THE QUEEN v TONY GEE SUI SZETO [1999] NZCA 93 (26 May 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca449/98 CA10/99

THE QUEEN

V

TONY GEE SUI SZETO

AND

BIEU PHAM

Hearing:	12 May 1999 (at Auckland)
Coram:	Elias CJ Blanchard J Anderson J
Appearances:	L O Smith for Szeto B J Hart and P Dacre for Pham S J E Moore for Crown
Judgment:	26 May 1999

judgment of the court delivered by blanchard j

[1] Mr Szeto and Mr Pham appeal against their convictions for murder.On the afternoon of 23 May 1997 they and three others broke into the Auckland home of the victim, Mr Kirkwood, and hid in a bedroom.They had brought weapons to the property to assist in their plan to kidnap one of the occupants and hold that person for ransom.That evening Mr Kirkwood, a 56 year old man, arrived home by car.He was attacked the moment he entered the house and suffered significant injuries and blood loss.He was kept at the property, tied hand and foot in the bathroom for some time whilst the house was ransacked.His attackers then put him in the boot of his own car and drove him away.He was found dead the following morning on the esplanade at Mangere Bridge.The bindings on his hands and feet had been removed.There was tape around the lower part of his face and loosely around his neck.He had clearly been in an extreme condition when he was left outside on a cool wet night with no realistic possibility of assistance.

[2] Mr Pham and one of the other offenders then engaged in a sustained effort to get rid of the victim's car, which involved renting a property, cutting up the car, a BMW, and dumping various parts at different locations around Auckland.

[3] All five men were charged as both principals and parties to murder, kidnapping, aggravated burglary and theft.

[4] At the trial the prosecution evidence included very lengthy videotaped interviews with the accused persons supplemented, in some cases, by signed statements.Only Mr Szeto gave evidence.In his video statements he had made a number of damaging admissions concerning his involvement.In his evidence he endeavoured to explain these away, to minimise his part in the offending and to blame his co-accused.He was cross-examined at great length by counsel for the other accused and by the Crown.His character and motivation came under severe attack, particularly from counsel for the co-accused.The Crown's position was to utilise his evidence insofar as it assisted the prosecution case against the other accused and to attack that portion of Mr Szeto's testimony in which he sought to absolve himself from blame.

[5] Mr Szeto was in the witness box for some 2½ days, two days of that time being cross-examination.After Mr Szeto left the witness box there was only one other witness whose evidence appears to have taken less than five minutes.

[6] All five accused were convicted of murder or manslaughter.

[7] Each appellant maintains only one ground of appeal.Mr Szeto says that the jury should not have been given the transcript of his video interviews to take with them into the jury room.Mr Pham's appeal is on the basis that the Judge erred in his summing up in failing to give a direction to the jury on the need for special caution in considering the evidence given by Mr Szeto and as to how that evidence might be used against his co-accused.

Mr Szeto's appeal

[8] In his judgment concerning the transcripts the Judge recorded that there were approximately 20 hours of recorded statements.These consisted of videotaped interviews (in the case of Mr Szeto lasting some 5 hours 45 minutes) and a videotaped reconstruction at the victim's home by one accused in which he demonstrated what he and the other accused were said by him to have done. There was also an audiotape record of a conversation between one accused and another (made with the consent of the former) in a police station.There were also statements signed by some accused.

[9] The Judge noted that "the videotapes are often difficult to follow given that they are interviews with persons for whom English is not their first language and on lengthy occasions involved translations from Cantonese and Vietnamese with the imprecision that that may imply."We were given to understand by counsel that this was, if anything, something of an understatement.

[10] Having reviewed the authorities the Judge noted that underpinning the exercise of the discretion to making transcripts available to the jury are the interests of justice and the necessity to ensure fairness to the accused whilst assisting the jury, as the triers of fact, in the proper application of the legal principles applicable to its deliberation.

[11] The principal matters which the Judge saw as bearing on the exercise of his discretion in this case were:

1. The accused's difficulties with English and the imprecision of their evidence "through their lack of fluency in English and from translation."The tapes could be indistinct and difficult to understand.

2. The evidence of planning relevant to the common purpose of the offenders and the evidence of "which accused did what" whilst at the scene and afterwards was critical to the case, but the jury had virtually no evidence on that topic other than appeared in the tapes and as given by Mr Szeto.

3. Whilst the tapes contained evidence against a speaker in each case, they also contained a very considerable amount of inadmissible material in respect of which careful direction had already been given to the jury.Further firm direction would be required.(The Judge's reference to inadmissibility clearly meant admissibility against the speaker's co-accused.)

4. The accused were charged as parties, with evidence of common purpose and each accused's knowledge having to be distilled from what each said in the interviews or from Mr Szeto's evidence.In the statements and the evidence all minimised their own involvement and accentuated that of others.

5. The tapes and transcripts were extremely lengthy.By the time the jury came to deliberate on its verdicts, their playing would be several weeks in the past.

