






Citation:


R. 
          v. Nguyen


Date:
20030110







2003 
          BCCA 13


Docket:


CA028961













COURT 
          OF APPEAL FOR BRITISH COLUMBIA






BETWEEN:






REGINA






RESPONDENT








AND:






AN NGUYEN






APPELLANT














Before:


The 
          Honourable Chief Justice Finch







The 
          Honourable Madam Justice Newbury







The 
          Honourable Mr. Justice Hall










S. 
          Goldberg


Counsel 
          for the Appellant




J. 
          Duncan


Counsel 
          for the Respondent




Place 
          and Date of Hearing:


Vancouver, 
          British Columbia




5 November 2002




Place 
          and Date of Judgment:


Vancouver, 
          British Columbia




10 January 2003








Written 
    Reasons by:

The 
    Honourable Mr. Justice Hall



Concurred 
    in by:

The 
    Honourable Chief Justice Finch

The 
    Honourable Madam Justice Newbury


Reasons for Judgment of the Honourable 
    Mr. Justice Hall:






[1]

The appellant, Nguyen, was convicted on February 28, 2001 of the manslaughter 
    of Quyet Van Dong.  The appellant and Dong were known to each other. They 
    had spent some time drinking together at the apartment of an acquaintance 
    that lived in the same housing complex occupied by the appellant and his wife.  
    The lady who occupied the apartment where the two men had been drinking said 
    that the appellant was a friend of her husband and that he was often at their 
    apartment to visit her husband.  She testified that on the evening in question 
    the deceased had come to the apartment in the company of the appellant.

[2]

The deceased left the upstairs apartment where various individuals 
    were drinking and apparently went downstairs to the apartment of the appellant.  
    Some fifteen or twenty minutes later, the appellant returned to his apartment.  
    In his testimony, the appellant said he had several beers before he left the 
    upstairs apartment.  In his testimony, he described what happened as follows:

THE 
    ACCUSED:  After a while, I heard my wife screaming downstair.  I left by the 
    backdoor to go downstair.  I opened the door.  I saw Mr. Quyet assaulting 
    my wife.  He was holding on to my wife's head around the neck.  I asked him 
    what happened.  He told me, "Fuck you.  What are you going to do about 
    it?"  Then he lunged at me and we fought.  He tried to grab the knife.  
    I pushed him away.  I took hold the knife but he lunged back at me and tried 
    to beat me up again.  I stopped him.  I needed to protect my wife and kid, 
    myself and my whole.  I had no intention of killing him.  I beg you to judge 
    me on that basis.

THE 
    COURT:    I'm sorry?

THE 
    ACCUSED:  I beg you to judge me on that basis.  He fell down to the floor,  
    He crawled to the door.  I went after him.  I was afraid that he would go 
    after my wife and kid and try to kill them.  When I went out the door, I saw 
    my wife was screaming for help, for the neighbours to help.  I wait there.  
    I waited there where he was lying on the ground and the neighbours called 
    9-1-1.  After the officer came, I gave the knife to the officers and I surrendered 
    myself.





[3]

Police officers gave evidence of being summoned at about 11:00 p.m. 
    to the area of the apartment on Fleming Street in Vancouver.  When the police 
    got to the scene, they could hear yelling at the rear of the residence and 
    when they arrived at the rear of the premises they found the appellant standing 
    there with a knife in his hand.  The appellant was instructed to drop the 
    knife, which he did, and he was then handcuffed.  The deceased was lying on 
    the ground in a pool of blood with apparent stab wounds.  Also present at 
    the scene were the wife and child of the appellant.  One item found by the 
    police in the trousers of the wounded man was a key that opened the door of 
    the appellant's apartment.  It appears from the evidence that the deceased 
    was relatively friendly with the family of the appellant and would from time 
    to time be at his apartment.

[4]

After the appellant was given a
Charter
warning, he gave 
    the police a general account of what had happened.  What he told the police 
    generally tracked that portion of evidence I have quoted above.  He said he 
    had been drinking upstairs and that his wife had been downstairs with their 
    baby.  He heard his wife call out and when he got to his apartment, a fight 
    ensued between himself and the deceased.  The appellant admitted stabbing 
    the deceased who he said crawled outside to the location where the police 
    found him on their arrival at the scene.

[5]

The pathologist who performed the autopsy said that the cause of the 
    death of Dong was blood loss occasioned by the stab wounds.  The pathologist 
    noted four stab wounds, being one in the back, two in the arm area and a large 
    one in the left groin area of the deceased.  The stab wounds to the back and 
    to the groin area were significant wounds.  During the autopsy the pathologist 
    also noted bruising in the area of the victim's upper right thigh and below 
    his right knee, possibly indicative of contact with an object such as the 
    toe of a shoe.  The pathologist testified that the victim had a congenital 
    deformity to his right hand, which hand appeared somewhat claw-like.

