Bui v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0813

LANH NGOC BUI	Applicant
	V
THE QUEEN	Respondent

S APCR 2009 0826

GARRY CHARLES HARGRAVE	Applicant
	V
THE QUEEN	Respondent

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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 plea of guilty to the charge of being an accessory after the fact (assisting an offender) to the murder of Daou and the jury was directed to acquit him on Counts 1, 2 and 3. The jury found Hargrave guilty of conspiracy to murder McDonald. Adam Hargrave was convicted of all four counts.

Quoc Bui, who was the only accused to give evidence, testified that he had not been present when the events leading to Daou’s death occurred. He was acquitted by the jury on Counts 1, 2 and 3. Aaron Hargrave was also acquitted on these counts. Following a no-case submission, the jury was directed to acquit Kevin Ng of murder (Count 1), and he was acquitted by the jury of Counts 2 and 3.

On 11 September 2009, the trial judge sentenced Bui to 24 years’ imprisonment for murder, six years’ imprisonment for kidnapping and four years’ imprisonment for unlawful imprisonment. Her Honour directed that one year of the sentence for Count 2, and six months of the sentence for Count 3, be served cumulatively, resulting in a total effective sentence of 25 and a half years. A non‑parole period of 20 years was fixed.

Hargrave was sentenced to nine years’ imprisonment for conspiracy to murder (Count 4) and six years’ imprisonment for assisting an offender. The learned sentencing judge directed that two years of the sentence for assisting an offender be served cumulatively upon the sentence for Count 4, making a total effective sentence of 11 years. Her Honour fixed a non-parole period of seven years.

Bui now seeks leave to appeal against his conviction for murder, as well as the individual sentences and total effective sentence imposed on him. Hargrave also seeks leave to appeal against his conviction for conspiracy to murder and the sentences imposed on him for that offence and for assisting an offender.

Background

The events which gave rise to the trial of both applicants arose out of the death of Daou, which occurred in the following circumstances. Hargrave owned the Logistics Plus Warehouse in Scoresby, from which he conducted a transport and storage company. Bui and Hargrave’s son, Adam, were involved in ‘drug trafficking, on a fairly significant scale’ from that warehouse.[1] It is unclear whether Hargrave had any actual involvement in the drug enterprise.[2] Andrew Johnston (‘Johnston’) was a ‘runner’ in the drug selling business, and lived at the warehouse. He was the main Crown witness at the trial.
[1]R v Adam Hargrave, Charles Hargrave and Lanh Ngoc Bui [2009] VSC 634 (‘Reasons’) [12].
[2]Ibid.

McDonald was a drug user and drug dealer, who had been Johnston’s girlfriend in the past. On 17 November 2006, Adam Hargrave asked McDonald to set up a meeting with Daou ― whom he believed was involved in stealing $20,000 worth of ecstasy tablets from him ― so that Adam could get the drugs back.[3] Later that night, McDonald and Daou went to a reserve in Scoresby, as she had arranged. Daou was subsequently taken out of his car at gunpoint, placed into the boot of a second vehicle owned by Melissa Archer (‘Archer’) (Johnston’s girlfriend at the time) and transported back to the Logistics Plus Warehouse, where he was held for several hours and forcibly questioned about the missing ecstasy tablets.[4] Daou was then placed into the boot of his car, where he was allegedly shot in the head by Adam Hargrave. The motor vehicle containing Daou’s body was then taken to an area of bushland in Narre Warren, where the car and body were burnt.
[3]Ibid [18].
[4]Ibid [26].

The Evidence

The main Crown witness was Johnston, who was an eye witness to the events leading to the kidnapping and false imprisonment of Daou and to some of the events which occurred at the warehouse after Daou was taken there. Johnston pleaded guilty to murder on the basis of aiding and abetting, and also to kidnapping and false imprisonment.[5]
[5]Ibid [25].

Johnston’s evidence was that after finishing work, Adam Hargrave had told him to stay at the warehouse because he needed Johnston’s help to retrieve some stolen ecstasy tablets from Daou. Adam told Johnston to borrow his girlfriend’s car. Later, Hargrave, Bui, Quoc Bui, Aaron Hargrave and Kevin Ng arrived at the warehouse. Johnston said that he and Ng went outside for a smoke and when they came back, there was a discussion underway about McDonald meeting Daou at a pre-arranged place so that the drugs could be retrieved. Adam Hargrave and Bui were the main individuals talking. Hargrave said that Daou should not be brought back to the warehouse, while Bui supported him being brought back there. Neither Quoc Bui nor Kevin Ng said anything at the meeting.

At the end of that meeting, Johnston said that he understood that Daou would turn up for a drug deal and would be ripped off. His evidence was that ‘I thought he was going to get belted, but that was about it.’

Johnston said that Hargrave and McDonald then left in Hargrave’s car to do a ‘dry run’ to the place where Daou was to be taken. Later, McDonald went to meet Daou, and Hargrave went home. Johnston said that Ng, Quoc Bui, Aaron Hargrave and Bui went to kidnap Daou. Johnston and Adam Hargrave remained at the warehouse.

Later that night, two cars arrived at the warehouse. Archer’s car was driven by Bui and Aaron Hargrave was sitting in the back seat. Daou was in the boot of that car. Ng and Quoc Bui were in Daou’s car. Johnston said that he saw Daou being taken from the car and also saw Bui, Aaron Hargrave, Quoc Bui and Kevin Ng standing around him and pushing, shoving and arguing with him. He said that Aaron Hargrave had a gun in his hand and that he heard a shot fired. While the men were wrestling with Daou, Adam Hargrave went into the office to remain out of sight, because Daou knew him.

Johnston said that Aaron, Bui and Quoc Bui wrestled Daou to a chair and Quoc tied packing tape around his chest and legs. While Aaron, Bui and Quoc were standing around Daou, his pants were pulled down and his pubic hair was set on fire. He was then sprayed with powder from a fire extinguisher. DNA matching that of Daou was recovered from a fire extinguisher which the police removed from the premises some months later. After Daou’s hair was set on fire, Ng walked past Daou. He said ‘this is not right, this should not be happening’ and went into the office. Johnston heard him vomiting.

Johnston said he then went into the office and after half an hour, Aaron, Bui and Quoc Bui came into the office and went through Daou’s mobile phones. They then went back to Daou. Johnston heard him screaming during the following half hour. Adam Hargrave then went out to speak to Daou while Aaron, Bui and Quoc Bui were still watching. Johnston said that when he walked out of the office, Daou had blood all over him. Johnston said he returned to the office and when he went back into the lounge of the warehouse, Adam told him to clean up the mess. When he walked out of the lounge, Daou was already in the boot of his own car.

Johnston described what then happened in the following terms ‘Aaron walked over with a gun, gave it to Adam, Adam walked over behind the boot.’

At that time, Bui was standing at the entrance to the warehouse near the office. Johnston said he saw Adam walk over to the car and heard the gun go off and then heard sounds of it misfiring. Bui then walked over to Adam ‘and they were mucking around’ with the gun. Adam took the gun and Johnston heard another shot followed by some further misfires and then a third gunshot. After the final shot, everyone then took their clothes off and threw them away and began cleaning. Aaron remained behind to clean, and Ng and Quoc Bui left. Johnston then travelled with Adam in Daou’s car with Daou’s body in the boot, followed by Bui, who was driving Archer’s car. Bui kept in touch by calling Adam’s phone. Daou’s car was set on fire at Narre Warren and thoroughly burnt.

Johnston and Adam then left Narre Warren with Bui in Archer’s car and drove back to the warehouse. Aaron Hargrave was there when they arrived. Shortly after that, Johnston, Aaron and Adam went to the Clarion Hotel where Archer and Adam Hargrave’s girlfriend, Theresa, were staying, while Bui went home.

The following day, Hargrave, Adam Hargrave, Bui, Archer and Johnston moved drugs from the warehouse to Hargrave’s home and removed personal items. The warehouse was cleaned and scrubbed.[6] Johnston, Archer and Adam moved into Hargrave’s house. Adam Hargrave left after a couple of weeks and moved into an apartment that his father had arranged for him in the Docklands.
[6]Ibid [32].

McDonald and Archer also gave evidence at the trial. As I explain in more detail below, McDonald had made a number of statements to the police and later conceded that her first and second statements were largely false. At the trial, she was cross‑examined about the inconsistencies between her evidence and her prior statements.

In her evidence at the trial, she said that after a short discussion in the lounge at the warehouse she was told that she was to be taken for a drive to be shown where the drug deal was going to take place (that is, the dry run). The first time she saw Aaron Hargrave was when she walked back into the car park after the discussion in the warehouse. He greeted her and she thought he had given her a hug and told her that ‘everything was going to be OK and that they just wanted their bikkies back’. There was then a discussion between Hargrave and Bui about who was going to drive and where they were going to go.

She said that she sat in the middle of the back seat in the car. Aaron was on her right hand side, Bui was driving, Hargrave was in the passenger seat and an Asian male was on her left hand side. Adam and Johnston waited back at the warehouse. After the dry run, McDonald met Daou in a car park in Croydon. They stopped at a McDonald’s restaurant, where they were joined by a friend of Daou’s, John Feretzanis. They stopped at a service station on the corner and then McDonald and Daou drove to the reserve where the drug deal was to take place. McDonald, Daou and Feretzanis were seen on CCTV security camera footage from the Shell Service Station on the corner of Ferntree Gully Road and Springvale Road.

She said that when they got to the reserve, three men came to the car. She was pulled out of it by a young looking, clean‑shaven Asian man and a gun was held to her head. She said she did not see Bui, but heard his voice. She was pushed away and ran and hid.

McDonald said that although Aaron Hargrave had gone on the dry run, he had not been present during the abduction of Daou from the reserve.

