THE QUEEN v. NGUYEN VAN HEIP

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. The applicant who was convicted after trial before Hooper J. and a jury of murder applied for and was refused leave by this court to appeal against that conviction. We now give our reasons.

2. The first ground of appeal was as follows:

"The [applicant] was materially prejudiced because the learned Trial Judge refused to order a new  trial after the applicant had dismissed his Counsel and the replacement Counsel, Mr. Michael Poll, indicated to the Judge that he was unhappy in having to take over in a part-heard trial when important Crown witnesses had already given their evidence."

 

3. What happened was this. On 26 February last year after the statements of two witnesses had been read to the jury and the deceased's wife had given evidence followed by another witness, one Nguyen Tiet-nghi, who was in the process of being cross-examined by defence counsel, the applicant informed the judge that he wished to discharge his counsel and engage another. The trial was then adjourned to enable the Director of Legal Aid to arrange for fresh representation for the applicant.

4. When the court reconvened on 28 February the applicant's new counsel discovered that he was acquainted with one of the jurors. The trial was adjourned once more to enable the Director of Legal Aid to instruct another counsel to represent the applicant.

5. On the afternoon of the following day, Mr Poll, who was the counsel appointed to conduct the applicant's defence, informed the judge that after he had taken instructions from his client he might apply to the judge to discharge the jury and commence the trial afresh before another jury.

6. On 2 March when the court reconvened Mr Poll sought and was granted an adjournment until 5 March. On the resumption of proceedings on 5 March Mr Poll formally applied for an order that the jury be discharged and that there be a new trial. He said "I am asking for the retrial because I cannot possibly address a jury on the evidence and credibility of the key witness [Nguyen Tiet-nghi] who I have not heard." He also observed that nine days had elapsed since the withdrawal of the applicant's original counsel and submitted that in such circumstances, although the jury had been given a strict warning not to discuss the case other than among themselves, "the chances of them not speaking to people about the case and what has happened must surely be very slim".

7. Counsel for the Crown opposed the application, and the judge, having heard full argument, ruled that the trial should proceed. In the event both witnesses who had previously given viva voce evidence were recalled for cross examination by Mr Poll.

8. Before us Mr Poll abandoned the principal submission he had made to the judge and presented his argument on two other grounds. The first was that although  at the commencement of the trial the judge had directed the jury not to discuss the case outside their own number, he had not repeated that direction to them when the applicant's first counsel had withdrawn. The second was that it had been disclosed to the judge at the time of the application for discharge of the jury that there had been publication of certain observations reported to have come from the Commissioner for Refugees, and of an article in a newspaper, both of which suggested that Vietnamese refugee camps are largely controlled by gangs who exert an inordinate influence over other refugees, the majority of whom are law abiding, mature and reliable people.

9. Mr Poll conceded that in his summing up the judge solemnly directed the jury to come to their verdict solely on the evidence and that they should ignore anything that they may have learned from sources outside the court such as newspaper reports or anything of that nature. He submitted however that this warning had been given too late and that the damage would have been done.

10. We do not think for one moment that there is any substance in these contentions. There is no justification whatever for supposing that the jury ignored or were unmindful of the judges directions to them. Indeed Mr Poll himself made no suggestion to the judge on 1 March that he should repeat his earlier direction to the jury, nor did he before or at the eventual recommencement of the trial ask that the jury be directed to disregard the articles about gangs in refugee camps. Furthermore, Mr Poll frankly accepted that whether or not a jury should be discharged and a fresh trial ordered is a matter for the discretion of the trial judge and that it is a discretion with which this court will not lightly interfere. We do not think that on the material placed before us we would be justified in taking that unusual course. This ground of appeal must fail.

11. Before turning to the second ground of appeal it is convenient to refer to the most significant aspects of the evidence. The deceased's wife, who was the first prosecution witness to give viva voce evidence, testified that she and her husband operated a stall adjacent to that operated by the applicant at the Shamshuipo refugee camp. At about 4.30 p.m. on 12 June 1989 a dispute arose between the two men over the right to occupy a certain space. Strong words were exchanged following which the applicant seized hold of a chair and struck the deceased on the face and knee. Other persons then joined the fight. At this point the witness was kicked in the abdomen, and the next thing she was aware of was that the fight had broken up and that all the participants had dispersed. She and her husband attended hospital and were discharged soon afterwards.

12. On their return to the camp the deceased took up a metal wall prop from his stall and, accompanied by his wife, went looking for the applicant in his hut. Unable to find him they returned to their stall where, after the deceased had calmed down, the witness took the prop and threw it into a dustbin in order to prevent him from using it in a fight.

13. They remained at the stall until about 1.35 a.m. when the witness went to feed one of her children. On her return some 15 minutes later she found that the deceased was no longer at the stall but was sitting near a gate adjacent to a guard post with wounds to his head, shoulder and right side.

