COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Phung, 2012 ONCA 720
DATE: 20121029
DOCKET: C47986
Doherty, Hoy and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Quang Nguyen Phung
Appellant
Peter B. Scully, David Butt and Maija Martin, for the appellant
James K. Stewart, for the respondent
Heard: September 18, 2012
On appeal from the conviction entered on May 26, 2007 by Justice Fred Graham of the Superior Court of Justice, sitting with a jury.
By the Court:
I. overview
[1] The appellant and Cong Tran were charged with one count of first degree murder and one count of attempted murder. Both charges arose out of the same events.
[2] It was the Crown’s theory at trial that the appellant and Cong Tran, who were drug dealers, had arranged to purchase two kilograms of cocaine from the deceased and that at some point before the three men met to consummate the transaction, the appellant and the co-accused decided to steal the deceased’s cocaine and murder him. The Crown alleged that the appellant was the shooter. Ms. Le, the other victim, was the deceased’s girlfriend. She was also shot but survived. The Crown did not allege that Ms. Le had anything to do with the drug transaction. On the Crown’s theory, she was shot because she was potentially a witness against the appellant and the co-accused. She was very much in the wrong place at the wrong time.
[3] The appellant did not testify. At trial, he argued that the Crown had not proved that he was at the scene of the murder. Alternatively, the appellant argued that the evidence relied on by the Crown demonstrated that the person who was outside of the vehicle had fired the gun. On the Crown’s theory, the appellant was the driver of the vehicle.
[4] The co-accused, Cong Tran, did testify. He testified that the appellant had arranged to purchase cocaine from the deceased. According to Cong Tran, there was no plan to kill the deceased and steal his drugs. On Cong Tran’s evidence, the appellant acted on his own when he shot the deceased and Ms. Le. Cong Tran insisted that he had no idea that the appellant intended to shoot anyone and that the shootings came as a total surprise to him.
[5] Following a jury trial that spanned almost 20 months, the appellant was found guilty of first degree murder and attempted murder. Cong Tran was acquitted on both counts.
II. grounds of appeal
[6] The appellant argues that the trial judge made three errors, each of which warrants quashing his convictions and ordering a new trial:
(1) The trial judge denied the appellant an adjournment and forced the appellant to proceed unrepresented after he discharged counsel;
(2) The trial judge did not put the appellant’s theory that Cong Tran killed the deceased in retaliation for the recent stabbing of Cong’s brother to the jury because it lacked an “air of reality”; and
(3) The trial judge left speculative evidence of planning and deliberation with the jury.
III. evidence review
[7] On April 25, 2003, the appellant and Cong Tran picked up Peter Tran and his girlfriend, Emily Le, in Toronto in Cong Tran’s car. Cong Tran was driving. Cong Tran testified that he, the appellant and the deceased were involved in a drug transaction: the appellant had arranged to buy two kilograms of cocaine from the deceased. Ms. Le was just getting a ride home. The deceased placed the cocaine in the trunk and the four departed together. They headed towards Richmond Hill.
[8] While in the car, there was some discussion about the fact that Cong Tran’s brother, Thuan Tran, had been stabbed less than a week earlier. Cong Tran missed Ms. Le’s exit off the highway, but they did not turn back. They instead got off the highway in a secluded area unfamiliar to the deceased and Ms. Le, at Gamble Road and Bathurst Street in the town of Richmond Hill. Cong Tran, the deceased and Ms. Le got out of the car, and the appellant took over the wheel. The appellant left in the car to get something at his uncle’s nearby house. Both Ms. Le and Cong Tran’s evidence was that, after the appellant had been gone some time, Cong Tran called the appellant to see what was taking so long. The Crown’s theory was that the appellant went to get his handgun. It was known that he had a gun: both a friend of the appellant and Cong Tran testified that they had seen the appellant with a gun in the weeks before the murder.
[9] Cong Tran testified that when the appellant returned, the appellant shot the deceased and Ms. Le with a handgun from the car. In a statement to the police, Ms. Le identified the appellant as the shooter.