During cross-examination by counsel for Aaron Hargrave, McDonald was asked about her statement in her second record of interview with the police. During this interview, she first stated that Aaron and his father were in the lounge room of the warehouse when the conversation took place regarding Daou but later in the interview she retracted her statement that Aaron was present. She confirmed during cross‑examination that Aaron was not present for the conversation in the lounge room. During cross-examination, she also confirmed that Aaron was in the car for the dry run.

Archer said she had been in a casual relationship with Johnston for about two months when these events occurred, and had occasionally stayed in the Logistics Plus warehouse, where Johnston was living. On 17 November 2006, at about 8:30pm, she drove by herself to the warehouse. The gates were locked, and had to be opened to allow her to drive in. She sat down in the lounge room and watched TV with Adam’s girlfriend, Theresa. After a few moments, Johnston and Adam came in and closed the door. Johnston asked Archer to give him her keys. He told her he was going to borrow her car for the night, and that she could take his. He gave her his wallet, which contained about $600, to allow her to buy food and petrol.

As Archer and Theresa began to drive out of the car park, Archer saw a big Ford utility truck coming into the driveway. She saw three men inside but did not recognise the men.

Archer and Theresa drove around for four hours, stopping occasionally at McDonald’s or Safeway. They then received a call from Adam and Johnston, telling them to go to a hotel. They went to a hotel on the corner of Canterbury Road and Springvale Road. The women booked a room and went to sleep.

Archer remembered being woken by a phone call from Johnston, in which he said that he was out the front of the hotel. She let Adam Hargrave and Johnston into the room. The door was left open, and Aaron came in to the room a couple of minutes later. Johnston and Adam went to sleep in Archer and Theresa’s beds, and Aaron fell asleep in a chair in the corner. Archer woke up at about 6.30am. She left the hotel room in Johnston’s car with Aaron and Johnston. They dropped Aaron off at his house and then Johnston dropped Archer off at work.

After Archer had finished work, she and Johnston met Adam and Garry Hargrave at a Safeway car park. They all drove to the warehouse, where Archer helped Johnston and Adam pack their clothes into suitcases. She put the suitcases into the cars and onto the back of a white Ford Ute. Archer went to put some things into her own car as well. She gave evidence that all of the doors and the boot were open, and that ‘the whole car just absolutely…reeked of bleach.’

During cross-examination, Archer was asked about the statement she had made to police on 8 January 2007, in which she had said that when she left for work in the morning, ‘Aaron was asleep in the chair in the corner near the bottom of the bed I slept in’. She was asked which statement was a lie. Archer stated that she had inaccurately described the events in her statement, and that the true account was that Aaron had left with her and Johnston in the morning.

Dr Noel Woodford, a senior forensic pathologist at the Victorian Institute of Forensic Medicine gave evidence for the Crown about the result of an autopsy he had conducted, which showed that Daou’s cause of death was gunshot wounds to the head. Dr Woodford stated that there were findings ‘suggestive of at least two gunshot wounds to the head’. He could not categorically state that there were only two gunshot wounds, but there were at least two. Dr Woodford observed two entry wounds and three exit wounds, finding that the victim died of at least two, but possibly more bullet wounds. Two bullets were recovered from the crime scene.

Bui’s appeal against conviction
The Crown and defence cases

The main basis for the Crown case against Bui and his co-accused was that before leaving the warehouse to meet Daou at the reserve, they had agreed to kidnap and detain Daou and to inflict really serious injury on him, whilst foreseeing that their actions could result in his death. On the basis of the evidence which emerged during the trial, it appears that the Crown case was amended to include the assertion that after Daou was brought back to the warehouse, the scope of the original agreement expanded to include killing or inflicting really serious injury on him. In her jury charge, her Honour summarised this aspect of the Crown case as being that even if the original plan had not contemplated inflicting serious injury on Daou, by the time the accused wrestled with Daou and a gun was produced, it was ‘within the contemplation’ of Bui, Adam and Aaron Hargrave and Quoc Bui (but not Ng, who had by this time withdrawn) ‘that the gun [was] going to be used to kill’ Daou.

In his opening address, the prosecutor also put the Crown case on the alternative basis that each of the accused aided and abetted Adam Hargrave.

Bui’s defence in relation to the murder was that the violence inflicted on Daou by others went well beyond the original plan to threaten him in order to recover the ecstasy tablets he had taken. At its highest, the plan was to ‘rough [Daou] up a bit’. Bui admitted that he had gone on the dry run before Daou was abducted and that he had been present when Daou was put in his car boot and taken to the warehouse. However, he did not admit to participating in a plan to inflict really serious injury on Daou or to torture him to discover the whereabouts of the missing drugs. Bui also denied that, after Daou was brought back to the warehouse, there was any modification of the original agreement.

Ground 1

The Crown relied on six intercepted telephone calls between Hargrave and his son, Adam, as post‑offence conduct amounting to implied admissions of guilt for the murder of Daou, and as evidence of the conspiracy to murder McDonald.[7] (It will be recalled that Hargrave ultimately pleaded guilty to being an accessory after the fact to murder and the jury were directed to acquit him of murder, kidnapping and unlawful imprisonment.) It was conceded that these calls were not admissible as evidence against Bui in support of Count 1.
[7]These telephone calls were transcribed at Exhibit 25: calls 1413, 290, 1788, 1803, 1848 and 1922.

Bui’s first ground of appeal was that:

The learned trial judge erred in refusing the application that count four (conspiracy to murder) should be severed from the presentment.

Counsel for Bui submitted that the intercepted telephone calls which were played to the jury as evidence against Garry and Adam Hargrave, but were inadmissible against Bui, were so prejudicial to Bui that their effect could not be overcome by a jury direction. Accordingly, her Honour’s failure to sever the presentment had resulted in an unfair trial of Bui.[8]
[8]See comments on this matter in Jones & Waghornv The Queen (1991) 55 A Crim R 159, 164 (Crockett J).

There were three phone calls which were said to have been particularly prejudicial to Bui. The first of these calls was made on 4 January,[9] the same day that The Age newspaper contained a report of Daou’s murder, which featured a ‘photofit’ image of an alleged offender based on information given to the police by McDonald. The phone call included the following exchange between Adam and Garry Hargrave:
[9]Call 1413: 4 January 2007.

Garry: The photo fit pictures, they’re lookin’ for the person. They’re lookin’ for.
Adam: Yeah, that was on the news.
Garry: Yeah, pretty similar to, ah, our mate.
Adam: Yeah, some wing-nut…
Wing nut’s gonna lose it when I go an’ talk to him in a second.

Garry: About what?
Adam: Ah, about ah, something last night.
Garry: About that?
Adam: Yeah, something to do with that.
Garry: With her?
Adam: Well, that girl I don’t think will be around. I reckon she’s gonna have to be on holiday, for sure.
Garry: Okay.

Counsel for Bui argued that the jury would have understood the references in this conversation to ‘some wing nut’ as references to him. Counsel submitted that ‘wing nut’ was one of Bui’s nicknames, along with Nookie and Luke. Bui also relied on the fact that a call was made to him by Adam Hargrave approximately 10 minutes after this conversation,[10] in which Adam told Bui that he wanted to meet him because ‘I’ve got a problem’. It was said that this would have led the jury to conclude that he was the person mentioned in call 1413. This subsequent call was not admitted in evidence against Bui.
[10]Call 1415, 4 January 2007.

The second call began by Hargrave telling Adam to turn on his radio. The relevant contents of that call were as follows:[11]
[11]Call 290: 8 January 2007.

Adam:He’s saying, that girl has to go…
Adam:Yeah, he said man you have to make sure, that they get rid of this girl an’ you can’t do it an’ you’ve got to be somewhere away, so they wont – can’t get you – because you’re the only link at the moment. If they don’t do something about it. (Inaudible). I don’t think they realise.
…
Adam:And he’s away. I was talking to one of Luke’s bosses yesterday an’ he was talkin’ about these Cambodian brothers in Sydney who run everything and pop Lebbo’s.
Garry:Mm’mm.
Adam:He said they did – they do murders and shit all the time, he said and all of a sudden all the witnesses will get knocked and the murder’s basically dropped. And I was talking to Matty and he goes I know who whose [sic] them cunts are, they’re evil cunts. He said, why do you think they get dropped. Without witnesses to the crime they’ve got nothing.
Garry:They’ve got nothing. Without that they’re fucked.
Adam:But she can talk to whoever she wants – if they weren’t there, it’s doesn’t matter what she told her friend.
Garry:No.
Adam:So I’m thinking, you grab Luke an’ you tell ‘im Kylie’s going’ round an’ saying that you were there that night, didn’t ya.
Garry:He was.
Adam:No, no. You grab Luke, you pull him aside and you go man you need to do something right fucking now. Kylie’s goin’ round saying that you were there, and you need to say to Luke, ‘Do you realise if Adam goes away this business (inaudible) it’s not gonna happen at all.’
Garry:It’s like, yeah –
Adam:You need to grab them an’ you need to explain that to them so they understand the urgency about it. ‘Cause they’re all just sitting’ there, thinkin’ oh, point to Adam, because nothin’ – we’re right.
Garry:They can’t just say nothin’.
Adam:No.
Garry:If they won’t, they may never (inaudible) by yourselves.
Adam:No, but as I’m saying is you need to grab him an’ just say to him, you make it up an’ just say, Kylie going round an’ saying your name now.
Garry:So who did I hear it from?
Adam:(Inaudible) … said it to you. An’ you say to Luke, ‘She needs to go now.’
Garry:I’m not gonna – I’m just gonna say, if he says who said – I’m not gonna tell you who said it. I’m tellin’ you it’s been said.
Adam:Yeah. Alright, so, you can just say to him – Luke ya understand, without you, this business doesn’t happen, an’ with this girl floatin’ around – she can put us all away.
Garry:So where they gonna put her?
Adam:Grab her, they can take her away somewhere. They’ll never find it again. They can do that.
Garry:(Inaudible). They better do better than they did last time. I tell ya (inaudible)

It was submitted that this evidence would have been prejudicial to Bui, because it indicated that Garry and Adam Hargrave believed that he was prepared to ‘get rid of’ another person.

