Van Le, R. v [2010] EWCA Crim 794

[2010] EWCA Crim 794

Case No 200804806/B3-200804804/B3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 28th January 2010

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE LAWS

MR JUSTICE BEATSON

MR JUSTICE BLAKE

Between

R E G I N ACrown

Between

CONG VAN LE

QUYNH VAN HUYNH

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Mr B Lett QC appeared for Appellant Huynh

Mr M Evans QC appeared for Crown

J U D G M E N T

LORD JUSTICE LAWS:

[1]On 1st August 2008 before McKinnon J at the Cardiff Crown Court, this appellant was convicted by the jury, by a majority of 10 to 2, of an offence of manslaughter. That had been left to the jury as an alternative to the charge of murder which was raised in count 1 of the indictment. On 11th August 2008 the appellant was sentenced to 9 years' imprisonment. 545 days spent in custody on remand were directed to count towards sentence.

[2]The appellant was jointly charged on count 1 with murder, along with five others, Bac, Phoung Nguyen, Son, Van Nhu, Paul Adrian Harrison, Thanh Van Le and Cong Van Le. Bac, Son and Harrison were acquitted of murder and manslaughter and of attempting to cause grievous bodily harm with intent, which had been left to the jury as a further alternative. Thanh Van Le and Cong Van Le were convicted of manslaughter, along with the appellant, and sentenced to 7 years' imprisonment. They had sought to appeal their convictions along with the appellant and Thanh, who for his part had also sought leave to appeal against sentence. However, Thanh has been repatriated to Vietnam and formally abandoned all proceedings in this court. As for Cong, the court has information from the prison that he was in December 2009 transferred to a holding centre and thence also taken to Vietnam, from which he originates, though we have had no formal documentation to that effect. We propose to dismiss Cong's appeal, as he is not here to pursue it. In the very unlikely event that he would seek to re-open his appeal, then in light of the conclusions to which we have come in Huynh's case, that application might well be favourably received.

[3]Two further defendants were originally charged with the murder, Khai Van Tran and Ian Hoang Cai. They fell out of the picture in different ways and it is unnecessary to describe the procedures in relation to them.

[4]The appellant now appeals against conviction by leave of the single judge. The following account of the facts will generally suffice for the purposes of the appeal, which in the end, as we shall show, turns only on one point. At approximate 2.00 pm on Monday 20th November 2006 an unnamed man was carried into the accident and emergency department at the Royal Gwent Hospital in Newport by two men of east Asian origin. They immediately left the hospital grounds. The injured man was unconscious, struggling to breathe. A CT scan revealed serious brain injury. Medical professionals considered him to be beyond medical assistance. He was pronounced dead at 22.10 hours the same day. It was accepted at trial, there being CCTV evidence, that the men who had brought him to the hospital were Bac and Tan Cai.

[5]A postmortem revealed extensive bruising and abrasions over the whole of the dead man's head and body. He had been very badly beaten. There were many signs of serious trauma and head injury. The pathologist, Dr Leadbetter, concluded that death had been caused by a subdural hemorrhage occasioned by blunt trauma to the head.

[6]At length the deceased was identified as Tran Nguyen, to whom we shall refer as "Tran", born on 5th February 1962. He was an illegal immigrant from Vietnam. Before his death he had been employed as a "farmer", tending the crop at a cannabis factory in premises at 40 Keynsham Avenue, Newport. His boss there was a man called Le Mingh Tu (we will call him simply "Tu"). Tu and Tan Cai organised a cannabis operation in Newport. At the time of Tran's death they were living with Tu's wife at a flat in Cardiff Road not far from Keynsham Avenue.

[7]After the death Tu fled the country and at the time of the trial was back in Vietnam. His wife however remained in England and she was subsequently arrested in connection with the death. She gave evidence however for the Crown at the trial, by which time she was herself serving a 12-month prison sentence and awaiting deportation having pleaded guilty to offences of perverting the course of justice and money laundering.

[8]Bac was also a farmer, though at a different cannabis factory in Newport. On 16th November 2006 he visited Tran at 40 Keynsham Avenue. They had a meal together. Bac stayed at the address overnight. In the early hours of the next day, Bac and Tran reported by telephone to Tu and Tan Cai that some men had entered the premises during the night, bound them up at knife point and stolen the cannabis crop. The two of them, Bac and Tran, were taken to Flat 6, 29 Cardiff Road by Tu and Tan Cai. That is where Tu was living. Tran and (it seems to a lesser extent) Bac were suspected of being complicit with the robbers they had described.