[10] After the shooting, Cong Tran quickly got into the car, and he and the appellant drove off.
[11] The deceased and Ms. Le managed to get to a nearby house. One of the occupants had just heard a car pull up, argumentative voices, someone yell “fuck you, motherfucker” and/or “you’ll pay for it you motherfucker” and then five gunshots. The occupants tried to help the victims until the ambulance arrived.
[12] Each of the victims sustained two gunshot wounds. The deceased succumbed to his injuries. Ms. Le survived.
[13] Two days later, on April 27, 2003, the appellant and Cong Tran flew to Vancouver. They were accompanied by their girlfriends and Cong Tran’s brother, Thuan. They had bought one-way tickets that morning, and only some of them carried luggage. The appellant was apprehended by the police in Vancouver on May 4, 2003.
[14] In a May 6, 2003 interview with the police submitted at trial, the appellant said that he was with his girlfriend on the night of April 25, 2003. However, that night, he received a call on one of his two cell phones, which was routed through a cell tower near the scene of the crime and not near his girlfriend’s.
[15] Cell phone records showed that the appellant, Cong Tran and the deceased had all been in extensive contact with one another in the days leading up to, as well as on the day of, the shooting.
IV. analysis
issue #1: did the trial judge err in refusing an adjournment and requiring the appellant to proceed without counsel?
[16] This ground of appeal raises two distinct but related issues. First, did the trial judge err in the exercise of his discretion when he refused to grant the appellant an adjournment to retain new counsel? Second, even if the trial judge did not err in refusing the adjournment, did the appellant, who proceeded without counsel, receive a fair trial?
[17] The first question examines the exercise of the trial judge’s discretion in the context of the circumstances presented when the adjournment request was made. The second question looks back on the conduct of the trial after the refusal of the adjournment and asks whether despite the absence of counsel, the appellant received a fair trial.
The first question: the exercise of the trial judge’s discretion
(1) The context
[18] The trial began on January 9, 2006. The appellant was represented by Mr. Sack. Pre-trial motions were complete by mid-February of 2006. The appellant and Cong Tran were put in the charge of the jury on March 1, 2006.
[19] A lengthy voir dire was held as to the admissibility of certain statements Ms. Le made to the police. On or about May 2, 2006, members of the appellant’s family contacted lawyers in an effort to retain other counsel for him.
[20] On May 9, 2006, the trial judge ruled that the statement in which Ms. Le identified the appellant as the shooter was admissible. On or about that date, the appellant spoke with a lawyer, Ms. Shemesh, about retaining her as counsel. Ms. Shemesh told the appellant that he would have to speak to legal aid for permission to change counsel, and that he would have to discharge his current counsel in order to retain her. Ms. Shemesh was aware that the appellant had contacted other counsel.
[21] On May 11, 2006, the appellant and Cong Tran applied for a mistrial based upon the submission that a prospective seven-week adjournment of the trial between July and September to accommodate the jurors’ schedules would be unfair.
[22] On May 15, 2006, the trial judge dismissed the mistrial application.
[23] On May 16, 2006, the appellant discharged Mr. Sack and requested an adjournment to seek new counsel. The matter was adjourned two days to May 18, 2006, at which point Mr. Reid, who acted as counsel for the appellant with respect to the adjournment application, advised that the appellant’s new counsel of choice, Mr. Reid`s colleague Dirk Derstine, was prepared to represent the appellant at trial and would be available starting mid-October.
[24] At the voir dire to determine if the adjournment should be granted, two court officers testified. The evidence of the first was that on May 15, 2006, while she was removing the appellant’s shackles, she heard him say: “I have to get this judge off the panel.” The appellant then asked her: “[I]f I fire a lawyer will I get a mistrial?” or “what happens if I fire my lawyer?” She told him: “I don’t believe you’ll get a mistrial, you might get a delay.”
[25] The second court officer testified that the appellant asked her if firing his lawyer would get a mistrial.
