -

MR BOYCE: You probably are, your Honour, yes.

HAYNE J: - - - rather than to theory, Mr Boyce, that is the difficulty.

MR BOYCE: Indeed, but – and I have mentioned this a moment ago – the troubling thing also it is submitted from the applicant’s position is what we submit is the tension between the court below’s reasons and the learned trial judge’s reasons, even though the learned trial judge’s reasons were upheld by the court below. Can I just take the Court to the reasons of the court below, application book 4, page 1938, paragraph 92.

Notwithstanding the trial judge has directed this jury that there need be no connection in fact between the objective connection, the directions – the finding of the court below is:

The culpability which attracts the operation of the criminal law to an individual designated as an aider and abettor under those principles arises from the fact of his or her presence at the time that the crime is committed and behaviour whilst there and not by reason of any earlier agreement or arrangement with the perpetrator with respect to it. That situation is separately addressed. Whatever uncertainty may exist with respect to the limits of accessorial liability, it is crystal clear that simply being present at the scene of a crime being committed by another is insufficient to render an individual also guilty. Further, it is not enough that the person alleged to be aiding and abetting is present by reason of curiosity, a high level of interest or even because of the presence of strong approval of the principal’s conduct.

This is the important part, your Honours –

The justification for rendering the individual liable arises from the contribution that he or she intentionally makes to the commission of the crime. This, of course, can take different forms and these are encompassed by the broad descriptive notions of counselling, procuring, assisting or encouraging the principal offender. It is apparent that quite different questions will be thrown up according to the type of contribution alleged and the circumstances surrounding the particular offence. But whatever the form of contribution, in order to become a party to or participant in the commission of the

crime by another, an aider and abettor must do something of a kind that can be reasonably seen as intentionally adopting and contributing to what is taking place in his presence. In this sense, the aider and abettor becomes linked in purpose with the principle actor.

Now, we read that part of the learned court below’s reasons for decision and we perceive some movement towards the - - -

HAYNE J: Well, the alternative point of view would be that that is a reflection of what appeared in the judge’s charge at page 179 and that the passages to which you draw particular attention at 181 to 182 are directed to the separate and distinct question of does the Crown have to show that the encouragement worked?

MR BOYCE: Your Honour, if there can be no – and we do not put it as high as but for – there can be no factual connection between the two, there can be no contribution to the commission by the principal of his offence. Now, this is not novel in this sense, your Honour. Your Honours will have read ruling 20, your Honours will have read the many authorities that were cited by the learned trial judge.

HAYNE J: Yes, I see the time, Mr Boyce, is there something you particularly needed to add?

MR BOYCE: Only to submit that those authorities in themselves talk about encouragement in fact. I have given the Court Professor Smith’s article, unfortunately rather late. He did say, Professor Smith, in his essays in honour of Glanville Williams that there ought be assistance in fact but for causation. I have taken the Court to the Law Commission.

HAYNE J: Yes.

MR BOYCE: Your Honours, there is a material difference between the way in which we submit the law ought be and the way in which it is, or at least in which the learned trial judge, and it made or could very well have made a material difference in the prosecution of this applicant and his conviction. If the Court pleases.

HAYNE J: Thank you, Mr Boyce. Mr McArdle, we will not trouble you.

We are not persuaded that it is in the interests of justice in the particular case or more generally that there be a grant of special leave to appeal in this matter.

Special leave is accordingly refused.

AT 12.41 PM THE MATTER WAS CONCLUDED