[1] Following a trial before Judge Zohrab and a jury in the Nelson District Court in June 2009, Mr Nguyen was convicted of one count of causing grievous bodily harm with intent to cause grievous bodily harm pursuant to s 188(1) of the Crimes Act 1961 and one count of common assault pursuant to s 196 of the Crimes Act.
[2] He appeals against his convictions. The sole ground of appeal that is pursued is that there is fresh evidence that would impact on the victim’s credibility so as to give rise to the risk of a miscarriage of justice. There were other grounds detailed in the notice of appeal but these were abandoned at the hearing.

Background

[3] The Crown case at trial was that, on the evening of 27 May 2008, Mr Nguyen assaulted the victim Mr Thanh Nguyen, a boarder at his home, with the assistance of another boarder, Mr Binh Tran. In this judgment we will call Mr Thanh Nguyen “the Victim” and Mr Binh Tran “the Boarder”.[1]
[4] The Victim’s evidence at trial was that, during an otherwise happy drinking session with Mr Nguyen and the Boarder, Mr Nguyen unexpectedly punched him in the face causing him to fall to the floor. He was then held and hit and kicked repeatedly to the head, chest, legs, stomach and back. When he eventually woke up from the resulting faint, he went back to his bedroom where he stayed, barring occasional unsuccessful trips to the toilet until Mr Nguyen’s son called an ambulance the next day.
[5] The Victim subsequently underwent surgery for injuries caused by the beating. The doctor who operated on the Victim on 28 May 2008 stated that the Victim had two perforations to his bowel which were consistent with blunt trauma to the abdomen and some swelling to the left side of his face.
[6] The Victim was cross-examined by the defence counsel acting for Mr Nguyen and the Boarder who put to him that the defendants had not hit him but rather that he was so drunk that he did not know what had happened, that he had behaved badly, including in relation to a knife, and that he had fallen over and hurt himself. The Victim accepted in cross-examination that he could not see whether the Boarder had hit him because he was so dizzy from Nr Nguyen’s initial blows but he did reject the suggestion that the Boarder was not even in the room at the time of the assault.
[7] Mr Nguyen gave evidence in his own defence. He claimed that he drank only a few beers with the two boarders that evening due to a warning from his doctor about the effects of alcohol on his liver. His evidence was that, during the course of the evening, the Victim and the Boarder had a disagreement over a knife which Mr Nguyen took away. According to Mr Nguyen, the Boarder went to bed first. Then he retired for the night, leaving the Victim sitting in the lounge swearing about the Boarder. Mr Nguyen denied ever hitting the Victim, citing an injury affecting his right arm. The Judge at sentencing said that he considered Mr Nguyen’s evidence incredible and unreliable.
[8] At the close of the defence case, both defendants applied for discharges pursuant to s 347 of the Crimes Act. The Boarder’s application was granted but Mr Nguyen’s was not. Mr Nguyen was subsequently found guilty of both charges and sentenced to four and a half years imprisonment.

Application to adduce new evidence

[9] The evidence that is sought to be adduced on appeal tells of an alleged attempt by the Victim, the Boarder and another individual (“the Associate”) to blackmail Mrs Nguyen (Mr Nguyen’s wife) prior to Mr Nguyen’s trial and of further demands made after trial.
[10] It is submitted that, had Mr Nguyen known of this alleged attempt to blackmail Mrs Nguyen by the Victim and the Boarder (Mr Nguyen’s co-accused) before trial, the Victim would have been cross-examined as to the reasons for the approach and it would have been put to the Victim that either:

(a) he was attempting to pervert the course of justice by seeking a payment in order not to give evidence; or

(b) he was attempting to extort money by threat that, if he was not paid, he would give false evidence of an assault made by Mr Nguyen on him.

[11] In order to be admissible on appeal, any new evidence has to be sufficiently fresh and sufficiently credible.[2] It also has to be of such a character that, if considered alongside the evidence given at trial, it might reasonably have led to a verdict of not guilty.[3] It is submitted that the proposed evidence would have called the Victim’s credibility into question and that it could have created a reasonable doubt in the jury’s mind.
[12] We now set out the proposed new evidence in greater detail, including what arose from the cross-examination of Mrs Nguyen before us.