[9]On the morning of 19th November Tu, Tan Cai, Bac and Tran went by car to 100 New Road, Bedfont, a place near Heathrow Airport. It was the address of yet another cannabis factory, managed by Khai (also known as Khang) and the man, Son. Son opened up the premises to admit them at Tu's request. Whether Tran realised it or not, he was from then on a prisoner at that place. Over the next few hours the appellant and co-accused and some others came and went to the address, until late in the evening and then Tran was taken back to Newport by car. Bac was dropped off near his home address. Tran was returned to Flat 6, 29 Cardiff Road. It was from there that he was to be taken to the hospital the following afternoon.

[10]The prosecution case was that the killing of Tran happened against the background of a large scale commercial cannabis cultivation operation of which Huynh (the appellant) who was Tan Cai's uncle, was the principal operator. The Crown said that it was on his orders that the deceased was taken to London to be interrogated about his complicity in the robbery or alleged robbery of the cannabis crop. The Crown's position was largely based on an account given in interview with the police by Bac, who also gave evidence. It was the Crown's contention that Bac's evidence had within it, as it was put, "an essential core of truth as to what happened at 100 New Road."

[11]It was alleged that Tran was held in the main upstairs bedroom at that address, guarded by Son, and over the next few hours was subjected to interrogation and serious assault by various people coming and going to and from the address. It was said he was first interrogated and assaulted by Thanh Van Le, who is referred to in the summing-up as "Toan" (he was Tu's brother) and also by Cong Van Le (Cong) who had previously worked as another farmer for Tu. The Crown said that Huynh then arrived at the address, together with Harrison. Harrison was 6 foot 9 tall. He was a hired heavy, as it was put. He weighed 20 stone. The Crown case was that he inflicted serious violence on Tran, under the directions or at the encouragement of Huynh whilst Huynh was interrogating Tran. The Crown alleged that after Huynh and Harrison left, the deceased was interrogated and assaulted some more (this time by Tu) and by others who were not apprehended, and by Toan. Later that evening, when his condition began to cause concern, he was taken back to Newport.

[12]The Crown said that the injury causing the subdural haemorrhage which led to Tran's death occurred at 100 New Road on 19th November. They claimed that the prolonged violence which happened there during that day was part of an overall joint attack in which the appellant and others played their respective parts. Each of those present was a willing party to a common design to assault the deceased. Each took part in the assault or else was responsible for such matters as transporting or guarding Tran in the knowledge or furtherance of the overall plan and knowing that really serious harm might by inflicted. Nobody was there by chance. It did not matter that the appellant and others who had not been apprehended came and went at somewhat different times.

[13]The Crown's case against the man, Bac, was that he was involved in assisting in the transport and guarding of Tran, knowing that others might use serious violence against him. As for Toan, the Crown said that he was involved in the cannabis operation and knew, by at least 18th November, that Tu was bringing the deceased up to London. On 19th November he took part in the joint plan by committing grave assaults on Tran himself, and together with Cong and Khai and later with two others called Lan and Bao. Son opened up 100 New Road on 19th November at Tu's request. The Crown said he knew that he was there to guard Tran, and did so knowing full well that Tran was being subjected to serious violence. So he too was part of the joint plan. He had joined in the attack by questioning Tran, while he was being assaulted, and on some evidence in the case had himself actually assaulted him.

[14]As for Cong, the Crown said that like Toan he knew in advance that Tran was being brought to London, and went to 100 New Road knowing that Tran was to be questioned there. He must have known perfectly well that there was going to be serious violence. He joined in that violence at 100 New Road.

[15]Coming to the appellant, Huynh, the Crown alleged that he was the one who had orchestrated the whole plan. He was contacted (following the Keynsham Road robbery) by Tu and Tan Cai, and after that he made repeated efforts to contact the heavy man Harrison. He instructed Harrison to apply violence to Tran. He did so by nods and hand signals and so forth and in all this, said the Crown, he must have intended that really serious physical harm come to Tran.

[16]As for Harrison, the Crown said he was hired by Huynh to assault Tran and went to the address solely for that purpose. He inflicted serious violence on Tran which may well have caused the fatal injury, though that has not proved beyond peradventure. At any rate he must have intended really serious harm.

[17]There was a common defence run by all the co-accused. It was to the effect that the Crown had failed to prove that the injury causing the fatal hemorrhage had been inflicted at the New Road address on 19th November.

[18]The Crown pathologist, Dr Leadbetter, gave evidence that the subdural haemorrhage could have occurred up to and perhaps even before 72 hours prior to the death. It had occurred at least 12 hours before the death. This evidence did not exclude the possibility that the fatal injury had been sustained either during the robbery at Keynsham Road on 17th November, or after the deceased was taken back to Flat 6, Cardiff Road in Newport on the night of 19th November. The co-accused and the appellant relied upon the pathologist's evidence that he had identified bruising at least 72 hours old. They relied also on Bac's account of the Keynsham Road robbery and of what Tran had told him happened to him in the course of that robbery. They relied on this material to support the proposition that the robbery, rather than the later incidents at New Road, was the true scene of the jury causing subdural haemorrhage.

