The Queen v. Le Hong Phong

CACC000077/1989

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Coram: Hon. Silke, V-P, Kempster & Penlington, JJ.A.

Date of hearing: 26 June 1989

Date of delivery of judgment: 26 June 1989

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J U D G M E N T

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Penlington, J.A. delivered the judgment of the Court:

1. This is an application for leave to appeal against conviction on a charge of assault causing grievous bodily harm before Judge Evans in the District Court.

2. The complainant is a Vietnamese refugee, one Vu Phong Duyen (Vu) who together with the applicant was detained in the Shamshuipo Vietnamese Refugee Camp. At 0345 hours on the 22nd July, 1988, while not entirely asleep but resting on his bunk, he was attacked by two men and was seriously stabbed with a handmade knife by one of them who was identified by Vu as being the applicant. Vu was the only witness for the Crown in respect of the charges against the applicant and the other man who was also convicted. He has not applied for leave to appeal. The only question for the trial judge was one of identity. Both defendants denied any knowledge of the attack and gave evidence accordingly.

3. Vu's evidence was that although he was on his bunk, there were strong lights on and that he got a very good view of both of the men who attacked him, whom he knew, and was in no doubt that one of those men was the applicant.

4. There could be little to complain of in the trial judge's finding which was clearly a matter of fact for him but, unknown to prosecuting counsel, Vu had an appearance in the Magistrates Court on a charge of assault causing actual bodily harm. Vu was discharged but, with his consent, was placed on a $500 bond to be of good behaviour for 12 months. The Correctional Services Department's file relating to Vu also showed that on numerous occasions he had been before the officers in charge of the camp on various disciplinary charges, all of which however were clearly irrelevant to the question of his credibility. It is accepted that the appearance before the Magistrates Court should have been disclosed to defence counsel, but it was also accepted that Crown Counsel was not aware it.

5. Some months later Vu gave evidence in another case before the High Court and when cross-examined gave evidence relating to his record and his conduct in the camp which Crown Counsel considered was such that he could no longer put Vu forward as a witness of truth. That incident gave rise to the application which is now before us.

6. We do not consider ore can go closely into that matter before the High Court except to say that it discloses a somewhat confused situation in which Crown Counsel took a view which would seem to have been generous towards the accused on the basis that Vu had denied what was alleged to be previous misconduct.

7. We are of the view that the failure to disclose the appearance before the magistrate and the binding over was not a material irregularity. We do not consider that the District Court judge's decision to accept him, as he clearly did, as an honest and reliable witness would have been affected by that disclosure. This was a question of identity and very different from the facts in R v Paraskeva, (1983), 76, Crim.App.R. 162 where the defence was that there was no assault at all - one side or the other was lying. Here there was unquestionably an assault and the only question was whether Vu's identification of the applicant was reliable. It is also to be noted that the bindingover and Vu's appearances before the Correctional Services officers were not for offences in which his credit was in issue. The facts here are much more on all fours with R V Parks, (1962), 46, Crim.App.R. 29. There the question was also one of identity by a witness who had no less than eight undisclosed convictions for dishonesty. Even then the Court clearly was very reluctant to interfere - "the Court has felt very great doubt whether these convictions were really relevant to that issue" per Lord Parker L.C.J. at 33. Mr. Kynoch has also argued, at a later stage, that the defence, if aware of Vu's character could have called a witness, presumably from the Correctional Services Department, to say whether they would believe Vu as a witness of the truth. It is a course which is, to say the least, rare and we think it highly unlikely it would have been followed or that it would have had any influence on the trial judge. We also consider that the subsequent proceedings before the High Court, where clearly his credibility was in issue, cause us here to have no doubt as to the safety of this present conviction.

8. The application for leave to appeal against conviction is granted. We treat this hearing as the appeal which is, however, dismissed.

Representation:

James Kynock (D.L.A.) for Applicant

G.J. Lugar-Mawson, S.A.C.P., for Crown/Respondent