[6]

In his evidence, the appellant said that he had known the victim for 
    about three months, having met him in a restaurant in Vancouver.  It appears 
    that both the victim and the wife of the appellant were from the northern 
    part of Vietnam and therefore the appellant had invited the victim home to 
    meet his wife.  The appellant did not know why the victim would possess a 
    key to his house but he did note that he had lost a set of keys about a month 
    before this incident.  As he described events, he said that when he came into 
    the apartment he saw the deceased holding his wife against a sofa and he said 
    that the collar of her shirt was somehow disarranged.  The circumstances could 
    be suggestive of a possible sexual assault in progress.  The appellant said 
    that he thereafter got into a struggle with the deceased and that this struggle 
    moved to the kitchen area.  The appellant said that the deceased tried to 
    grab a knife from the counter but the appellant got hold of it first and as 
    the deceased came at him, he stabbed him.  He claimed he was, throughout the 
    incident, defending himself and his wife and child.  He could give no specific 
    explanation as to how the deceased received the stab wound in the back.

[7]

It can be seen from the above narrative that there is no issue but 
    that the appellant caused the death of the deceased.  The sole issue at trial 
    was whether or not his plea of self-defence, either under the provisions of 
    s. 34 or s. 37 of the
Criminal Code
could furnish a defence 
    to the crime of homicide with which he was charged.  Defence counsel suggested 
    to the jury that the appellant should be able to avail himself either of the 
    defence of self-defence or the defence of his wife from the assault or assaults 
    of the deceased.  Crown counsel suggested in argument to the jury that the 
    appellant had acted beyond the bounds of legitimate self-defence.  Counsel 
    pointed out that it is not permissible to stab one simply because you are 
    angry with the person or because you want revenge.  The defence sought a verdict 
    of acquittal and the Crown argued for a verdict of manslaughter as charged.  
    Thereafter, the judge gave his instructions to the jury and they retired to 
    consider their verdict.

[8]

In the course of their deliberations, the jury submitted two questions 
    as follows:

1.   
    Scenario of couch scene initial confrontation of accused with the victim from 
    the time @ the couch to the fight in the kitchen. Tape or transcript requested 
    of the accused of the scenario above.



2.   
    Judge's interpretation of "excessive force" under the following 
    scenario:



In a scenario where a person in his own home, holding a knife is provoked, 
    kicks an intruder for the intruder to back off, but the intruder continuously 
    pushes forward provoking, if the normal reaction of the person holding the 
    knife is to react by stabbing the intruder more than once, in one reaction, 
    is this reaction considered
excessive force
?





[9]

The judge, in response to the queries, arranged to have a portion of 
    evidence played back for the jury and, after discussing the matter with counsel, 
    the judge then gave further instructions to the jury.  Counsel for the appellant 
    submitted to the judge that he could not really answer the second question 
    in that this issue was up to the jury to decide whether the force used by 
    the appellant was justifiable.

[10]

The 
    judge, in his additional instruction, pointed out to the jury that this question 
    of excessive force was essentially a question for them to resolve.  The judge 
    also reminded the jury that he had instructed them about what force was justifiable 
    under s. 37 of the
Code
, namely, "no more than necessary 
    force" and he told them that they were required to decide whether the 
    stabbing of the deceased by the appellant was no more force than was necessary 
    to prevent the deceased assaulting or continuing an assault on the appellant 
    or on his wife.  The judge in reinstructing the jury said amongst other things 
    the following:

But 
    we are not dealing with such trivial little matters here.  We are not dealing 
    with a slight push causing someone to fall down and crack his skull.
We 
    are talking about a man being stabbed with a knife four times, two of them 
    serious, deep wounds
.

And 
    I read this to you:



You 
    should use your common sense when you consider whether or not the force used 
    by the accused on the victim, that is, the stabbing, was no more than necessary.  
    Keep in mind that a person does not usually have time for calm deliberation 
    in the face of an assault that is true.   (As one distinguished judge said, 
    detached reflection cannot be demanded in the presence of an uplifted knife.)



Now, what the judge was talking about there is the aggressor was coming at 
    the man with the knife and you could not put the reactions of the person who 
    did not have the knife, you could not put his reactions under a nice magnifying 
    glass because, in the heat of the battle, you cannot expect him to do nice, 
    precise calm things.
But that is not the case here
.



The judge said a person under assault cannot be expected to weigh, with nicety, 
    the exact measure of force that is necessary to defend himself.  That is true, 
    but in this case, we are dealing with this case and no other case and you 
    have to make the findings of fact.  But if you accept that Mr. Dong was lunging 
    or coming at the accused, then, as I say, you have the accused standing there 
    with the knife and you have Mr. Dong standing there with one arm and no weapon.  
    You have to decide is one tit-for-tat, is the force used, the stabbing, proportionate 
    to the harm or potential harm he might have expected to have received from 
    Mr. Dong.