[26] On May 24, 2006, after hearing evidence and argument, the trial judge dismissed the adjournment application. The trial judge strongly recommended to the appellant that the appellant continue to retain Mr. Sack, whom the judge observed had “conducted himself at all times to the benefit of [the appellant] and effectively and with vigour.” The following day, the trial judge again invited the appellant to re-visit his decision to discharge Mr. Sack. The appellant declined to do so.
(2) The trial judge’s ruling
[27] In his reasons, the trial judge found, at paras. 56-57, that the evidence of the court security officers was reliable and credible, and clearly supported an inference that the appellant’s discharge of his counsel and his request for an adjournment were motivated by an intent to delay and obstruct the trial process.
[28] The trial judge noted, at para. 58, that the effect of the requested adjournment might well be a mistrial:
It could reasonably be anticipated that a number of jurors would not be willing to accept a five-month hiatus in the trial and, in addition, Mr. Phung could decide to retain counsel other than Mr. Derstine to apply for a mistrial based on a hiatus of that length. Such an application could certainly be expected from Mr. Tran, given that he applied for a mistrial based on seven-week hiatus.
[29] The trial judge dismissed the argument that the appellant’s inquiries of other counsel before May 16, 2006 showed that the appellant’s motive in dismissing counsel was not improper. The trial judge concluded, at para. 59, that “the chronology of the matter suggested otherwise.” The trial judge characterized the appellant, at para. 69, as attempting “to create an escape route in case the evidentiary ruling was not in his favour.” He noted the suspicious turn of events: it was only during the week that his decision regarding the admissibility of Ms. Le’s evidence was under reserve that the appellant’s family started looking for new counsel; the appellant spoke with Ms. Shemesh about the time that he delivered his ruling; the appellant applied for a mistrial immediately after the admissibility ruling; soon after the mistrial application was dismissed, the appellant made his statements to the court security officers; and the next morning the appellant dismissed his counsel.
[30] The trial judge also observed, at para. 66, that if the appellant retained a different lawyer, come October, that lawyer would not be bound by Mr. Derstine’s position that mid-trial rulings would apply.
[31] At para. 70, the trial judge described the conduct of the appellant as “patent manipulation.”
(3) Analysis
[32] In our view, the trial judge did not err in the exercise of his discretion to deny the adjournment.
[33] The exercise of his discretion to deny the adjournment application was rooted in his finding that the appellant, in discharging counsel and seeking an adjournment to retain new counsel, was attempting to manipulate the process and delay the proceeding. In our view, that considered and pivotal finding is unassailable.
[34] Nor are we persuaded by the appellant’s argument that the trial judge erred in principle when he eventually, and then only gently, pressed the appellant for an explanation as to why he was dismissing counsel. The appellant submits that when seeking an adjournment an accused has no obligation to explain why he has dismissed counsel and that the trial judge improperly impinged upon solicitor-client privilege. Viewed in context, the trial judge was attempting to give the appellant the opportunity to rebut the clear inference that the appellant’s discharge of his counsel and his request for an adjournment were motivated by an intent to delay and obstruct the trial process, and to explore the possibility of a continued solicitor-client relationship as an alternative to the appellant representing himself. There was nothing improper about this.
The second question: did the appellant receive a fair trial?
[35] We also reject the appellant’s argument that the appellant did not receive a fair trial as a result of proceeding without counsel.
[36] With the consent of the appellant, Mr. Derstine and his colleague Mr. Reid were appointed as amicus to assist the court in fulfilling its duty to ensure that the appellant received a fair trial.
[37] The trial judge permitted amicus a wide scope, including permitting themto cross-examine witnesses at a voir dire. Amicus provided a great deal of help as the trial proceeded. At no point did the trial judge refuse to allow amicus to assist the appellant in the conduct of any facet of the trial.
[38] The trial judge observed that the appellant had been able to cross-examine effectively before the jury with the assistance of amicus. The trial judge instructed the jury that the appellant’s decision to represent himself, with the assistance of amicus, was not relevant in its deliberations.
