THE QUEEN v SONG VAN NGUYEN [1999] NZCA 202 (27 September 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 254/99

THE QUEEN

V

SONG VAN NGUYEN

Hearing:	27 September 1999
Coram:	Tipping J Heron J Goddard J
Appearances:	T Ellis for appellant S P France for Crown
Judgment:	27 September 1999

judgment of the court DELIVERED BY TIPPING j

[1] Mr Nguyen appeals against his conviction for theft.He was found guilty by a jury in the District Court at Wellington of stealing a Sony Handicam Powerpack from LV Martin & Son Limited.The first ground of appeal concerns a sequence of events which took place when Mr Ellis, who represented Mr Nguyen in the court below, was cross-examining the arresting officer, Constable Rongen.The cross-examination proceeded as follows:

Q. Yes, you took my client back to the police station at Johnsonville and arranged for an interpreter?

A. Yes.

Q. And prior to you arranging - prior to the arrival of the interpreter you spoke with some detectives?

A. Correct.

Q. Who were they?Mark Chenery?

A. Yes, Detective Chenery, I think Detective Dave Rose and Senior Constable Dave Ross.

Q. And, as a result of that, prior to the interpreter arriving the detectives arranged for four separate individual search warrants to be issued searching for the video camera to which this item was attached?

A. I know they did prepare search warrants, I don't know how many.

Q. Well, I can show you four, I can show you if you wish an application for a warrant of 6 Rhodes Street, Newtown, 8A Rhodes Street, Newtown, 16A Rhodes Street, Newtown, and Flat 2 Te Aro Flats, Constable Street, Newtown?How did they get that information seeing that he was being detained awaiting for an interpreter and had been advised of his Bill of Rights.You searched him, didn't you?

A. I can't recall.He may well have told me his name, possibly an address. When - I don't know when those search warrants were prepared.I would have imagined it would have been after he was arrested, possibly after the interpreter had spoken to him.

Q. So, when the search warrants in identical terms say at paragraph 3, police were subsequently called and Nguyen is at Johnsonville Police Station awaiting the arrival of any interpreter so he can be spoken to, just have a look at it (witness refers) paragraph 3 of that application.So, he's at the police station awaiting an interpreter, has given his so-called Bill of Rights, has he?

A. Yes.

Q. And you searched him, didn't you?Look at paragraph 11 if it's the same one in that one, Nguyen claims he lives at 8A Rhodes Street, Newtown, although he will not say who lives there with him.He has documentation in his packets for 16A Rhodes Street, Newtown Wellington, and police enquiries also reveal another address, 6 Rhodes Street, Newtown, Wellington.Is that correct?

A. Yes.

Q. You passed that information on to Detective Mark Chenery?

A. I must have, yes.

Q. So you must searched him.Right then as a result four search warrants were executed and nothing was found at any address, was it?

A. No.

MR ELLIS TO THE COURT

Your Honour has a problem?

THE COURT

I do have a problem.Not only - that is further detail there is that document.

MR ELLIS

Well, the proposition is that the video item attaches to a camera.The police are searching for a camera.

THE COURT

No, they're not.Read on.Or let me have it back if I've misinterpreted that paragraph.

MR ELLIS

My proposition is simply they went to these addresses, they searched, they found nothing.It doesn't matter what they're searching for.They found nothing.At four different addresses when he hasn't even got the interpreter there to explain a thing.So much for his rights.

THE COURT

That observation of yours would be perfectly acceptable if the police were only acting on information received from him on that day.What about August?

MR ELLIS

Well, if you want to have a mistrial then I presume -

THE COURT

Well, you're coming very close to it if you suggest the police were acting on information they obtained on this day.

MR ELLIS

I am saying they went to four separate addresses, they have detained my client, they have given him allegedly his rights, they wait for no interpreter, they search him, they go and they find nothing.

THE COURT

Thank you, Mr Ellis.Do go on.

MR ELLIS

I object to the reference to August and I ask for a mistrial.Please note my objection, sir?Would you please rule sir.

THE COURT

I will told you to go on.That is an effective ruling you will continue.

MR ELLIS

That is a ruling that the trial continue?

THE COURT

Yes.

[2] The exchanges between counsel and the Judge took place in the presence of the jury.Mr Ellis argues that the Judge was wrong not to declare a mistrial. So far as we can discern from counsel's submissions, the primary focus is on the Judge's remark "what about August".The first observation we make is that the defence introduced the topic of the four search warrants, and the searches which took place pursuant to them.The second point is that counsel's conduct in seeking a mistrial in front of the jury was apt to highlight the very issue of which counsel was complaining.The appropriate course, and we say this in spite of what Mr Ellis has mentioned as occurring previously, was to inform the Judge that counsel wished to make an application in the absence of the jury. The Judge would have been obliged to hear that application in the absence of the jury.In any event, we agree with Mr France that the jury would almost certainly not have made anything of the reference to August, certainly not if counsel had not highlighted the fact that there was some issue in their presence and probably not even then in the context of the real issues.Having considered everything which has been urged upon us, we do not consider there is any real risk of a miscarriage of justice deriving from this point, and we reject this ground of appeal.

[3] The second ground is related and concerns a passage in the summing-up when the Judge dealt with the foregoing exchange.He said:

I add only one other matter, and it is this:You recall that Mr Ellis and I had that discussion that followed as to whether Nguyen was searched at the police station.Can I make clear that the point of concern is this:The constable was asked to confirm that Nguyen had been searched because these addresses had been found."He has a document in his pocket, and police enquiries revealed another address, is that correct?Answer, yes.Question, you passed that information on to Detective Mark Chenery?Answer, I must have, yes.Question, so, you must have searched him, right then, as a result four search warrants were executed".My concern, and the matter that was traversed with Mr Ellis, was the "As a result".

If the constable searched Nguyen and got his address, and Nguyen says he was not searched, that cannot preclude the fact that police get their information from various sources, and if police decide they are going to execute search warrants at other addresses, well and good, they can apply for search warrants for other addresses.Not necessarily as a result of that what the constable found, and let me make it clear, and without jurors or anyone else being able to raise an inference that because the police searched other addresses, this accused must have been involved with those other addresses.Because the police may have various sources of information, may look for various items in various ways, if they can establish good cause, and that does not raise an inference that it is this accused who must be associated with each of the addresses that a police officer may find good cause to search.

[4] In this paragraph the Judge made no reference to the month of August, albeit the jury would have appreciated the general context in which the remarks were made.It is the second paragraph of the cited passage which is challenged, on the basis that it may have given the jury the impression that Mr Nguyen was generally known to the police and thus had a discreditable past. The Judge's words were not particularly well chosen but the general tenor was that no adverse inference should be drawn against Mr Nguyen from the four search warrants having been issued and the four separate addresses searched. The Judge might have added-searched without success but that has no real relevance to the essential point of this present complaint.Mr Ellis will no doubt have already made the point to the jury in Mr Nguyen's favour that nothing was found in these searches so the point would have been obvious to them.All in all we do not consider the passage complained about involves any real risk of a miscarriage of justice and this ground of appeal must also be rejected.

[5] Mr Ellis complained about various other matters occurring after verdict, as suggesting the Judge was biased and should have had no continuing involvement in the case.These matters cannot logically affect conviction and nothing said in the presence of the jury could possibly raise any perception of bias.The appeal against conviction is dismissed, as is the appeal against sentence which was not pursued.