More detail on proposed evidence

Police officer’s evidence

[13] Detective McBride of Nelson deposed that on 8 January 2010 Mrs Nguyen had come into the Nelson police station stating that she had received a letter from an unknown person demanding she pay $15,000 to the Victim. Mrs Nguyen said to the police that she thought the letter had been sent to her by the Boarder and the Victim because they and another man had demanded money from her in late 2008. The letter was tested for fingerprints but none of the fingerprints that were found belonged to the Victim or the Boarder.
[14] On 4 March 2010 the Detective received a letter from Mrs Nguyen (dated 28 February 2010) stating that the Boarder had been to her home asking for money to pay back a woman known as the “blind lady” and she was very scared. She asked the police to help her. A trespass notice was served on the Boarder at her request.
[15] The Detective also received a letter from Mr Nguyen through his counsel on 30 March 2010, alleging that approaches had been made to Mrs Nguyen by the Boarder on 28 February 2010 and 6 March 2010.
[16] The Detective interviewed the Boarder and the Victim in April. She also made inquiries from the ANZ bank but no record was found of a loan application in July or August 2008. This, however, does not mean that application was not made. The bank security tapes for that period are no longer available.

Mrs Nguyen’s affidvait

[17] In an affidavit filed in support of the appeal, Mrs Nguyen deposed that in late July or early August 2008 when her husband was bailed to Trentham at the house of their friend Quang Vinh Tran (called “the Friend” in this judgment) she was approached by the Boarder who said he was ringing on behalf of the Victim. She met both men outside her house and they asked her for $30,000. When she said she could not raise that amount of money, they said they would accept $15,000 and not to speak to her husband about it.
[18] She said that she contacted the Friend and “told him about what had happened”. He arranged to come to Nelson and accompanied her to the bank to try and raise the money but they would not lend it to her. After speaking to the woman at the counter about the loan, she said that she went and spoke with the Boarder just inside the bank and said that she could not raise the money. She said that the Boarder and his friend were angry and made it clear that, if she could not raise the money, the case would go ahead and her husband would go to jail. She said that she was very scared of the Boarder and his friend and “did not speak to her husband about this until very recently because I was frightened of what would happen”.

Mrs Nguyen’s evidence before us

[19] Mrs Nguyen gave evidence before us through an interpreter. During this hearing, Mrs Nguyen was told that the Boarder said that she had borrowed money from a blind woman in Nelson in order to help get a relative from Vietnam to New Zealand. She denied this and said that the Boarder had brought the blind woman to the house and told the blind woman that the house belonged to him as he owed money to the blind woman. She also denied owing money to the Boarder.
[20] She said that on 11 June 2008 she had borrowed, jointly with her husband, $30,000 to repair her house. She denied that she had borrowed this money to repay the money that she had borrowed from the blind woman. She said that she had never even met the blind woman before the Boarder brought her to the house, which occurred at a time when her husband was still there.
[21] The $30,000 was borrowed the day after her husband was arrested and both she and her husband had to sign the loan documentation. Neither the Boarder nor the Victim were living at the house when she and her husband borrowed that money. However, it was the Boarder who had done most of the repairs to the house. By the time she went to the bank with the Victim and the Boarder in late July early August 2008 (she said that she was too scared to remember the exact date), it was her evidence that she had none of the money left out of the $30,000 that she had borrowed.
[22] Mrs Nguyen said that she had gone to the bank on the second occasion to try to borrow money so that the charges against her husband would be dropped. She said that she was too afraid to tell her husband about the approach from the Victim and Boarder because she had received a threat from them and “also they had a group of seven or eight brothers and cousins”. She was also afraid to tell her husband “because [I] knew that if [my] husband knew about [it] he would be too angry and there might be a fight which may affect his residency application in New Zealand.”
[23] Mrs Nguyen at first said in cross-examination that she had no contact with the Victim and the Boarder between the time of the visit to the Bank and the trial. She said that she “was so scared [I] only stayed inside [my] house until the trial.” Asked again if they had contacted her, she said that they made no contact “except one time [the Boarder] contacted her and said that [the Victim] wanted to meet her and she said ok, so [the Boarder] brought [the Victim] over and [the Victim] demanded the money.” She said that this was the final time but she was too scared to tell the police.
[24] She said that they threatened to hurt her family if she did not pay the money. She agreed that she did not pay the money because she had no money. She agreed they did not do anything to her but said “they always threaten”. She said that she did not want to contact them after this one other meeting because “they threaten [me] all the time”. When challenged on this she said “they didn’t contact [me] but they continually threatened [me].” [4]
[25] She then “remembered” another time she had contact with the Victim, perhaps in July 2009. She said that the Victim had contacted her for money because he had crashed his car. He said that, if she gave him the money, he would tell the police to release her husband. She agreed that she had not told the police about this incident and had not mentioned it in her affidavit in the court or in her police statement. She said that she did not go to the police because she was threatened by the Victim and that she was too scared being all by herself.
[26] Mrs Nguyen agreed that she had immediately gone to the police when she received the letter on 8 January 2010 because she “was so shaken”. When asked what changed between the original threats in 2008 and receiving the letter she said that she “got more scared by the letter and at that point [I] thought that even if [I] was facing death [I] would have to go to the police and tell them that”.