In a telephone call between Garry and Adam Hargrave on 8 January 2007, there was a discussion about an unnamed person having to go on a business trip.[12]
[12]Call 1788: 8 January 2007.

The third telephone call, which was said to have been highly prejudicial to Bui, occurred on the following day and included the following exchange:[13]
[13]Call 1803: 9 January 2007.

Adam:Hey, that business trip’s gonna cost me paper.
Garry:How much?
Adam:Prob’ly about thirty.
Garry:Mate that’s better than the other alternative.
Adam:Yeah, I know. Um –
Garry:(In background to U/K person: Stay there.) (Inaudible)
Adam:They-they-they.
Garry:(In background to U/K person: Whoa-Whoa.)
Adam:Know where to go already too.
Garry:(In background to U/K person: Whoa-Whoa. Stay there.) Hang on. You’re not doin’ nothin’, though, are ya?
Adam:Nah.
Garry:You’re gonna be with me, yeah?
Adam:Yep.
Garry:An’ it’s gonna happen, this weekend?
Adam:Could happen any day.
Garry:Have they found her?
Adam:Sorry? Yep.
Garry:Have they found –
Adam:Yep.
Garry:They can’t find the body, yeah? Cannot find the body.
Adam:They’re thinkin’ it doesn’t matter.
Garry:They’ve – nah, they can’t –
Adam:No, but there’s no voice. There’s other people around.
Garry:What do ya mean?
Adam:There’s other people there. So it’s either one or all. An’ if it’s one they’re gonna know – if it’s all, ya know what I mean?
Garry:Fuckin’ hell. Be another investigation.
Adam:Sorry?
Garry:Be another investigation.
Adam:Who is?
Garry:If they found the body.
Adam:What?
Garry:I’ll talk to ya mate today. I’ll be there this afternoon.
Adam:It’s not as easy as ya think. Trust me.
Garry:No, I know but – I don’t want this to fuck up like the other one, ya know?
Adam:Yeah. Alright.
Garry:See ya.

Bui’s counsel contended that ‘ya mate’ was clearly a reference to Bui, that this and the other two calls showed that Adam and Garry Hargrave believed that Bui was capable of and prepared to be involved in murder, and also that he had previously been involved in a similar incident, which the jury would infer was a reference to Daou’s murder.

Bui relied on R v Alexander and McKenzie[14] in support of his submission that the prejudice suffered by him as a result of the admission of the phone calls as evidence against Adam and Garry Hargrave could not be overcome by a jury direction that this evidence was not admissible against him.
[14](2002) 6 VR 53 (‘Alexander’).

Conclusion on ground 1

Under Rule 2 of Schedule 6 of the Crimes Act 1958 (Vic):[15]

Charges for any offences may be joined in the same presentment if those charges are founded on the same facts or form or are part of a series of offences of the same or a similar character.[16]

[15]This schedule has been repealed. See now Criminal Procedure Act 2009 (Vic), s 170.

[16]See also ss 363 and 371 of the Crimes Act 1958 (Vic), which provided for aiders and abettors to an indictable offence to be charged in the same presentment and tried together. These sections have also been repealed.

Bui’s counsel did not, and probably could not, have argued that this Rule was inapplicable.[17]
[17]For the criteria relating to the Rule’s application, see, eg, R v McLean (2000) 2 VR 118, 128 (Tadgell JA).

Although it is for the prosecutor to decide whether counts against a single accused should be joined in the same presentment, or whether more than one co‑accused should be presented for trial at the same time,[18] the trial judge had a discretion to order that the count should be tried separately because its inclusion in the presentment would prejudice Bui in the conduct of his defence.[19]
[18]R v Demirok [1976] VR 244, 250−251 (‘Demirok’).
[19]Ibid 251. See also the useful summary of relevant principles in R v Iaria and Panozzo [2004] VSC 110, [5]−[6] (Nettle J).

An important factor to be taken into account in the exercise of that discretion was whether the evidence called in support of the count alleging the conspiracy by Hargrave and Adam was cross-admissible against Bui. As I have said, the phone calls relied upon as evidence of the conspiracy were not admissible against Bui.

There was extensive discussion between her Honour and counsel for Bui as to whether Count 4 should be severed.[20] However, her Honour did not give any formal ruling on the application for severance. It would have been better for her Honour to have done so. In Baini v The Queen,[21] the Chief Justice recently criticised a similar failure to give reasons for failing to sever a count from a presentment.[22] Such a ruling would have clarified the weight which her Honour gave to the various factors she was required to consider in exercising her discretion to order severance of Count 4.[23]
[20]Counsel for Quoc Bui, Aaron Hargrave and Kevin Ng also submitted that the count should be severed.
[21][2011] VSCA 298.
[22]Ibid [2]−[8].
[23]The principle in House v The King (1936) 55 CLR 499 applied to her Honour’s discretion to order severance of count four in order to ensure a fair trial for Bui.

However, as the Full Court observed in Demirok:[24]

When the judge’s exercise of his discretion comes to be challenged in an appellate court, the trial has been completed and the appellate court has the advantage of knowing how in the end it was conducted. This circumstance means that any review of the judge’s discretion has unusual qualities. If it can be shown that the judge made an error in the exercise of his discretion the appellate court will nevertheless not put the judge’s decision aside and substitute a different view of its own unless, in the event, it considers that the course of the trial constituted a miscarriage of justice. Conversely, if the decision of the trial judge was made on correct grounds and was in itself a decision which the appeal court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. In the latter case, the ground of appeal taken no doubt should not be the ground that the trial judge’s discretion miscarried, but simply that because of the course of events which developed during the trial, the nature of the trial constituted such a miscarriage.

[24][1976] VR 244, 251 (Young CJ, Lush and Crockett JJ). See the similar comments of the New South Wales Court of Criminal Appeal in R v Dellapatrona and Duffield (1993) 31 NSWLR 123, 137.

Demirok referred to the need to show a ‘miscarriage of justice’ before the judgment would be set aside on appeal. However, in Bainiv The Queen, Ashley JA[25] explained that the essential question to be considered in an appeal based on failure to sever was whether this had resulted in a substantial miscarriage of justice, in the sense that the applicant had been deprived of a fair trial.[26]
[25]With whom Nettle JA and Warren CJ agreed (in separate reasons).
[26]Baini v The Queen [2011] VSCA 298, [59]−[69]. This is the case even where the previous form of the proviso contained in s 568(1) of the Crimes Act 1958 (Vic) applies: see Baini v The Queen [2011] VSCA 298, [57]−[65].

It follows that the critical question for decision is whether her Honour’s failure to order severance resulted in a substantial miscarriage of justice because:

the deliberations of the jury may [have been] influenced by the presence of what they might perceive as powerful but which would, nevertheless, be inadmissible material in the case of the particular accused, or in which the position of the particular accused might be adversely affected by unwarranted exposure to the prejudicial impact of such material.[27]

[27]R v Debs; R v Roberts [2005] VSCA 66, [209] (Vincent JA).

I do not consider that the phone calls admitted in evidence against Adam and Garry Hargrave were such powerful evidence of Bui’s involvement in the murder of Daou that they were likely to have resulted in the jury ignoring her Honour’s direction that the phone calls were inadmissible against Bui.

The case is not comparable with Alexander,[28] on which counsel for Bui relied. The circumstances of that case were as follows. McKenzie, who was the girlfriend of the co-accused Alexander, was jointly tried with him on counts alleging that Alexander, a music teacher, had committed various sexual offences against a girl who was one of his pupils. It was alleged that McKenzie had participated in some of this sexual activity. At the trial, evidence was admitted of sexually suggestive conversations which Alexander was said to have had with five other pupils, which were similar to conversations he allegedly had had with the complainant. In some of the conversations, he admitted having sex with the complainant and directly implicated McKenzie in the offending. This Court held that McKenzie should not have been jointly tried with Alexander, because the inadmissible hearsay evidence against McKenzie about her involvement in the offending had the potential to swamp her defence and its highly prejudicial nature could not be overcome by judicial direction.
[28](2002) 6 VR 53.

In this case, even if the jury had concluded that the reference in the phone calls was to Bui, the calls themselves did not indicate that he was prepared to participate in a murder. In the only call in which ‘Luke’ was mentioned by name, Adam and Garry Hargrave discussed how to persuade him that McDonald represented a danger. Adam told Hargrave to say ‘Luke ya understand, without you, this business doesn’t happen, an’ with this girl floatin’ around – she can put us all away.’ The calls did not indicate that Bui had agreed to do something about McDonald. Further, in a call between Adam Hargrave and Bui on 28 December 2006, when Adam told Bui that a girl was ‘talkin’ and tellin’ people a story’ and ‘was saying everything’, Bui response was to ‘just leave it’ and that ‘you can’t stop rumours.’[29]
[29]Call 637, 28 December 2006.

During closing addresses, both the prosecutor and defence counsel told the jury that phone calls which had been admitted in evidence against Adam and Garry Hargrave were not admissible against Bui. The learned trial judge specifically instructed the jury that these telephone calls were not admissible against him as post‑offence conduct indicating consciousness of guilt of murder. After telling the jury that the calls were not admissible against Hargrave in relation to the murder count, because they had been directed to acquit him on that count, her Honour said:

The same applies in respect of Ngoc Bui. Whilst he is a participant on some of the calls, they are not relied upon in any way as demonstrating any form of implied admission of responsibility for the crime of Michael Daou and cannot, and must not, be used by you in that way.