[39] The appellant’s counsel does not point to anything in the trial record, for example the appellant’s closing address to the jury or a ruling by the trial judge, which in his view was deficient or would have been dealt with differently had the appellant been represented by counsel. The appellant has failed to demonstrate how his trial was unfair or appeared to be unfair because he represented himself.
issue #2: did the trial judge err in refusing to put to the jury the appellant’s claim that the co-accused killed the victim in retaliation for an attack on the co-accused’s brother?
[40] As outlined above, the appellant advanced two positions at trial. First, he argued that he was not present at the shooting and had nothing to do with it. Second, the appellant contended that the fatal shots were fired by the person who was outside of the vehicle and that on the Crown’s evidence, that person was the co-accused Cong Tran. The trial judge put both positions to the jury and summarized the evidence in support of those positions.
[41] Counsel on appeal submits that the trial judge wrongly told the jury that there was no evidence that Cong Tran shot the victim in retaliation for an earlier assault on Cong Tran’s brother. Counsel submits that the connection between the homicide and the earlier assault could be inferred from the evidence and could potentially provide powerful evidence to support the appellant’s position that Cong Tran shot and killed the victim.
[42] Counsel characterized this submission as one based on the failure to leave a defence that on the evidence had “an air of reality”. We think the claim is properly framed a little differently. The defence contention that Cong Tran, the person outside of the vehicle, fired the gun was clearly available on the totality of the evidence. The appellant was entitled to have any evidence or inferences from the evidence capable of supporting that position put to the jury. Evidence Cong Tran had a motive to kill the victim – the attack on his brother – could support the appellant’s position that Cong Tran was the shooter.
[43] The appellant was not, however, entitled to have speculative claims with no basis in the evidence marshalled by the trial judge in support of the defence position that Cong Tran was the shooter. We agree with the trial judge’s conclusion that there was no evidence connecting the shooting to the earlier assault on Cong Tran’s brother. Specifically, there was no evidence connecting the deceased to the earlier assault or more importantly suggesting Cong Tran believed that the deceased was in any way connected to the attack on his brother. In his evidence, Cong Tran specifically denied any such connection. While the jury was, of course, entitled to reject that evidence as untrue, rejection of Cong Tran’s denial of any connection between the homicide and his brother’s assault could not become positive evidence that a connection existed.
[44] The trial judge’s instruction was correct on the record before him and necessary to ensure that the jury would not engage in speculation invited by the defence questioning of Cong Tran.
issue #3: was there evidence capable of supporting a conviction on the charge of first degree murder?
[45] The Crown submitted at trial that the murder was planned and deliberate. The appellant and the co-accused unsuccessfully moved for a directed verdict on the charge of first degree murder at the end of the Crown’s case. The co-accused then testified and in the course of doing so identified the appellant as the killer.
[46] In the course of his detailed instructions, the trial judge left with the jury several pieces of evidence which he told them could be considered by them in determining whether the murder, if they found there to be murder, was planned and deliberate.
[47] Counsel for the appellant argues that the evidence left with the jury could not reasonably support the inference of planning and deliberation. He addresses each piece of evidence left with the jury and suggests inferences other than an inference of planning and deliberation. For example, counsel submits that some of the evidence supports an inference that the appellant and the co-accused had planned to rob the victim, but does not support the inference that they had planned to kill the victim. Crown counsel responds in kind explaining why each and every piece of evidence does potentially support the inference of planning and deliberation.
[48] We do not propose to review every piece of evidence and the inferences available from them. We are satisfied that the evidence left with the jury could, considered as a whole, reasonably support an inference of planning and deliberation. Stripped to its essentials, the evidence could support a finding that the murder was the product of a scheme devised by the appellant to lure the victim to an isolated place, shoot him in cold blood and steal his drugs. While there were no doubt other inferences potentially available from the evidence, the inference of planning and deliberation was reasonably available on the evidence. The trial judge properly left planning and deliberation with the jury. This ground of appeal cannot succeed.
V. DISPOSITION
[49] The appeal is accordingly dismissed.
Released: October 29, 2012 (“D.D.”)
“Doherty J.A.”
“Alexandra Hoy J.A.”
“S.E. Pepall J.A.”