The Friend’s evidence

[27] The Friend confirmed that he had come down to Nelson about two or three months before the trial in order to act as an interpreter when Mrs Nguyen went to visit the bank to borrow some money. Once he got there, Mrs Nguyen told him that she needed to borrow the money to pay the Victim but did not say why. However, he said that he knew that Mr Nguyen was charged with assaulting the Victim. He stated that Mrs Nguyen told him not to tell anyone about borrowing the money. He said “I thought she was scared of [the Victim] and his associates.”
[28] According to the Friend, after they had finished at the bank and Mrs Nguyen had been refused the loan, he saw Mrs Nguyen speak to the Boarder, the Victim and an Associate who had come to the bank in their car and waited while they dealt with the bank. He did not speak to these men, other than perhaps to greet them and some small talk.
[29] He said that he did not want anything to do with the Victim’s dealings and that he “was prepared to help [Mrs Nguyen] go to the Bank but I did not want to know anything more at that time”. He also said that he did not speak to Mr Nguyen about the visit to the bank because Mrs Nguyen had told him not to.

The Associate’s evidence

[30] The Associate, who had allegedly gone to the bank with the Victim and the Boarder, said that he went with the Boarder and the Victim to the bank and that they waited there while Mrs Nguyen tried to borrow money to give to them.

The Boarder’s interview

[31] We were provided with the transcript of the Boarder’s police interview. In that interview, the Boarder said that he had borrowed money from a blind women to give to Mr and Mrs Nguyen so that they could bring their son out from Vietnam. He said that they had borrowed $30,000 from the bank to pay the money back but did not do so. He had paid $10,000 back from his own money and had kept asking for the money but they had not paid him. He had, however, only gone over to Mrs Nguyen’s house once since the trial.
[32] The Boarder also spoke in his interview of going to the bank with Mrs Nguyen when Mr Nguyen was in prison. The Friend was also there but he said that the Victim was not there. The Boarder denied that that he ever demanded money from Mrs Nguyen as payment to make the court case go away.
[33] The Boarder said that Mr and Mrs Nguyen had asked him to say that he was the one who had assaulted the Victim because a conviction would affect Mr Nguyen’s residency application. He had refused. The Boarder denied writing the letter of 8 January to Mrs Nguyen.

The Victim’s evidence

[34] The Victim deposed that he never threatened or demanded money from Mrs Nguyen, that he had not spoken to her or the Boarder since the trial in June 2009, that he did not write the letter provided to the police on 8 January 2010 and that he had never been to the bank with her.

Is the evidence fresh?