Later, her Honour discussed the use of these calls in relation to the conspiracy count against Adam and Garry Hargrave. She said:

Now the Crown says this is admissible against Garry and Adam Hargrave, and there is a reference in there to Ngoc Bui. I will remind you again, these calls have nothing to do with Ngoc Bui. They are not admissible in any way against him, they are not something you should consider at all when dealing with the case in relation to Ngoc Bui.

As has frequently been said, the criminal justice system is based on the assumption that a jury will comply with the directions given to them.[30] The fact that the jury acquitted a number of the co-accused shows that they had careful regard to her Honour’s directions. In my opinion, the jury directions were sufficient to ensure that the jury would not misuse evidence relevant to Daou’s alleged murder by Adam Hargrave or to the alleged conspiracy by Adam and Garry Hargrave to murder McDonald, in determining whether Bui was guilty of Count one. The evidence of the phone calls was not overwhelming evidence of Bui’s guilt, as was the case in Alexander.
[30]R v Halliday [2009] VSCA 195, [81]; Gilbert v The Queen (2001) 201 CLR 414, 425; R v Dupas (2010) 241 CLR 237, 248.

There is nothing in her Honour’s decision that Count 4 should not be severed which suggests error. Nor, having regard to the conduct of the trial, is there any basis for concluding that the risk of prejudice caused by the failure to sever was worse than that contemplated at the time when her Honour declined to order severance of Count 4.

For these reasons, ground 1 is not made out.

Ground 2

Ground 2 alleges that:

(2) The learned trial judge erred in directing the jury that –
2.1 the applicant’s pleas of guilty to kidnap and false imprisonment of Michael Daou; and
2.2 the applicant’s admission of participating in a ‘dry run’ prior to the kidnapping of Michael Daou; and
2.3 the applicant’s call charge records of phone contact between him and Adam Hargrave following the murder of Michael Daou; and
2.4 the applicant’s admission that he directed Adam Hargrave and Andrew Johnston to the area where the body of Michael Daou was burnt;

were each and all capable of corroborating the evidence of the accomplice Andrew Johnston.

Each of these factors were identified as corroborative evidence in a document provided to the jury entitled ‘evidence relied upon by Crown as capable of amounting to corroboration of Andrew Johnston’.

The Crown led evidence of the call charge records between the relevant parties, and evidence as to the mobile phone towers and the location from which the phone calls were made. In relation to the murder of Daou, the Crown relied upon the call charge records which indicated mobile phone contact between Bui’s phone and the phone of Adam Hargrave as the phones travelled between Rocco Drive, Scoresby, and Narre Warren East where Daou’s body was located. The last call made on Daou’s phone was at 12:43am. The call charge records also showed that Johnston called Archer at 5:39am, the time that Johnston, Adam and Aaron were said to have arrived at the Clarion Hotel. The Crown submitted that the call charge records confirmed the relationship between the men and the contacts between Bui and the other participants in the abduction.

In respect of Count 2 (kidnapping), the Crown relied upon the call charge records as indicating a significant amount of mobile phone contact between Adam Hargrave’s phone and the phone of McDonald prior to McDonald coming to the warehouse. There was continuing telephone contact between McDonald and Adam through the early hours of the morning. The Crown submitted that the amount of mobile phone contact supported the suggestion that McDonald was told to stay in contact with Adam as she was setting up Daou to lure him to the meeting place that had been selected on the dry run.

Bui contended that none of these items were capable of amounting to corroboration of Johnston’s evidence with respect to the murder count against him. Relying on R v Rayner,[31] Bui argued that these items did not make Johnston’s account of the circumstances of Daou’s murder (and Bui involvement in it) more probable, and that the identification of these matters by the trial judge ‘impermissibly bolstered’ Johnston’s credibility.
[31][1998] 4 VR 818.

Bui submitted that the other accused in respect of whom Johnston’s evidence was uncorroborated (that is, Kevin Ng, Quoc Bui and Aaron Hargrave) were acquitted and that her Honour’s misdirection on corroboration had deprived him of the chance of an acquittal that was reasonably open to him.

In my view, ground 2 is not made out. I would accept the Crown’s submission that the ground reflects the incorrect assumption that evidence is only corroborative if it is capable of proving that the accused committed the crime of murder. That misapprehension was exposed in R v Kuster,[32] where this Court said that:

Whether evidence amounts to corroboration is governed by the fundamental principle that it must be evidence — independent of the witness to be corroborated — which tends to confirm the evidence of that witness that the crime was committed and that the accused committed the crime. This principle has from time to time been misconceived as requiring the corroboration evidence itself to be probative of the fact that the accused committed the crime. Vincent JA in R v Taylor[33] noted that there has been a ‘remarkable persistence of the misconception’ that evidence relied upon as corroboration ‘must itself be probative of guilt’. The present argument rests upon this very fallacy.
In BRS v R,[34] Brennan CJ observed that: ‘[I]t is sufficient to constitute corroboration that the evidence should strengthen the evidence to be corroborated as to a fact on which proof of guilt depends’. The essential quality of corroborative evidence is that it must independently ‘confirm’, ‘support’ or ‘strengthen’ the evidence to be corroborated, by rendering that ‘other evidence more probable.’ It does so by providing support, from a separate and more trustworthy source, for the truth and reliability of the evidence to be corroborated. Hence there is no distinction for the purposes of corroboration between evidence which itself tends to implicate the accused in the commission of the offence charged and evidence which is capable of supporting the evidence of the witness to be corroborated. Evidence may be corroborative even though it may itself be regarded either as consistent with innocence or as equivocal. It is for the jury to determine whether it is corroborative.
Typically, it is the evidence to be corroborated which will establish the commission of the crime and the accused’s involvement. The corroborative evidence need only render that account more probable in some material particular. The corroborative evidence, ‘standing alone’, need not establish the commission of the crime or the accused’s involvement in it.[35]

[32](2008) 21 VR 407.

[33](2004) 8 VR 213, 228.

[34](1997) 191 CLR 275.

[35]R v Kuster (2008) 21 VR 407, 411−3 ; see also Doney v R (1990) 171 CLR 207, 211.

It must be accepted that the items of evidence relied on as corroboration in this case are capable of being explained in a manner which does not implicate Bui in murder. However, Bui’s admission that he participated in the ‘dry run’ before Daou was kidnapped and his pleas of guilty to kidnapping and false imprisonment make it more probable that he was part of a joint enterprise to inflict really serious injury on the victim. He did not contest that he was present throughout the period Daou was present at the warehouse.

The same can be said of Bui’s involvement in disposal of Daou’s body. This does not prove that he engaged in a plan to inflict really serious injury on the victim, or aided and abetted Adam Hargrave in murdering the victim, but is evidence from Bui’s own mouth which makes it more probable that this was the case. Standing alone, the evidence of phone contact between Bui and Adam Hargrave might have been too equivocal to corroborate Johnston’s evidence. However, when associated with the other evidence, it also had some corroborative effect.

Thus, her Honour correctly directed the jury that these matters could be regarded as corroboration of Johnston’s evidence.[36] For these reasons, I would reject ground 2.
[36]Doney v R (1990) 171 CLR 207, 211.

Ground 3

Ground 3 alleges that:

the learned trial judge erred in directing the jury that the applicant’s admission that he directed Adam Hargrave and Andrew Johnston to the area where the body of Michael Daou was burnt was post offence conduct capable of being used as evidence of the applicant’s consciousness of guilt for the murder of Michael Daou.

Her Honour gave detailed jury directions as to the manner in which the jury could use the evidence of post-offence conduct. The jury were handed a list of the post‑offence conduct relied upon by the Crown in the case of each accused. The document, to which her Honour referred in her oral directions, said that:

The only matter of post offence conduct which the Crown argues you should consider in relation to implied admissions of responsibility for the murder of Michael Daou against Ngoc Bui is:
the burning of the body of Michael Daou.

In her oral directions, her Honour said that:

In relation to the next person, Ngoc Bui, the only matter of post‑offence conduct, which the Crown submit is evidence of the consciousness of guilt, against Ngoc Bui is what I have listed as Item 10, the burning of the body of Michael Daou.

Her Honour told the jury that if they were satisfied that the only reasonable explanation for Bui’s post-offence conduct was that the accused had committed the crime, they could use it as an implied admission of responsibility for Daou’s murder. She reminded the jury that the Crown case was that this was ‘done in an attempt [to] destroy forensic evidence, to impede and hinder the investigation and prosecution’ of Daou’s murder.

Her Honour referred in her directions to the defence argument that although Bui admitted to guiding Adam Hargrave to a place to dispose of the body, the only evidence that he was involved in the actual burning of the body was that of Johnston. Her Honour also alluded to Bui’s plea of guilty to kidnapping and false imprisonment and to the defence argument that Bui’s admission that he had guided Adam Hargrave to the location where the body was burned simply indicated that he was prepared to assist Adam Hargrave in dumping the body, because of his fear that he would be suspected of involvement in the murder, even though he had not participated in it.

Bui relied on the statement of this Court in R v Ciantar[37] that where ‘post‑offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt’. It was contended that the evidence relating to Bui’s conduct was ‘intractably neutral’. It could not be properly regarded as evidence of his guilt of murder, because it was equally consistent with his knowledge that the victim had died and his admission of guilt to the victim’s kidnapping and false imprisonment.
[37](2006) 16 VR 26 (‘Ciantar’).