I said to you that you should consider the following evidence when deciding 
    whether you believe or not, or are left with a reasonable doubt that the accused 
    did not use more force than was necessary to defence himself.  I referred 
    you to the following matters as some of the factors you should consider.



Mr. Dong was no longer assaulting the accused's wife.  The accused had been 
    able to repel Mr. Dong earlier on without any apparent injury and also to 
    prevent him from grabbing the knife, according to his testimony.  Mr. Dong 
    did not have a weapon.  Mr. Dong had the use of only one hand.  Mr. Dong was 
    stabled four separate times.  Two of the stabs were forceful enough on their 
    own to have been fatal, the one in the back and the one in the groin, very 
    deep thrusts of the knife.  Mr. Dong was stabbed in the back on one occasion.  
    There was no evidence of any other fighting injuries to Mr. Dong, save to 
    the two minor kick marks.  There was little evidence of injury to the accused 
    from the fierce fight described by the accused, a fight that he, in effect, 
    says put him in fear for his life, in fear for his wife's life and in fear 
    for his child's life.  There is really no physical evidence before you of 
    the serious assault on the accused other than what he tells you.

(emphasis 
    added)





[11]

A 
    number of objections were raised to the charge by the appellant in this Court, 
    including an argument that the statements of the appellant to police had been 
    improperly admitted and that the trial judge should have given a charge to 
    the jury about a person (like the appellant), being in peaceable possession 
    of real property and acting to repel an intruder, (s. 41 of the
Criminal 
    Code
).  In my opinion, there is nothing in either of those arguments.  
    The police properly warned the appellant about his rights.  There was no denial 
    of his right to counsel.  In any event, what the appellant said to the police 
    after his arrest tracked pretty exactly what he said in his evidence at trial.  
    With regard to the submission that the trial judge should have given a charge 
    to the jury about the provisions of s. 41, I do not consider that such an 
    instruction would have had any capacity to add anything to the instructions 
    already given on s. 34 and particularly s. 37.  Therefore, I see no substance 
    in this submission on alleged non-direction.

[12]

The 
    real difficulty in this case arises from the language used in the recharge.  
    Just before he gave the quoted portion of the recharge above, the judge had 
    said to the jury, "Common sense is, is it a fair fight between the two 
    of them?  One man has one hand, the other has two hands and a knife, but those 
    are factors."  In the course of his reinstructions, he also said, "You 
    have the accused standing there with the knife and you have Mr. Dong standing 
    there with one arm and no weapon.  You have to decide is one tit-for-tat, 
    is the force used, the stabbing, proportionate to the harm or potential harm 
    he might have expected to have received from Mr. Dong."

[13]

With 
    respect, it seems to me that those two passages are a species of misdirection.  
    The essential question for resolution was whether the jury was left in a state 
    of reasonable doubt as to whether or not the appellant in his actions at the 
    apartment in stabbing the deceased could bring his actions within the parameters 
    of the defences afforded under
Code
ss. 34 and 37.  To 
    introduce concepts such as a "fair fight" and "tit-for-tat" 
    into the deliberations of the jury, in my respectful view, had the capacity 
    to mislead the jury and to divert their attention from what had to be the 
    main focus of their task, namely, construing the provisions of sections 34 
    and 37 in the context of the facts they found based on the evidence in this 
    case.

[14]

Having 
    regard to the serious injuries inflicted here, it seems to me that there was 
    cogency in the argument of Crown counsel that the force used by the appellant 
    was excessive.  A properly instructed jury might well conclude the force used 
    was excessive.  However, the essential question in these cases always is, 
    what was the perception of events by the accused and was he justified in the 
    measures taken to defend himself or those under his protection?  I believe 
    the words I have noted that were employed in the additional instructions would 
    have the capacity to water down the defences being advanced on the part of 
    the appellant.  The result is that the jury may have considered this case 
    on an erroneous legal basis because of misdirection in the further instructions 
    given by the judge in response to the question of the jury.

[15]

Counsel 
    for the Crown respondent urges us to apply the curative provision if misdirection 
    should be found.  While, as I have observed, this was a reasonably strong 
    case, I do not consider that in the particular circumstances of this case, 
    the verdict would necessarily have been the same absent what I have found 
    to be misdirection.  In those circumstances, I would not accede to the submission 
    that we ought to apply the curative provision.  Since I have concluded that 
    there was material misdirection that could have affected the verdict, I would 
    allow this appeal and order a new trial.







The 
    Honourable Mr. Justice Hall







I AGREE:









The Honourable Chief 
    Justice Finch







I AGREE:









The Honourable Madam 
    Justice Newbury