[19]We very briefly summarise individual cases put forward by the defence. Bac said he had been at 100 New Road out of fear, was not party to any joint plan and inflicted no violence. Toan said he had gone there out of curiosity and slapped Tran lightly four times. It was not part of any joint plan. He had no idea that there would be serious injury. Son's case was that he had opened up the premises at 100 New Road at Tu's request but he was not a willing party to any concerted plan to detain or assault Tran. Cong said that like Toan, he went to 100 New Road out of curiosity and also slapped Cong twice, only gently. He had neither anticipated nor taken part in any serious violence.

[20]Harrison's case was that he went there with Huynh as what he called a "presence", whilst Huynh conducted some business which Harrison thought was about a debt. He and Huynh were present in the room for a short period only. He was not party to any plan to assault the deceased. He inflicted no violence.

[21]Huynh did not give evidence in his own defence at the trial. He relied on Harrison's denial in evidence as to the use of any violence. He said that Tu was the boss and that Bac, Son, Cong and Toan were conspiring to implicate himself and Harrison in order to protect themselves and Tu. Huynh and Harrison relied on what the judge referred to as the "Hoang/ Wong" point. That was a reference in Bac's interview to a discussion in which he, Bac, claimed that Tu had said that whoever was arrested first should deflect blame from him and themselves by telling the police that persons called Hoang and Wong were Tran's bosses. It was part of Huynh and Harrison's case that this demonstrated a determination by Tu to pervert the course of justice.

[22]There is a single ground of appeal. It is to the effect that at an extremely late stage, after the jury had been in retirement for several days, the judge gave them a new direction concerning the defendants, Harrison and Huynh, which represented a volte fase compared with his earlier directions in the summing-up. It arises in the following way. Before counsel's closing speeches the judge heard submissions as to the directions he should give on murder, manslaughter and attempt to cause grievous bodily harm. The Crown's case was that the judge should only leave the murder charge to the jury. The judge had prepared three written versions of his proposed directions. After hearing argument, he indicated that he had settled on version 3, and we understand that the direction he gave in the summing-up, to which we will come in a moment, reflected that version. In consequence of the discussions between counsel and the jury, the jury were addressed in counsel's speeches upon the footing that if they could not be sure that the fatal injury was inflicted on the deceased during the time that Huynh was at 100 New Road with Harrison, they should acquit both Huynh and Harrison on count 1. On the first day of the summing-up, 23rd July 2008, the learned trial judge directed the jury as follows:

"...the crown says that Quynh instructed Paul Harrison to treat Tran with violence and the instruction consisted of nods and hand signals. Quynh is silent on the matter but relies on Paul Harrison's account, that Paul Harrison used no violence and was not instructed by Quynh to use violence. If Paul Harrison's account is true or may be true, then Quynh is not guilty of anything because you would then not be sure that violence was used by Paul Harrison or, indeed instructed by Quynh."

Then at 25A - B there is this critical passage:

"You only convict Quynh of murder if you have already convicted Paul Harrison of murder. Thus, if you find Paul Harrison not guilty of murder you must acquit Quynh of murder and if you reject murder then, again, you can only convict Quynh of manslaughter if you have already convicted Paul Harrison of manslaughter."

[23]On the second day of the summing-up, at the end, just before the jury retired, counsel for Harrison submitted a written argument inviting the judge to alter the directions we have just set out. Counsel submitted that it would be possible and proper in certain circumstances for the jury to convict Huynh while acquitting Harrison. The judge rejected that submission (see summing-up transcript 134C - 136B). It had not been supported by the prosecution. Indeed, as we have said, the Crown had in fact resisted the proposal to leave verdicts alternative to murder on count 1. Their case always was that the subdural haemorrhage causing the death was the result of the beating by Harrison, as directed by Huynh. The summing-up contains a number of references to Huynh's role in instructing Harrison (see 14C and 18C - E). So the suggestion that Huynh might be convicted where Harrison was acquitted was against the grain of the summing-up and contrary to the specific directions at 25A - B which we have set out above.

[24]The jury retired in the afternoon of 24th July 2008. That was the second day of the summing-up. They continued their deliberations on 25th and 28th July -- there must have been a weekend intervening. After a jury note dealing with voting figures on 28th July the judge gave them a majority direction, shortly after 1.00 pm that day, 28th July. The signs from the transcript are that the judge seems to have expected a verdict quite shortly thereafter. But none was forthcoming on that day and the jury were sent home just after 4.15. The next day, 29th July, one of the jurors was sick, so the jury resumed their deliberations on 30th July. At 11.10 am that day a note was received from the jury. It read:

"Some jurors feel that the suggestion of Harrison's guilt equalling Vin's guilt [that is the appellant Huynh] can be applied in reverse. That is, that Vin can be considered guilty without Harrison also being considered as such. Please clarify on this point?"