In my opinion, the argument is really an attempt to revive the proposition rejected by this Court in Ciantar.[38] In that case, a Full Bench held that the mere fact that a person’s post offence conduct may be attributable to his or her knowledge of having committed a lesser offence than the offence of which it is said to demonstrate consciousness of guilt, does not preclude that conduct being left to the jury as evidence of guilt. The Court said the following:

With respect we are not persuaded that it is either necessary or desirable so to restrict the circumstances in which a jury may find evidence of post‑offence conduct to be probative of guilt of a specific offence as opposed to a lesser included offence or other offences on a multiple‑count presentment[39] or, as in the present case, other offences disclosed by the evidence. The interrelationship between evidence of consciousness of guilt and other evidence is inherently more complex than that, and the permutations and combinations of facts in which it may fall to be applied are infinitely variable. As Winneke P in effect observed in R v Burrows,[40] exclusionary rules of the kind propounded in Heyes[41] unnecessarily confine trial judges where post-offence conduct may be relevant and probative.[42]
Of course, there will be circumstances in which post-offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative or, another count on the presentment where there is a multiple-count presentment or another offence where it is disclosed by the evidence. For example, if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of the killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder. On the limited evidence available, one could not exclude as a reasonable possibility that the accused was guilty of manslaughter or possibly some lesser included offence. And the jury would need to be so instructed.
But in most murder cases the evidence is more extensive than that. Usually, the Crown presents evidence about the relationship if any between the deceased and the accused, the events leading up to the time of death, the place and time and the circumstances of the death, the means of killing and the cause of death, other injuries which may have been inflicted on the deceased and any injuries suffered by the accused in the course of the killing.
Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused’s words and conduct before and during the killing and forensic evidence, may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent.[43] And comparable reasoning is equally applicable in trials for other offences.[44]

[38]Ibid.

[39]R v Finnan[2005] VSCA 151.

[40]R v Burrows (2003) 140 A Crim R 533, 543.

[41]R v Heyes (2006) 12 VR 401.

[42]See also Meko v The Queen (2002) 146 A Crim R 131, 148 (Heenan J).

[43]See, eg, R v Burrows (2003) 140 A Crim R 533, 539 (Charles JA).

[44]Ciantar (2006) 16 VR 26, 47 [64]−[67].

Although the Court said that ‘intractably neutral’ conduct should not be left to the jury as evidence capable of demonstrating consciousness of guilt, it was accepted that:

where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating such a consciousness of guilt, the post‑offence conduct should be left to the jury to determine whether it has that effect. Similarly, where evidence of consciousness of guilt, which although by itself is equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.[45]

[45]Ibid 48, [72] (footnotes omitted).

I do not consider that Bui’s admission that he was involved in directing Adam Hargrave to the place where Daou’s body was to be concealed was ‘intractably neutral’, in the sense described in Ciantar. That admission had to be examined in the context of the other circumstantial evidence of Bui’s involvement in the events of 17 November, including his admission of guilt to involvement in Daou’s abduction and the evidence that he was present at the warehouse when Daou was being questioned.

If the jury accepted that Bui had helped to burn Daou’s body, as Johnston asserted, and had not simply guided Adam to the place where this was done, the burning of Daou’s car and the incineration of his body would have been an extreme step to avoid detection for Bui’s involvement solely in the kidnapping and unlawful imprisonment. Moreover, even if the jury considered that he had merely guided the men to a place where the body would be left, I consider that her Honour correctly left it to the jury to determine whether Bui’s conduct in assisting the concealment of Daou’s body tended to show a consciousness of guilt of murder.

Ground 4

Ground 4 alleges that:

The learned trial judge erred in directing the jury that they could find the applicant [Bui] guilty of the murder of Michael Daou on the basis that he aided and abetted Adam Hargrave.

The particulars for this ground state that:

at the time of the conduct alleged by the Crown to constitute the applicant’s aiding and abetting it was not open to find that Michael Daou was still alive.

As I have said, the Crown opening alleged that all of the accused were guilty of murder, because they had entered into a joint agreement to kidnap and detain Daou to force him to divulge the whereabouts of the stolen ecstasy tablets and that, either in the original plan or subsequently, they had contemplated that really serious injury might be inflicted on him. As a second string to his bow, the prosecutor also said that the five accused could be found guilty on the basis that they had aided and abetted Adam Hargrave in shooting the victim. The prosecutor said:

There is another way that the Crown says the accused are guilty, the Crown says the deceased was shot in the head by Adam Hargrave, and at the time he shot him in the head he was aided and abetted by each of the other five … they were present throughout, they assisted Adam Hargrave by encouraging him and assisting him.

Although the prosecutor’s final address was somewhat ambiguous, it arguably articulated the Crown’s aiding and abetting case against Bui in a more limited way. The prosecutor said the following:

So Aaron and Luke [Bui] are clearly aiding and abetting Adam who inflicts the fatal shots in the sense that they are present, they assist him by handing him the gun, fixing when it misfires twice and facilitating what was effectively the execution of Michael Daou.

That part of the prosecutor’s final address must be considered in light of the defence contention at trial that Johnston was lying in his evidence that Aaron Hargrave handed the gun to Adam and Bui fiddled with it. The prosecutor’s statement may well have meant only that if Johnston’s evidence on this matter were accepted, Bui could be found to have encouraged Adam to kill the victim before or at the time that he was put into the boot of the car. This would have been consistent with the way in which the Crown case was originally opened. However, late in the trial, counsel for Bui submitted that this limited the Crown aiding and abetting case against Bui to the assistance Bui gave Adam in helping to fix the gun after it misfired. Likewise, it was said that the Crown case against Aaron Hargrave was that he aided and abetted Adam Hargrave by handing him the gun. The prosecutor did not disagree with that contention.

In her jury charge, the learned trial judge first said the following:

the Crown in this case have put their case in two alternative ways in respect of the count of murder. Firstly, they have put it that there was a single plan to kidnap and detain or falsely imprison Michael Daou and to inflict really serious injury upon Michael Daou for the purposes, all together, of regaining the ecstasy tablets that had been taken from Mr Ferguson, and to obtain information in respect of rival drug syndicates that were dealing in the area. …
The second way they put it is that Adam Hargrave has fired the handgun with an intent to kill Michael Daou and that he was aided and abetted by Aaron Hargrave and Ngoc Bui.

Her Honour initially directed the jury in relation to the aiding and abetting case as follows:

Aiding and abetting. Both Aaron Hargrave and Ngoc Bui have been charged with the offence of murder. However, it has not been alleged in respect of the alternative way in which the Crown argue its case, that is, that they were aiding and abetting Adam Hargrave, not been argued that either of them personally committed the acts that make up the offence. Instead the prosecution has alleged that both of them committed murder by assisting or encouraging Adam Hargrave to commit that offence. I must, therefore, direct you about when a person will be held responsible for assisting or encouraging someone else to commit an offence.
The law says that if someone aids or abets another person to commit an offence, that they will be equally guilty of that offence, regardless of the fact that they did not commit the crime themselves. So this is one of the other situations in which the law holds a person responsible for the actions of other people. So as that occurs in respect to acting in concert, it also applies in respect of aiding and abetting.
In order to find either Aaron Hargrave or Ngoc Bui guilty of committing murder by aiding and abetting, there are three elements, each of which the prosecution must prove beyond reasonable doubt. I will list them for you and then explain each one.
The first element that the prosecution must prove is that someone committed the offence of murder. That person is alleged to be Adam Hargrave. The second element that the prosecution must prove is that the accused knew of or believed in the essential circumstances needed to establish murder.
The third element that the prosecution must prove is that the accused intentionally assisted or encouraged the principal offender, being Adam Hargrave, to commit murder.
Before you can find Aaron Hargrave or Ngoc Bui guilty of murder by aiding and abetting you must be satisfied that all of these elements have been proven beyond reasonable doubt.

After telling the jury that they had to be satisfied that Adam Hargrave had murdered Daou by shooting him, her Honour further explained that:

for this second element to be met Aaron Hargrave and Ngoc Bui must have known or believed that Adam Hargrave intended to kill Michael Daou. For this element to be satisfied you must find that Aaron Hargrave and Ngoc Bui, or Ngoc Bui, or both, actually knew of or believed in all of these circumstances at the time that he, in the case of Aaron Hargrave, is alleged to have handed the firearm to [Adam] Hargrave,[46] and in the case of Ngoc Bui, when he helped him to unjam the firearm after he had already fired it into the boot of the car where Michael Daou was located.[47]

[46]Her Honour said ‘Aaron’, but it is apparent from the context that she meant ‘Adam’.

[47]Emphasis added.

After discussing Johnston’s evidence, and the attack on it by defence counsel, her Honour said that:

The third element that the Crown must prove is that the accused intentionally assisted or encouraged the principal offender to commit the crime of murder. In this case it is alleged that Aaron Hargrave and Ngoc Bui did this by what is called aiding and abetting. A person aids or abets, it is a lovely old expression, isn’t it, abets, aids and abets the principal offender, being Adam Hargrave in this case, if that person either intentionally helps him to commit the offence, or intentionally encourages him by words or presence to commit the offence, or intentionally conveys to him by words or presence and behaviour that he supports the commission of the offence.

