JUDGES	NEAVE, REDLICH AND HANSEN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	23 August 2011
DATE OF JUDGMENT	7 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 404
JUDGMENT APPEALED FROM	R v Adam Hargrave, Charles Hargrave and Lanh Ngoc Bui [2009] VSC 634 (King J)

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CRIMINAL LAW – Conviction – Trial of Bui – Applicant pleaded guilty to kidnapping and unlawful imprisonment with five co-offenders – Convicted of murder with one co-offender – Two co-offenders charged with conspiracy to murder – Whether trial judge erred in refusing application for severance of conspiracy to murder charge – Jury directions – Whether trial judge erred in directing jury about evidence capable of corroborating evidence of accomplice – Whether trial judge erred in directing jury regarding consciousness of guilt –Whether open to jury to find applicant guilty of murder on basis of aiding and abetting – Whether jury verdict unreasonable where co-accused acquitted of all charges – Whether jury required to be unanimous about factual foundation for verdict – Leave to appeal refused.

CRIMINAL LAW – Sentence – Trial of Bui – Manifest excess – Role of applicant in commission of offences – Leave to appeal refused.

CRIMINAL LAW – Conviction – Trial of Hargrave – Applicant pleaded guilty to assisting an offender and convicted of conspiracy to murder – Whether trial judge erred in failing to order a separate trial for conspiracy to murder – Plea of guilty to assisting an offender taken in presence of jury – Whether guilt to conspiracy to murder can be found where conspiracy contemplated commission of murder by third party – Whether verdict unsafe and unsatisfactory – Leave to appeal refused.

CRIMINAL LAW – Sentence – Trial of Hargrave – Whether insufficient weight given to applicant’s ill heath – Parity – Leave to appeal allowed – Appeal allowed – Appellant re‑sentenced.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Bui	Mr S A Shirrefs SC	Grigor Lawyers
For the Applicant Hargrave	Mr D A Dann	Haines & Polites
For the Respondent	Mr G J C Silbert SC and Mr P J Doyle	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

Lanh Ngoc Bui (also known as Luke Bui) (‘Bui’), Garry Hargrave (‘Hargrave’), Hargrave’s sons, Adam and Aaron, Quoc Bui (Bui’s brother) and Kevin Ng were jointly presented on counts of murder (Count 1), kidnapping (Count 2) and unlawful imprisonment (Count 3). The victim of these offences was Michael Daou (‘Daou’).

Bui pleaded guilty to the counts of kidnapping and unlawful imprisonment. He was found guilty of murder by a Supreme Court jury.

In addition to counts one, two and three, Hargrave and his son, Adam, were presented on a count of conspiracy to murder (Count 4). The intended victim of that count was Kylie McDonald (‘McDonald’).

During the trial, the Crown accepted Hargrave’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bui v The Queen

Details

AGLC: Bui v The Queen [2011] VSCA 404
Case: [2011] VSCA 404
Decision Date: 7 December 2011

CaseChat Overview and Summary

In Bui v The Queen, the High Court considered the convictions and sentences of Bui and Hargrave, two co-offenders involved in a series of serious criminal activities. Bui pleaded guilty to kidnapping and unlawful imprisonment but was convicted of murder alongside one co-offender. Two other co-offenders were charged with conspiracy to murder. The legal issues before the court encompassed whether the trial judge erred in refusing an application for severance of the conspiracy charge, the adequacy of jury directions concerning corroborative evidence and consciousness of guilt, the legality of convicting Bui of murder based on aiding and abetting, and the consistency of the jury's verdict given that co-accused were acquitted.

The court found no error in the trial judge's refusal to sever the conspiracy charge, affirming that the conspiracy to murder was inextricably linked to the overall criminal enterprise. Regarding jury directions, the court held that the judge's instructions were appropriate and did not prejudice Bui's right to a fair trial. The court also upheld the jury's ability to convict Bui of murder through aiding and abetting and clarified that the jury's verdict need not be unanimous about the factual foundation for each count if the totality of evidence supported the verdict. Finally, the court rejected the contention that the verdict was unreasonable because other co-accused were acquitted, stating that each case must be assessed on its own merits.

The court dismissed Bui's appeal against his conviction and sentence, affirming the correctness of the trial judge's handling of the case. In the case of Hargrave, the court allowed an appeal against sentence due to insufficient consideration of the applicant's ill health, leading to a resentencing. However, the appeal against conviction was dismissed, as was the contention that a separate trial for the conspiracy charge was necessary. The court also ruled that a guilty plea to assisting an offender could stand even when the conspiracy involved a murder to be committed by a third party.

Orders