14. When she reached him he was still conscious. He told her to find out the applicant's camp number and tell the police that he was the man who had chopped him. He also told her that he had been chopped while he was sitting and that because he could not run quickly he was chopped many times. This evidence was admitted in accordance with the decision of the House of Lords in R v. Andrews (1987) 84 Cr App R 383. Shortly after he had spoken to his wife the deceased went into a coma and was taken to hospital where he died on 8 July from his head wound.

15. Nguyen Tiet-nghi, the witness to whom we have already referred, testified that he operated a stall nearby those of the deceased and the applicant. At about 2 a.m. on 13 June he heard a shout from the deceased's stall, following which he saw the applicant run from it and pass 12 feet in front of him carrying a beef knife measuring about 2 feet in length and with a blade 2 inches wide. Some 2 seconds later the deceased emerged from his stall and ran towards the guard box. The witness described the lighting as adequate and said that he had known the applicant for about a month, during which time he was in the habit of passing his stall three or four times daily.

16. The police conducted a search for the applicant at the camp during the course of the day of the fatal incident but were unable to find him. It was not until 8 July that they finally located him at a house in Hung Shui Kiu, Yuen Long. On being approached by the officers the applicant turned and ran, but was caught and, after a struggle, subdued.

17. The applicant elected to give evidence. His version of the incident that occurred on the afternoon of 12 June was very different from that given by the deceased's wife. According to him the deceased had chased him with a knife 18 inches long after he had complained to the deceased about dirty water and garbage flowing from the deceased's stall towards his stall. When he hurriedly took up a stool to protect himself, the deceased abandoned the knife and also seized hold of a stool. A struggle ensued which eventually broke up on the intervention of a third party.

18. Following this incident the applicant, fearing that the police might come to arrest him and that the deceased might attack him again, decided to go to Pillar Point camp and hide. He said that he arrived there at about 6 p.m. and that he met a Mr Dam Van-cuong and stayed with him for about 3 days. He denied that he had attempted to run from the police or that he had struggled with them on 8 July.

19. Mr Dam, who had been a friend of the applicant in Vietnam, supported his alibi. He testified that he had met the applicant at Pillar Point camp and that the applicant had told him he was angry with his wife. According to Mr Dam the applicant stayed with him until about 11 a.m. the following day, that during the evening of the 12th they remained in each others company drinking, and that they went to bed at about 10 or 10.30 p.m. and slept next to each other. The next morning they rose and had breakfast together.

20. Another defence witness, Nguyen Chi-hau, testified that on the night of the fatal attack he heard a noise from the deceased's stall and, on running over there, saw a very big man, who was not the applicant, running with a knife. He then saw the deceased, his back covered in blood, go to the guard post and collapse.

21. A prosecution witness, who turned hostile, testified that on that night he had woken feeling thirsty and that, on going outside to have a drink, heard a loud noise and saw a man, who was not the applicant, 1.6 metres tall holding a knife and ,that the deceased was sitting on the ground. Later at an identification parade he identified the applicant. At the trial, however, he asserted that he had merely identified him as a person living at the camp. There were other witnesses but we do not think it is necessary to refer to their testimony.

22. The second ground of appeal was:

"The learned trial judge failed to direct the jury that even if they believed that the defendant was seen holding a knife and running away from the scene of the attack, they still had to go further and find that it was on an irresitible inference that he was the actual attacker or was part of a joint enterprise. This omission was crucial since 2 defence witnesses gave evidence that they saw a man run away from the scene who was not the defendant."

 

23. This was a case of murder or nothing and the judge, as Mr Poll frankly conceded, fully and fairly reminded the jury of all the relevant evidence. In our view there was no obligation on him to give any direction such as that contended for. He made it plain to the jury that it was for the Crown to prove the case against the applicant beyond reasonable doubt and that this meant that they had to be sure of his guilt before they convicted him. He directed them that murder was the unlawful killing of another with intent to kill or to cause really serious bodily harm, that such intent was necessary at the time of striking the fatal blow, that they had to be sure it was the applicant who struck that blow and that at the time he did so he had the intention to kill or at least cause really serious bodily injury. He told them that the only issue in the case was that of identification. In that connexion he posed the question "Was the defendant the person who murdered the deceased." We are entirely satisfied that the judge's directions correctly and adequately dealt with the issue which the jury had to determine.

24. Mr Poll also directed our attention to grounds which the applicant himself had drafted. These were concerned with various aspects of the evidence that Mr Poll readily conceded were fairly dealt with by the judge during the course of his summing up. We were unable to find any substance in any of the grounds of appeal. In our opinion the conviction was both safe and satisfactory.