A person can aid and abet an offence by words, action, or both. However, in most cases he needs to do something more than simply be present when the offence occurs. He needs to say or do something that assists or encourages the principal offender to commit that crime.
This means that to have aided and abetted by conveying support for the commission of the offence the accused must have done more than simply agreed with what the principal was doing. You must find that he communicated or attempted to communicate his support to the principal offender in a way, and I will take out the words ‘principal offender’ and I will use ‘Adam Hargrave’, because that is what you have to be satisfied of, right? You must find that he communicated or attempted to communicate his support to Adam Hargrave in a way that Adam Hargrave could have been aware of, and that he indicated his willingness to assist Adam Hargrave if required…
In respect of Ngoc Bui, the Crown say Ngoc Bui has demonstrated his support for Adam Hargrave and his actions by walking over to him and assisting him to unjam the gun that was misfiring. The description given by Andrew Johnston was that they were both mucking around with the gun after it had misfired, and that the next he saw the gun it was in Adam’s hands immediately after and he heard it fire again. That is the evidence that the Crown relies upon as demonstrating support and encouragement for the actions of Adam Hargrave in shooting Michael Daou.[48]
You do not have to be satisfied that Aaron Hargrave or Ngoc Bui, that their words or actions caused Adam Hargrave to commit the crime. A person can assist or encourage someone to commit an offence, even if that other person already intended to commit that offence.
You also do not need to be satisfied that Adam Hargrave was actually assisted or encouraged by either Aaron Hargrave or Ngoc Bui’s behaviour. As long as Adam Hargrave and/or Ngoc Bui, or both, endeavoured to assist and encourage in circumstances in which Adam Hargrave could potentially have been assisted or encouraged, then if that is so, that element would be met.
However, you must be satisfied that Aaron Hargrave and Ngoc Bui intentionally aided or abetted the commission of this offence of murder. That is, you must be satisfied that by doing what he did, in relation to the particular accused, either Aaron Hargrave or Ngoc Bui intended to help, encourage or convey support to Adam Hargrave to commit that offence.
This does not mean you have to find that Adam Hargrave or Ngoc Bui intended that Michael Daou would die, it will be sufficient if you find that Aaron Hargrave or Ngoc Bui, or both, intended to assist or encourage the principal offender to commit the conduct that ultimately caused that result.
I am not going to put any arguments to you in respect of this, the Crown have put forward why they say that you should be satisfied it is encouragement. The defence have not put any particular arguments to you because they say this conduct just did not happen. So there is nothing they can put to you, because they say this is just not true, this is a figment of Andrew Johnston’s imagination, he has made this up, so the first thing that you really have to be satisfied of is did this occur, did, in the case of Aaron Hargrave, he actually have a gun that he handed to Adam Hargrave?
In respect of Ngoc Bui, did he actually do anything to assist in the unjamming of that gun? Did that occur? Did that exist? That is really the fundamental issue in respect of this charge that you need to look at, because the defence have said to you Andrew Johnston is just making this up, he is telling lies.
So to summarise it. Before you can find Adam Hargrave or Ngoc Bui guilty of committing murder by aiding and abetting the prosecution must prove to you beyond reasonable doubt in respect of each accused person, firstly, that Adam Hargrave committed the murder of Michael Daou. Secondly, that Aaron Hargrave or Ngoc Bui, or both, whoever you are considering, knew of or believed in the essential circumstances needed to establish murder, and three, that Aaron Hargrave or Ngoc Bui intentionally assisted or encouraged Adam Hargrave to commit murder by either helping him, encouraging him or conveying their support.

[48]Emphasis added.

In the earlier part of these directions, her Honour directed the jury on the broader way in which the Crown put its aiding and abetting case. The later part of her directions could have been taken as limiting the Crown’s aiding and abetting case to the actions of Bui in walking over to Adam Hargrave and assisting him to unjam the gun that was misfiring. Following this part of the charge, Bui’s counsel submitted that if Daou was killed by the first shot, Bui could not be guilty of murder on the basis that he had aided and abetted Adam by attempting to fix the gun after it misfired. However, Bui’s counsel did not put it to the judge that the jury should be told that they could not convict Bui on the basis of aiding and abetting.

Her Honour then told the jury that:

In relation to aiding and abetting someone, you cannot aid and abet someone to do a crime that is already complete. So, if the Crown have not satisfied you in respect of this, that Michael Daou was still alive at the time, if you find that Johnston’s version of the evidence is correct, if the Crown have not satisfied you beyond a reasonable doubt that Michael Daou was still alive when Ngoc Bui allegedly fiddled with the gun and gave it back to, or it was taken back by Adam Hargrave, then you could not find him guilty of aiding and abetting, because you cannot murder someone who is dead.

On appeal, counsel for Bui raised the same issue that was addressed by defence counsel at the trial. It was argued that Bui could not have been found guilty on the basis that he had aided and abetted Adam Hargrave by fiddling with the gun and then handing it back, unless Daou was alive after Adam fired the first shot. Because the forensic evidence at trial did not establish which gunshot killed the victim and the jury could not be satisfied that he was alive following the first gunshot, it was not open to the jury to convict him on the basis that he aided and abetted Adam Hargrave in shooting the victim. Since some members of the jury might have found Bui guilty on the basis that he had aided and abetted Adam Hargrave by attempting to fix the misfiring gun, and that view could not be sustained, Bui’s conviction must be set aside.

Ground 4 fails. I take that view for three reasons. First, I consider that her Honour’s directions would have been understood by the jury as requiring them to consider all of the applicant’s conduct from the time the deceased was falsely imprisoned, when deciding whether he was complicit on the basis of aiding and abetting.

Secondly, even if the jury, or some members of it, had thought that they could only have regard to the applicant’s conduct in fiddling with the gun and giving it back to Adam when considering whether Bui was guilty of aiding and abetting, there is no reasonable possibility that any member of the jury could have convicted Bui on that basis. Whether Bui’s complicity as an aider of abettor was considered on a broad or a narrow basis, the trial judge’s jury direction was not productive of any miscarriage of justice. I am fortified in that view by the fact that Bui’s counsel did not ask the judge to direct the jury that they could not convict him on the basis of aiding and abetting because there was a reasonable doubt as to whether Daou was alive after Bui fiddled with the gun.

Thirdly, even I am wrong on either of these alternatives, I would apply the proviso, because I do not consider that there was any substantial miscarriage of justice.

As I have said, the original Crown case against Bui was either that Bui and Adam Hargrave agreed to kidnap and detain Daou and contemplated that really serious injury might be inflicted on him, or that he had aided and abetted Adam Hargrave in shooting the victim. On the evidence, the jury (or some members of it) may not have been satisfied beyond reasonable doubt that, at the time when the plan was made to recover the ecstasy tablets from Daou, Bui and Adam Hargrave planned to inflict really serious injury on him.

However, as her Honour made clear, the jury could find Bui guilty if they were satisfied that the scope of the original plan altered after Daou was brought back to the warehouse. Johnston’s evidence was that Daou was strapped to a chair, had his pubic hair burned, and powder from a fire extinguisher sprayed on him. Johnston also gave evidence that while he was in the office, he had heard Daou screaming, and that when he came out of the office, he saw Daou covered with blood. That evidence would have permitted the jury to find that after Daou was brought to the warehouse, the original plan had escalated to the point where Adam and Bui had agreed to inflict really serious injury on him. On that view of the facts, Bui’s acts of assistance and encouragement began well before he attempted to fix the misfiring gun and the Crown’s aiding and abetting case against Bui was really subsumed in the joint agreement case.

The jury (or some members of it) might also have found Bui guilty of aiding and abetting Adam Hargrave to commit the murder, because they were satisfied beyond reasonable doubt that Bui could ‘be reasonably seen as intentionally adopting and contributing to’ what took place in his presence.[49]
[49]R v Lam (2008) 185 A Crim R 453, 478.

On the basis of Johnston’s evidence, it would have been open to the jury to find that Bui’s assistance or encouragement to Adam Hargrave to murder Daou began well before Adam actually fired the gun. Johnston’s evidence was that Bui’s acts went beyond mere presence at the scene. He said that Aaron had a gun in his hand while Daou was being restrained and he heard a shot being fired. He also said that he saw Bui among the group which wrestled the victim to the chair to which he was tied, that Bui was present when Daou was assaulted and was loaded into the boot of the car and that Bui was standing nearby when the gun was handed to Adam.

In that respect, the circumstances of this case are similar to those in R v Debs & Roberts,[50] where two men who were about to conduct an armed robbery were accused of shooting and killing two policemen. One version of the Crown case was that each accused was guilty of murder because he had aided and abetted the other accused in firing the shot which killed the victim. Counsel for Debs argued that he could not be found guilty on that basis because he might have fired a shot after the victim had already been killed by the fatal shot fired by his co-accused Roberts. The Court of Appeal rejected that argument. Vincent JA (with whom Winneke P and Warren CJ agreed) said that:

The Director submitted in response that this complaint and, for that matter, all of the grounds relating to his Honour’s instructions concerning aiding and abetting and common purpose are artificial in the extreme. The artificiality, it was contended, is even more apparent when it is appreciated that the arguments assume the presence of each of the accused at the scene and that each of them fired shots. I agree.
Given that both were present and firing their weapons, as the Director argued before us, the evidence of commitment to the criminal enterprise was very powerful. If Silk was still alive at the time that Debs first fired, Debs would clearly be an aider and abettor. If Debs killed Silk then he would certainly have aided Roberts. If Silk had already died, then Debs in a graphic fashion could be seen to have demonstrated his existing commitment to the enterprise, particularly if they concluded, as they were entitled to do, that he also fired at Miller.[51]

[50][2005] VSCA 66.

[51]Ibid [327]-[328].

Whilst Bui did not fire at Daou, it would be equally artificial in this case to limit the act of aiding and abetting to Bui’s attempt to correct the misfiring gun immediately before it was fired and to ignore his involvement in the preceding events, including the assault on Daou. Bui’s conduct well before the gun was fired would have been a sufficient basis for the jury to infer that Bui had intentionally adopted and contributed to what occurred in his presence.