[35] The evidence will only be fresh if Mrs Nguyen did not tell her husband about the alleged approach before his trial.
[36] Mrs Nguyen’s evidence is that she was frightened of the Victim, the Boarder and the Associate and that she did not tell her husband of the alleged blackmail attempt. She said also that she was concerned that, had she told her husband of the attempted blackmail, he would have come and started a fight with the alleged blackmailers, thus compromising his immigration situation.
[37] We do not accept this evidence. There seems no reason why the alleged extortionists would have told her to keep the matter from her husband. It is possible that they might have done so had they managed to extort money from her but they had been unsuccessful. One might have thought therefore that it was in their interests to make sure the husband was told in the hope that Mr and Mrs Nguyen jointly could have found money to give them.
[38] Another possible reason for asking Mr Ngyen not to tell her husband is that the alleged extortionists were scared of Mr Nguyen but, if that were the case, then they were taking a real risk threatening his wife. Mrs Nguyen also said in evidence before us that she was scared that the extortionists would find a way to harm her husband in prison (which is at odds with a suggestion that they were scared of Mr Nguyen).
[39] We also have difficulty with the notion that Mrs Nguyen did not immediately tell her husband of the alleged blackmail attempt before his trial, even if the extortionists had told her not to. It was, after all, an approach that could have led to the withdrawal of the charges. In those circumstances, we would have thought that Mrs Nguyen would have consulted her husband about other means of getting the money, including through possible refinancing of the jointly owned house or by approaching friends.
[40] We also note that the Friend, whose house Mr Nguyen was bailed to in Wellington, had come down to assist Mrs Nguyen when she went to the bank. We do not consider it credible to suggest that he would have mentioned nothing about the visit to Mr Nguyen, even if he had been asked not to mention it by Mrs Nguyen. Neither is it credible that he would have stood by asking no questions at all as to why she was paying the Victim or about her alleged conversation with the Victim, even though he thought Mrs Nguyen was scared of the Victim and his associates.
[41] In any event, Mrs Nguyen’s assertion that she was scared of the men, and therefore did not tell her husband about the blackmail attempt in 2008, sits uneasily with her actions when she allegedly received the letter in February this year. It is difficult to believe that, having held her tongue for so long about the alleged demands, she should immediately upon receiving the letter go to the police with it and tell her husband shortly afterwards.
[42] We did not find her explanation for this change of position credible, particularly as she did not actually know who the letter was from. This conclusion is reinforced by the contradictory evidence she gave as to the continued threats over the period and the fact that the she only mentioned for the first time the other two occasions money had allegedly had been demanded when challenged on this point.[5]

Is the evidence sufficiently credible?

[43] For many of the same reasons as we found the evidence not to be fresh, we do not find it sufficiently credible to be admitted on appeal. We also have difficulty believing that the money borrowed in early June was all spent on doing repairs to the house after Mrs Nguyen’s husband was arrested and more difficulty in believing that the repairs were done by the Boarder.
[44] It does seem that there is a possibility that Mrs Nguyen paid another visit to the bank in the company of the Boarder and the Friend but we do not believe that this had anything to do with the charges against her husband.[6] We consider that Mrs Nguyen has included within her account of that bank visit an invented participation by the Victim.
[45] This appeal was first set down for hearing on 17 February 2010. An adjournment had to be granted on 11 February because of the alleged “fresh evidence.” In light of all the circumstances, it seems to us that it is more than coincidence that the letter should supposedly arrive and Mrs Nguyen should suddenly feel able to approach the police around the time Mr Nguyen’s appeal was first set down to be heard.

Effect of new evidence at trial

[46] We accept the Crown’s submission that, even if the evidence is admissible on appeal, it could not have affected the outcome at trial. None of the fresh evidence contradicts the Victim’s evidence in any material respect. The attempted extortion after all had much more chance of success if the Victim had been assaulted by Mr Nguyen.
[47] For the evidence to make any difference, it would have to be capable of raising a reasonable possibility that the Victim was not assaulted or at least that he was assaulted by someone else.

Given the medical evidence and despite Mr Nguyen’s attempts in the witness box to suggest an accident, it was never in any doubt that the Victim’s injuries had been inflicted in the course of a beating. It was never suggested that the Victim had been assaulted elsewhere or that there was anyone other than Mr Nguyen and the Boarder who had been in the house at the relevant time.

[48] The Victim had consistently identified, as his assailants, Mr Nguyen and the Boarder, his alleged accomplice in the blackmail attempt. Although in evidence at trial the Victim could not say that the Boarder had also assaulted him, he refused to be shaken on his testimony that the Boarder had been in the room. This clearly weakens any suggestion that the Boarder and the Victim were conspiring together.

Result

[49] The application to adduce new evidence is declined and the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] We have used these identifiers to avoid confusion arising from the similarity of the names of the various participants. No disrespect is intended.
[2] Bain v R [2007] UKPC 33; (2007) 23 CRNZ 71 (PC) at [34].
[3] Bain v R at [103].

[4] The interpreter commented before translating this that “this doesn’t make sense but this is exactly what she said”.
[5] See above at [23]–[25].
[6] See above at [32].

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