



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 Crowns 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 deceaseds
    cocaine and murder him.  The Crown alleged that the appellant was the shooter. Ms.
    Le, the other victim, was the deceaseds 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 Crowns 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 Crowns
    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 Trans
    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 appellants theory that Cong Tran killed
    the deceased in retaliation for the recent stabbing of Congs 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 Trans 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
    Trans brother, Thuan Tran, had been stabbed less than a week earlier. Cong
    Tran missed Ms. Les 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 uncles nearby
    house. Both Ms. Le and Cong Trans evidence was that, after the appellant had
    been gone some time, Cong Tran called the appellant to see what was taking so
    long. The Crowns 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 youll 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 Trans 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 girlfriends.

[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 judges 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 judges
    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
    appellants 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 appellants 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 appellants 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 dont believe youll 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 judges 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 appellants 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 appellants inquiries of other
    counsel before May 16, 2006 showed that the appellants 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. Les evidence was under reserve that the appellants
    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.
    Derstines 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 appellants 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
    appellants 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 appellants 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 them

to cross-examine witnesses at a
voir dire
. A
micus
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 appellants decision to represent himself,
    with the assistance of
amicus
, was not relevant in its deliberations.

[39]

The
    appellants counsel does not point to anything in the trial record, for example
    the appellants 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 appellants claim that
    the co-accused killed the victim in retaliation for an attack on the
    co-accuseds 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 Crowns 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 Trans 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 appellants 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 appellants 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 judges
    conclusion that there was no evidence connecting the shooting to the earlier
    assault on Cong Trans 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 Trans denial of any connection between the homicide and his
    brothers assault could not become positive evidence that a connection
    existed.

[44]

The
    trial judges 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 Crowns 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.