The fact that the gun was fired after Daou was dead would not have precluded the jury from drawing such an inference. In R v Clarke and Wilton,[52] the Full Court held that a jury could properly infer from the conduct of two accused after they had killed a child that they had previously had a common purpose to correct and silence the child by cruel beatings.[53] There is more recent authority to the effect that subsequent acts can provide the basis for an inference that a person was aiding and abetting an offender at an earlier stage of the events which resulted in the commission of the offence.[54] Thus, even if, contrary to my view, her Honour’s jury direction confined the aiding and abetting case to Bui’s act in fiddling with the misfiring gun, it did not result in any miscarriage of justice.
[52][1959] VR 645.
[53]Ibid 642 (Herring CJ, O’Bryan and Dean JJ).
[54]See, eg, R v Kitchin [2001] VSCA 66, [20] (Brooking JA).

Because counsel for the Crown apparently accepted the proposition put forward by the defence, her Honour was prevailed upon to give the direction about aiding and abetting which is described above. A hypothetical juror who took the view that this was the only basis on which Bui could be found guilty of aiding and abetting would have had to have been satisfied that Daou was still alive when the shot was fired. But there was no evidence on which a juror could have found beyond reasonable doubt that Daou was still alive when the shot was fired. In such circumstances, no juror who followed her Honour’s direction could have found Bui guilty of aiding and abetting Adam Hargrave.

Further, such a juror would also have had to reject Johnston’s evidence about Bui’s acts of encouragement and assistance prior to the shooting, but to accept his evidence that Bui fiddled with the gun and handed it to Adam Hargrave, who then fired the fatal shot. It is completely unrealistic to suppose that a member of the jury would have engaged in this process of reasoning.

It follows that a juror who had accepted Johnston’s version of events beyond reasonable doubt, would have had to find that Bui was complicit in the murder, either because Bui had agreed with Adam Hargrave to kill or inflict really serious injury on Daou, or because he had encouraged or assisted him to murder Daou before Bui fiddled with the gun. Hence, no miscarriage of justice occurred, even if it is assumed that her Honour gave an incorrect jury direction.

Finally, even if the views expressed above are incorrect, I consider that it is appropriate for this Court to apply the proviso in s 568(1) of the Crimes Act 1958 (Vic).[55]
[55]See now Criminal Procedure Act 2009 (Vic), s 276.

In Weiss v The Queen,[56] the High Court held that in deciding whether there has been a substantial miscarriage of justice, an appellate court must assess the evidence and, after making due allowance for the natural limitations which confront an appellate court, decide whether it has been proven beyond reasonable doubt that the accused was guilty of the offence on which the jury returned its guilty verdict.[57] I have examined the whole of the evidence in the case. As the High Court said in Weiss, the fact that the jury returned a guilty verdict must be taken into account in the appellate court’s assessment of the whole record of trial.[58] Having regard to all of the matters discussed above and to the jury verdict, I do not consider that there was a substantial miscarriage of justice.
[56](2005) 224 CLR 300 (‘Weiss’).
[57]Ibid 316−7.
[58]Ibid 317.

For these reasons, ground 4 is not made out.

Ground 5

Ground 5 alleges that that the jury’s verdict is unreasonable or cannot be supported having regard to the evidence. The particulars of that ground state that Aaron Hargrave’s acquittal removed a step in the process of reasoning that was essential to Bui’s conviction ‘on the basis of extended common purpose’. I note that this Court has emphasised that where a complaint is made that a verdict is inconsistent with an acquittal on another count, it should be the subject of a discrete ground, rather than raised under the ground that the verdict is unsafe and unsatisfactory.[59]

[59]MG v The Queen (2010) 200 A Crim R 433, 446; Svajcer v The Queen (2010) 200 A Crim R 587, 596.

Counsel for Bui referred to Johnston’s evidence that Aaron Hargrave had produced a gun when Daou was brought back to the warehouse, had been part of the group which had tied the victim to the chair and assaulted him and had given Adam Hargrave the gun used to shoot Daou. Counsel submitted that this evidence was indispensable in establishing the Crown case that the scope of the agreement escalated over time. Counsel contended that it was not open to the jury to reject Johnston’s evidence about Aaron Hargrave’s participation in the crime and nonetheless find that the scope of the joint enterprise escalated in the manner advanced by the Crown. He therefore submitted that Bui’s conviction was factually inconsistent with the acquittal of Aaron Hargrave, because the two verdicts could not logically be reconciled.

Conclusion on ground 5

Bui must have been found guilty by the jury either on the basis that he and Adam Hargrave entered into a joint enterprise to kidnap and detain or falsely imprison Daou and to inflict really serious injury upon him, or on the basis that he aided and abetted Adam Hargrave by encouraging or assisting him to murder Daou. The fact that other co-accused, including Aaron Hargrave, were acquitted, did not create any legal barrier to the conviction of Bui, on either of these bases.

The question we must consider is whether Aaron Hargrave’s acquittal on murder was factually inconsistent with the jury verdict that Bui was guilty of that offence and whether on the whole of the evidence, it was reasonably open to a properly instructed jury to be satisfied beyond reasonable doubt that Bui was guilty of murder.[60]
[60]M v The Queen (1994) 181 CLR 487.

In their joint judgment in MacKenzie v The Queen,[61] Gaudron, Gummow and Kirby JJ said that the test for determining whether verdicts are factually inconsistent is one of logic and reasonableness.[62] An appellant who alleged factual inconsistency bore the onus of showing that ‘no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion’.[63] Their Honours said that the respect accorded by the law to the function of the jury made courts reluctant to accept that verdicts were factually inconsistent:

If there is some evidence to support the verdict said to be inconsistent, it is not the role of the appellate court, upon this ground, to substitute its opinion of the facts for one which was open to the jury.[64]

[61]MacKenzie v The Queen (1996) 190 CLR 348.

[62]Dawson and Toohey JJ agreed on this issue.

[63]MacKenzie v The Queen (1996) 190 CLR 348, 366, citing R v Stone (Unreported, England and Wales Court of Criminal Appeal, 13 December 1954, Devlin J).

[64]MacKenzie v The Queen (1996) 190 CLR 348, 367.

An apparent inconsistency might simply reflect the jury’s obedience to the trial judge’s direction to consider each count separately and the failure of the jury to be satisfied beyond reasonable doubt of the facts relied upon by the Crown to prove a particular offence.

Nevertheless, their Honours acknowledged that:

a residue of cases will remain where the different verdicts returned by the jury represent, on the public record, an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty.[65] More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.[66] It is only where the inconsistency rises to the point that the appellate court considers that intervention is necessarily required to prevent a possible injustice that the relevant conviction will be set aside.[67] It is impossible to state hard and fast rules. ‘It all depends upon the facts of the case.’[68]

Further, under s 323 of the Crimes Act 1958 (Vic) ‘a person who aids, abets, counsels or procures the commission of an indictable offence may be tried or indicted and punished as a principal offender’. If the alleged conspiracy was proven, this provision allowed Garry and Adam Hargrave to be tried as principal offenders, even if the actual murder was to be carried out by another person. The reference to the commission of an offence ‘by them’, that is the murder of McDonald, is apposite to address this situation.

Ground 4

Ground 4 alleges that the trial judge erred in directing the jury that Adam and Garry Hargrave could be convicted of the offence of conspiracy to murder, in circumstances where the Crown’s evidence suggested at its highest that Hargrave and his son agreed that Ms McDonald would be murdered by someone else and had not agreed to carry out the murder themselves.

During the course of the hearing, her Honour raised with counsel the question whether Garry and Adam Hargrave could be guilty of a conspiracy to murder McDonald, where they had agreed that someone else would carry out the murder. She drew the attention of counsel for each of Garry and Adam Hargrave to a passage in the bench notes in the Criminal Charge Book, which states that:

The prosecution must establish that one of the conspirators would commit the principal offence. This element will therefore not be satisfied if the conspiracy envisages that the offence would be committed by a third party.[143]

[143]Victorian Criminal Charge Book, 6.1.1 [20].

Counsel for each of the men submitted that as a matter of law, an agreement that a third party would be procured to kill McDonald could not provide the basis for the men’s conviction of conspiracy to murder.

Ultimately, her Honour rejected that submission. She said that:

In this case the prosecution alleged that Garry and Adam Hargrave formed an agreement to murder Kylie McDonald. The means by which this murder was to occur, the Crown submit, was by the employment of a person to murder Kylie McDonald. If you employ someone to commit the crime of murder you are equally guilty of that crime … As I indicated to you there are times that the law holds you responsible for the actions of another person, and if you find there was a concluded agreement between Garry and Adam Hargrave that they would employ someone to murder Kylie McDonald, that would be one of the times that the law would hold a person responsible for the crime committed. The crime that they are charged with is not the employment of a person to commit the murder, but the agreement that the Crown says they have made to have Kylie McDonald murdered.

Her Honour went on to tell the jury that they had to be satisfied that the men had reached a concluded agreement that they would pursue the course of conduct of having McDonald murdered.

On appeal, counsel for Hargrave submitted that her Honour was incorrect in rejecting the submission made at trial. In support of that submission, he relied on the passage from the Victorian Criminal Charge Book cited above and on the decision of the Western Australian Court of Criminal Appeal in Ross v the Queen.[144]
[144](1987) 29 A Crim R 77 (‘Ross’).

Conclusion on ground 4

In my opinion, this ground is not made out. As her Honour correctly directed the jury, a conspiracy arises when two or more persons agree to carry out unlawful acts, in this case the act of murder. The conspiracy is complete once a concluded agreement is reached.[145] Section 321 of the Crimes Act 1958 (Vic) established the statutory offence of conspiracy. That section provides as follows:

(1) Subject to this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which will involve the commission of an offence by one or more of the parties to the agreement, he is guilty of the indictable offence of conspiracy to commit that offence.
(2) For a person to be guilty under subsection (1) of conspiracy to commit a particular offence both he and at least one other party to the agreement—
(a) must intend that the offence the subject of the agreement be committed; and
(b) must intend or believe that any fact or circumstance the existence of which is an element of the offence will exist at the time when the conduct constituting the offence is to take place.