6. Several accused had made written statements to the police which, in the usual way, had become exhibits.It would be contradictory to allow the jury to have those with it during its deliberation but exclude the transcripts.The jury had been encouraged during the playing of the tapes to amend copies of the transcripts to conform with what it heard on the tapes.That exercise having been undertaken without objection, it would be illogical to withdraw the transcripts while it deliberated.(It should be added at this point that no challenge was made to the accuracy of the transcripts as so amended.)

[12] It had been submitted to the Judge, at the close of the evidence, that withdrawal from the jury of all of the transcripts was additionally desirable where one accused had given evidence implicating others.Because the jury would not have the transcript of his viva voce evidence during retirement, it had been submitted that it would give undue prominence to the taped transcripts and lead to unfairness for all accused if the jury had them.It does not appear that in this respect the arguments presented to the Judge singled out the transcript of Mr Szeto's video interviews.

[13] In giving his ruling the Judge said that the jury would be given the firmest of directions as to the use it might make of the transcripts.It is accepted on this appeal that this was done.No criticism is made of the Judge's direction.Without the transcripts, the Judge said in his ruling, the jury would be entirely reliant on memory, counsel's addresses and the summing up in differentiating between the admissible and the inadmissible in the lengthy interviews.In such a critical area, such reliance was undesirable and could be unfair to the accused.With the transcripts the jury was likely to be able to apply the relevant principles more accurately to what it had before it. It could see what each accused said about his actions and take that into account and would be instructed to disregard the rest."Without the transcripts, the chances of error or confused recollection of the nearly twenty hours of videos are...simply too great to withhold the transcripts as the jury deliberates."

[14] For Mr Szeto, Mrs Smith submitted that his video transcript was in a different position from the rest.There was a danger that the jury would have remembered relatively little of the appellant's evidence which contradicted and explained away what he had said in the interviews with the police.There was a danger that, despite the Judge's direction on the point, the jury would have resort to the transcript instead of concentrating on what he had said in Court. Mrs Smith suggested that people retain only about 10% of what they hear and that the transcript might have impacted adversely on the jury's decision because their recall of the evidence would be unsupported by any comparable written reinforcement.Mrs Smith accepted that the jury could have asked to have the Judge's notes of evidence read back to them in relation to portions of Mr Szeto's evidence.They had not done so, but counsel said this must not be taken to show that they had weighed up both accounts equally and decided that they did not need to have the evidence re-read.There had been an unfair imbalance as between the oral testimony and the video interviews.

[15] Mrs Smith said that the situation was exacerbated because, whereas the video interviews contained an account by Mr Szeto of his part in events, in what she described as a relatively flowing way, what he had said in Court was "fractured" by cross-examination from the Crown and from counsel for the co-accused.The Crown had referred to the video interviews in its closing and had referred also to aspects of the cross-examination detracting from Mr Szeto's account given in his examination in chief and the manner in which that account was contradicted by the video.

[16] We have no doubt that the Judge was right to permit the jury to have access to the transcripts.After this complicated trial their task would have been immeasurably more difficult if they had had to rely on their recollection of the videos or ask for portions to be replayed.And, as this Court said in R v Accused (CA250/91) [1992] 2 NZLR 52 at 56, in principle there can be no more reason to deny a jury the assistance of a transcript of a videotaped interview than to withhold from them police statements signed by the accused, "which juries are allowed to have every day."In that case the Court said that it saw no valid objection to the provision to the jury of a transcript of a video interview shown to them "at least if that interview lasted more than a few minutes.Rather, such a practice would usually be conducive to justice."

[17] Since that time it has become routine for juries to have transcripts of video interviews with an accused and to take them into the jury room.In the present case there were also signed statements and it would have been anomalous if those went to the jury as exhibits but they did not have the equivalent record of what was said in interviews recorded on tape.

[18]We do not consider that in the circumstances of this case, with the length of time Mr Szeto was in the witness box and the vigour with which he was cross-examined, it can be said that there was any real likelihood of a disadvantage to him because the jury had his transcript but not a record of his evidence.It seems to us most unlikely that the salient features of his evidence would have faded from the collective memory of the jury.It can be accepted that human memory retains only a small proportion of what is seen and heard, but the likelihood is that a jury will remember those matters which are the most emphasised during the course of evidence, in closing addresses and in the summing up.The Judge spent some thirteen pages of his summing up dealing with the case against Mr Szeto and his defence and, in doing so, referred extensively to Mr Szeto's evidence, summarising the gist of it, referring only quite briefly to passages from the videotapes of Mr Szeto.

[19] It seems to us also that there may have been an advantage to Mr Szeto in the jury having access to the transcript.It became unnecessary, in the event that they wished to refresh their memory about what he had told the police, for the videotapes, or a portion of them, to be replayed.If that had occurred the jury would have seen for a second time Mr Szeto somewhat more graphically making the admissions which he sought to repudiate from the witness box.

[20] We are satisfied that no miscarriage of justice has resulted from the transcript being given to the jury.