The judge heard argument. Counsel for Huynh, not surprisingly, urged him to stand by his earlier direction. Counsel for Harrison suggested a form of words that would have reflected what the jury seemed to be suggesting. Counsel for the Crown submitted that the jury should be told that they had to look at the evidence against each defendant separately, and reach separate verdicts (see summing-up transcript 148D - E). The judge considered the submissions and produced a draft further direction, which he discussed with counsel. Despite protests by counsel for Huynh, the judge proceeded to direct the jury in line with his draft. This is what he said:

"I directed you, in my summing-up, that you could not find Quynh guilty of murder unless you had already found Paul Harrison guilty of murder and the same, I said, applied to manslaughter. Namely, that you could not find Quynh guilty of manslaughter unless you had already found Paul Harrison guilty of manslaughter. However, at the end of the day, the evidence is for you and your conclusions from it are for you. You consider each defendant separately and you bring in separate verdicts in respect of each defendant and just because you find one defendant, say Paul Harrison, guilty of murder does not mean that you find another defendant, say Quynh, guilty of murder. You consider them and the evidence against and for them separately. What you are asking, really, is whether, if you find Paul Harrison not guilty of murder, you are then bound to find Quynh also not guilty of murder. The answer to that is a clear one. Earlier, I said that the answer should be 'Yes'. I wish to correct that now by saying that you consider the cases against and for Quynh and Paul Harrison entirely separately and, having done that, your verdict on one is not interdependent on your verdict on the other. So, you could find Paul Harrison not guilty of murder but find Quynh guilty of murder. So, the fact that you found Paul Harrison not guilty of murder does not mean that Quynh is automatically not guilty of murder. You have to consider Quynh separately, just as you consider Paul Harrison separately and the same applies visa versa or, to use the words of your note, 'in reverse'. So the verdict on each defendant is independent of your verdicts on the other."

[25]It is no exaggeration to say that this was a volte fase in comparison with the judge's earlier direction. The earlier direction was to the effect, as we have seen, that the evidence would only justify Huynh's conviction if it justified Harrison's conviction, essentially for the reason given by the judge in the summing-up at 24F. We repeat it for convenience:

"If Paul Harrison's account is true or may be true, then Quynh is not guilty of anything because you would then not be sure that violence was used by Paul Harrison or, indeed, instructed, by Quynh."

That is the basis on which the defence had been run. As we have said the appellant did not give evidence. This was the basis on which the case had been closed by counsel in their speeches to the jury; and the basis on which the jury were directed to consider the case when they retired and later received the majority direction. No factual basis was ever postulated in terms or exposed or explained before the jury, on which Harrison might properly be acquitted and Huynh convicted. No such basis therefore was tested by counsel in the course of argument. Yet the jury acquitted Harrison and convicted Huynh.

[26]The Crown submit (and we are indebted to Mr Evans QC for his assistance this morning) that there was indeed ample evidence against Huynh, which was not dependent on Harrison's guilt. We are very far from asserting the contrary. It may very well be that the original direction was overly favourable to Huynh as again the Crown have submitted. But the scenario in which Harrison might be acquitted and Hughes convicted, though it may well have been an available scenario on the evidence, was not examined or tested in the course of the adversarial procedures in which a common law criminal trial consists. We are in no position to say what the effect of carefully prepared submissions in closing the case might have been on the jury, if this further scenario was live in counsel's mind at the time he addressed the jury.

[27]In the result, we are driven to conclude that there was a want of due process here and the verdict has to be considered unsafe for that reason. We make it clear that no criticism whatever of the jury. They initiated the judge's change of mind by their note, perhaps because they perceived that there was indeed another way of looking at the case. But it was a way of looking at the case which, as we have said, had not been subjected to the discipline of the adversarial procedures of a proper trial.

[28]In those circumstances it is our duty to allow this appeal against conviction, and we do so.

LORD JUSTICE LAWS: Are there no applications?

[30]MR EVANS: In the circumstances of this case it seems to me that on purely practical grounds it would be impossible to conduct this trial again.

LORD JUSTICE LAWS: I see.

[32]MR EVANS: The witnesses are scattered. It would be very difficult for the Crown to articulate a case on manslaughter, which is the only matter on which he could be tried.

LORD JUSTICE LAWS: Of course.

[34]MR EVANS: On the basis of available evidence.

LORD JUSTICE LAWS: Thank you Mr Evans.

[36]MR EVANS: I have no direct instructions but it seems to me to be impossible to recreate a trial.