New & Notable: Sometimes it pays to tell your side of the story

Never get into a car with a stranger

Phung and Cong Tran were drug dealers.  They did a deal with Peter Tran, not related to Cong Tran, to buy two kilos of cocaine.  On the night of the deal, they picked him and the drugs up in Toronto and drove to Richmond Hill.  Peter Tran’s girlfriend, Emily Le, was along for the ride.  She should have stayed home; her boyfriend ended up dead and she was shot twice, but lived to tell the tale.


Cong Tran drove the foursome to Richmond Hill.  There was some talk in the car about the fact that his brother had been stabbed less than a week earlier.  Cong Tran missed the turn off to Ms. Le’s destination and the group ended up in a secluded area, unfamiliar to Peter Tran and Ms. Le.  Cong Tran, Peter Tran and Ms. Le got out of the car.  Phung took over the wheel and left, saying he had to go get something at a nearby uncle’s house.  He was gone for quite some time and Cong Tran eventually called him to question his whereabouts.


It seems the “something” was a gun because when Phung returned, according to Cong Tran and Ms. Le, he shot Peter Tran and Ms. Le.  Cong Tran then jumped into the car driven by Phung and both sped away.  Peter Tran and Ms. Le sought help at a nearby house whose residents had heard the shooting which was preceded by angry voices and someone yelling “fuck you, motherfucker” and/or “you’ll pay for it motherfucker.”  Ms. Le and Peter Tran were each shot twice.  Ms. Le survived.  Peter Tran was not so lucky.


Two days later, Phung and Cong Tran flew to Vancouver on one way tickets with little luggage.


Once apprehended by police a little over a week later, Phung offered his girlfriend as an alibi for the night of the murder but was foiled when his cell phone records placed him near the crime scene and far from his girlfriend’s.  Those same records confirmed that Phung had been in close contact with Cong Tran and Peter Tran in the days leading up to and including the killing.


Both Phung and Cong Tran were charged with first degree murder and attempted murder.  At trial, the Crown’s theory was that Phung and Cong Tran had hatched a plan to steal Peter Tran’s cocaine and murder him.  The Crown alleged that Phung was the shooter and that Ms. Le’s shooting was collateral damage. 


Phung didn’t testify at trial and argued that the Crown hadn’t proven that he was at the scene and that alternatively, he could not have been the shooter because the shooter was outside the car.  According to the evidence and on the Crown’s theory, he was the driver.  Cong Tran took a different, markedly more successful approach.  He testified and denied that there was a plan to rob or harm Peter Tran, only to buy drugs from him.  He insisted that Phung was acting on his own when he shot Peter Tran and Ms. Le and that Phung’s actions came as a complete surprise.  After a 20 month jury trial, Phung was convicted of both counts while Cong Tran was acquitted. Phung appealed: 2012 ONCA 720.


Loose lips sink ships...

On appeal Phung argued that the trial judge made three errors: first, that he denied an adjournment and forced Phung to proceed unrepresented after Phung discharged counsel; second, that he did not put Phung’s theory that Cong Tran killed Peter Tran in retaliation for the recent stabbing of Cong Tran’s brother to the jury; and third, that he left speculative evidence about planning and deliberation with the jury.


Regarding the first ground, the Court of Appeal held that the trial judge’s exercise of discretion in refusing to grant Phung an adjournment after Phung fired his lawyer was fine.  It was clear that Phung had engaged in “patent manipulation” of the trial process by seeking to derail it in order to avoid the consequences of pretrial rulings that were unfavourable to him.  Interestingly, the trial judge relied heavily on the testimony of two court officers who testified that Phung had commented that he “[had] to get this judge off the panel” and had asked the court officers repeatedly whether he would get a mistrial if he fired his lawyer.


The Court of Appeal also found that, despite not having had counsel, Phung received a fair trial.  Twoamicus counsel were appointed and they were permitted a wide scope in discharging their duty.  They provided a great deal of help and were allowed to assist Phung in his conduct of any part of the trial.  The trial judge commented that Phung was able to cross-examine witnesses effectively and he also instructed the jury that they were not to consider the fact that Phung had represented himself, with the assistance of amicus.


Just because you ask about it doesn’t mean it happened...

The second ground of appeal was that the trial judge erred when he told the jury that there was no evidence that Cong Tran shot Peter Tran in retaliation for the earlier stabbing of Cong Tran’s brother.  Phung’s appellate counsel argued that the connection between the homicide and the earlier stabbing could be inferred from the evidence and provided support for Phung’s position that Cong Tran shot and killed the victim. 


The Court of Appeal disagreed.  While Phung was entitled to have any evidence or inferences capable of supporting his position put to the jury, the fact was that there simply was neither evidence nor any inferences to be drawn.  There was no evidence to connect the shooting to the earlier assault on Cong Tran’s brother.  More importantly, when asked directly by Phung, Cong Tran specifically denied any belief that Peter Tran was connected in any way to what had happened to his brother.  As the Court of Appeal pointed out, even if the jury rejected Cong Tran’s evidence on this point, as they rightly might have since it was quite self-serving, the rejection of it does not provide positive evidence that the connection between the homicide and the earlier stabbing actually existed.


The trial judge was correct to instruct the jury on this lack of evidence because if he hadn’t, the jury might have engaged in the speculation invited by Phung’s questioning of Cong Tran about the possible connection between the homicide and his brother’s stabbing.


The whole is greater than the sum of its parts...       

With respect to the third ground of appeal, interestingly, while Phung wanted the jury to speculate as to Cong Tran’s possible motives for being the shooter, he was not comfortable with them speculating on other aspects of the evidence, including those that pointed towards him having planned and deliberated in order to murder Peter Tran.  Phung argued that the trial judge erred in leaving several pieces of evidence with the jury that he instructed could be considered in deciding whether the murder was planned or deliberate.


The Court of Appeal gave this short shrift:


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 [para 48].


In this decision, the Court of Appeal gives guidance and support to judges who seek to protect the process within their courtrooms while dealing fairly with unrepresented accused persons, even in the most serious of cases.  The Court also guides and supports judges who seek to avoid dumping the kitchen sink on juries by critically examining the evidence and the positions of the parties in determining what instructions should be given to those playing one of the most important roles in the criminal justice system.