Mr Pham's appeal

[21] Section 12C of the Evidence Act 1908 says:

Where in any criminal proceedings it appears to the Judge that a witness may have some purpose of his own to serve in giving evidence and that for that reason there is a risk that the witness may give false evidence that is prejudicial to the accused, the Judge shall consider whether or not it would be appropriate to instruct the jury on the need for special caution in considering the evidence given by the witness.

[22] Mr Szeto's evidence sought to blame his co-accused, including Mr Pham, for the death of Mr Kirkwood, whilst minimising his own involvement.It is said, with some justification, that Mr Szeto therefore had a purpose of his own to serve in giving evidence.But, it is submitted, the Judge did not instruct the jury on the need for special caution in considering that evidence in relation to Mr Pham.

[23] A second, and related, argument for this appellant was that the Judge had failed to warn the jury that, whereas in considering the case against Mr Szeto the explanation given by him in the witness box need do no more than establish a reasonable doubt, the same evidence in relation to the case against the co-accused was part of the Crown case, requiring establishment of the guilt of the co-accused beyond reasonable doubt (R v Smith (1993) 10 CRNZ 184 at 188).

[24] In his skilful argument in support of this appeal Mr Hart took us to the relevant passages in the summing up, pointing out that there was no reference to the need for "special caution" or to the use of Mr Szeto's evidence concerning Mr Pham.Endeavouring to counter a response from Crown counsel that, if there were deficiencies in this portion of the summing up, nevertheless the case against Mr Pham based on his own videoed admissions was so strong that there could not possibly be said to have been a miscarriage of justice, Mr Hart submitted that Mr Szeto's evidence was in fact very helpful to the Crown because it was the only source of information for the jury about the roles respectively played by the various accused in their planning and in what actually occurred on the night in question.

[25] It is necessary to consider the passages in the summing up in which the Judge dealt with Mr Szeto's evidence in the context of the summing up as a whole and of the entire trial.As we observed in connection with Mr Szeto's appeal, the jury came to consider its verdicts after hearing Mr Szeto under sustained attack from counsel for his co-accused and, of course, from the Crown.There can have been no doubt in the minds of the jury that his credibility and motivation in giving evidence reflecting adversely on his co-accused were under attack.In those circumstances, although it would have been preferable for the Judge to make an express reference to the need for special caution, we are of the opinion that what he said was sufficient.In referring to Mr Szeto's evidence the Judge said:

He is a witness like any other witness who has come along, and his evidence is evidence against whichever of the accused it related to, subject to what I have just said as to whether you believe him or not with the suggestion about lies and the like.This is particularly important in relation to Mr Szeto's evidence because he may well have had mixed motives.When he said that he did something or gave evidence as to what he knew before certain actions were undertaken, that is evidence for or against him.Similarly, except to the extent that it was shaken in cross-examination, the evidence which he gave about the actions of other accused leading up to the events in 135B Ladies Mile and at 135B and, of course, afterwards to that extent, is evidence against that accused.It is up to you as the sole deciders of fact to decide whether you accept or reject Mr Szeto's evidence against another accused in whole or in part or what weight you give to it.[Emphasis added]

[26] The jury would have been in no doubt that the Judge was warning them to take care in relation to Mr Szeto because of his "mixed motives".Earlier the Judge had referred to the fact that all counsel, other than Mrs Smith, had attacked Mr Szeto's evidence as being that of a liar, a person having been convicted, and a conman and that a number of "opprobrious epithets" had been thrown at him.

[27] So far as Mr Hart's second point is concerned, we do not find in the summing up a direction that Mr Szeto's evidence against Mr Pham was required to be considered by the jury as part of the material put before it by the Crown in order to show proof beyond reasonable doubt.There was only the usual direction on the Crown's general burden of proof to that standard.However, we are satisfied that to the extent that the summing up may have been inadequate in this respect, it has not led to a miscarriage of justice.It is notable that when the Judge came to summarise the Crown's case against Mr Pham he concentrated on Mr Pham's own admissions and made no mention of the Szeto evidence.

[28] On video Mr Pham had admitted to being at the victim's house and being the first to hit him - on the head with a bar.The victim could not move.He was tied up with a rope bought by Mr Pham and his mouth was taped.He was put (by others) in the boot of his BMW.Mr Pham said he did not travel in the BMW but in another car which met the BMW at "Mangere beach".He pulled Mr Kirkwood out of the boot.He said he loosened the "thing" (tape) wrapped around Mr Kirkwood's neck "so he could call to get help".This last detail was patently untrue since the pathologist's evidence was that the obstruction of breathing by taping under the nose was the likely cause of death.By these admissions Mr Pham effectively implicated himself in the whole course of events leading to Mr Kirkwood's death.The case against him was accordingly very strong and, having reviewed the evidence, we are satisfied that the jury's verdict was fully justified.

Result

[29] The appeals of both appellants are dismissed.

Solicitors

Crown Solicitor, Auckland