[145]DPP v Fabriczy [2010] VSCA 334, [14]−[16].

Counsel for Hargrave submitted that Ross was authority for the proposition that a person could not be convicted of conspiracy, in circumstances where the substantive offence was not to be committed by any party to the conspiracy. No reference was made in that case to a Western Australian provision equivalent to s 323. But in any event, the case is not authority for the proposition for which Hargrave’s counsel contended.

In Ross, it was alleged that the appellant and two other accused, McNeil and Peel, had conspired together to sell or supply a quantity of heroin to another person, who was in fact an undercover police officer. It was conceded by the Crown that a third party sold or supplied the heroin to the police officer.

The Crown relied on s 33(2) of the Misuse of Drugs Act 1981 (WA), which provided that a person who conspired with another to commit an indictable offence was guilty of an indictable offence. Section 6(1) of the Act provided that ‘a person who ‘sells or supplies…to another, a prohibited drug’ commits an indictable offence. The Court noted that this was in effect an invitation to interpret s 33(2) of the Act to include a conspiracy which was not to sell or supply the drug to the consumer but to assist a third party to do so.

The Crown submission was rejected on the basis that:

If there was an offence the subject of the agreement it was not the offence of selling or supplying the drug to [the police officer]. The agreement which the parties reached was nothing more than an agreement to assist [the police officer] in being put in contact with somebody who would sell or supply the drug to him.[146]

[146]Ross v The Queen (1987) 29 A Crim R 77, 79.

The case for the Crown was never put on the basis that one of the alleged conspirators had supplied the drug to the undercover police officer.

The decision in Ross does not assist the applicant because it turned on the interpretation of the particular legislative provision in s 33(2). Further, it was not argued that the accused persons aided and abetted the supplier of the drugs to provide heroin to the undercover policeman. Nor was any reference made to a provision equivalent to s 321 of the Crimes Act 1958.

In Rolls v The Queen; Sleiman v The Queen,[147] this Court recently held that s 321 of the Crimes Act 1958 did not require a person who had entered into an agreement to commit a criminal offence to actively participate in the commission of that offence before they could be convicted of conspiracy to commit that offence.[148] In a considered obiter dictum, Weinberg JA said that:
[147][2011] VSCA 401.
[148]Ibid [23] (Weinberg JA), [76] (Harper JA), (Maxwell P agreeing).

Section 321 does, of course, require proof that the parties have agreed that at least one of their number will participate actively in the implementation of the agreed plan. In other words, it will not be sufficient if the agreement is to be carried out entirely by some third party, with none of the alleged conspirators playing any active role.
In Nirta v The Queen,[149] the Full Court of the Federal Court, sitting on an appeal from the Supreme Court of the Australian Capital Territory, was confronted with a case whereby the agreement reached between the parties did not involve any of them personally performing any of the acts required to achieve the object of the alleged conspiracy. The Court held that, in such circumstances, there could be no conviction for an offence under s 86 of the Crimes Act 1914 (Cth). Jenkinson J said:
[149](1983) 51 ALR 53.
A conspiracy to commit an offence is, in my opinion, not committed unless there is an agreement that acts shall be done by a person who, or by several persons each of whom, is party to that agreement …[150]

Nirta was subsequently criticised by Professor Peter Gillies as being unduly restrictive.[151] He wrote:
It is well established in respect of the substantive criminal law that D may incur liability as a principal where he or she acts through an innocent agent. There seems to be no logical reason why two or more persons cannot incur liability for conspiracy by virtue of an agreement to commit a crime or other unlawful act through an innocent agent, or for that matter through a person who commits this crime or other unlawful act with the knowledge of the circumstances rendering this act a crime or other unlawful act.[152]

In other words, Gillies argued that the requirements of the statute could be met even though none of the parties to the conspiracy was to perform any act in furtherance of it, save through an ‘agent’, innocent or otherwise.[153]

[150]Ibid 64, citing DPP v Nock [1978] AC 979.

[151]Peter Gillies, The Law of Criminal Conspiracy (Federation Press, 2nd ed, 1990).

[152]Ibid 37−8 (citations omitted).

[153][2011] VSCA 401, [24]–[27].

It is not clear that s 321 requires proof that the parties have agreed that at least one of their number will participate actively in the implementation of the agreed plan. The Second Reading Speech for the Bill introducing that section stated that:

the offence of conspiracy…serves the vital purpose of enabling criminal enterprises to be nipped in the bud… It is also invaluable in rendering persons who plan and organize crimes, but take no part in the actual commission of them, liable to prosecution.

Clearly, Parliament intended that persons who arrange for a third party to commit a crime (in this case murder) should be liable to prosecution for conspiracy.

However, even if s 321 does require one of the parties to the conspiracy to participate actively in the implementation of the plan, this does not mean that one or more parties to the agreement must actually perpetrate the murder. What s 321 requires is that one or more parties to the conspiracy must be involved in the commission of the offence which the accused have allegedly conspired to commit.

The relevant offence in this case is the procuring of a person to commit the murder. Both parties to the conspiracy agreed that the murder should be perpetrated through an agent. There was evidence indicating that the agent would be paid by one of them. Section 323 of the Crimes Act 1958 (Vic) (referred to at [223] above) provides that a person who counsels or procures the commission of an indictable offence may be presented and punished as a principal offender. It follows that, in these circumstances, the agreement related to an offence to be committed by Adam and Garry Hargrave, through the medium of their agent.

This ground of appeal is not made out.

Ground 5

Ground 5 alleges that the verdict on the conspiracy count was unsafe and unsatisfactory in light of the limited evidence against Hargrave.

In his closing address at the trial, Hargrave’s counsel argued that the conspiracy count against his client had not been made out beyond reasonable doubt and that the Crown’s interpretation of the phone calls was simply speculative. It was said that there was no basis for the assertion that the discussion of ‘the girl’ having to ‘be on holiday’ meant that the girl should be killed. There were other phone calls between Adam and Garry Hargrave when the same expression was used in its ordinary sense.

Counsel also pointed out that McDonald had given evidence at the trial that Hargrave had spoken to her about going on a holiday and had offered her money to do so and that this conversation took place after the murder of Daou. Further, when Johnston was interviewed by the police, he had said that he was not present when any plan was discussed to get rid of McDonald.

Defence counsel also argued that no reference had been made in any of the telephone conversations to murdering or killing McDonald, even though reference had been made to such matters in the discussion of the activities of the ‘Cambodian brothers in Sydney’. Further, after call 290, when Hargrave talked to Bui about what the girl had been saying, there was no evidence that Hargrave had done anything to follow up what was discussed in that call. The reference in the third call about the cost of the business trip could also be interpreted in a number of different ways.

In deciding whether a verdict is unsafe or unsatisfactory, the court must ask itself whether, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In my opinion, it was open for the jury to convict Hargrave on Count 4, on the basis of the intercepted telephone calls.

In reaching that conclusion, I rely on the following:

·the reference in the call on 4 January, the day that The Age contained a report of the murder to, ‘that girl’ not being around and having to be on holiday;
·the reference in the call on 8 January to ‘getting rid of the girl’, which was immediately followed by Adam’s allusion to ‘Cambodian brothers’ who ‘do murders…all the time’ and ‘knock’ witnesses so that murder charges are dropped;
·the reference in the same call to the need to ‘do something’ about the fact that McDonald was going around and mentioning his name and the proposed statement to Bui that ‘she needs to go now’;
·the reference in the same call to the proposition that the girl should be taken away somewhere and that ‘they’ll never find it again’;
·the reference in the call on 9 January to the $30,000 which was to be paid and the later question in that call asking about whether she had been found; and
·the reference in the call made by Adam Hargrave to Johnston on 9 January 2007, in which Adam asked Johnston about the name of an unidentified person’s boyfriend, the boyfriend’s name being the same as that of McDonald’s boyfriend.

For these reasons, I would refuse the application for leave to appeal against conviction.

Hargrave’s Appeal against Sentence

Hargrave seeks leave to appeal against the sentence of six years’ imprisonment imposed on him for assisting an offender and nine years’ imprisonment for conspiracy to murder (Count 4). He also seeks leave to appeal against the total effective sentence of 11 years’ imprisonment and the non-parole period of seven years fixed by her Honour.

Hargrave’s grounds of appeal allege that the sentencing judge failed to have sufficient regard to his ill health, and to the principle of parity.

I turn first to ground 1, which complains that her Honour gave insufficient weight to his ill health. This ground is, in effect, a particular of a claim that the sentences imposed were manifestly excessive

In her reasons, her Honour set out a detailed history of Hargrave’s prostate cancer. She said the following:

In relation to the status of your health as at the time of the plea, that being in May of 2009, Dr Edward Morgan from the Melbourne Assessment Prison gave evidence before me. His role has been your day-to-day medical care, including co-ordinating specialist appointments and managing your day‑to‑day medications, which include hormonal implants, daily tablets, all of which are used to suppress the growth of the cancer. Every three months a PSA of prostate specific antigen test is performed. It is considered a marker of the disease. Your level has remained fairly constant until September or October of 2008 when your levels began rising again. You were placed on additional medication and your prostate levels fell.
Dr Morgan said that he had spoken to your urologist, Mr Jeremy Goad, who expressed surprise that you were doing as well as you were. He said that Mr Goad expected that you would have had a much poorer prognosis because you have basically had a very aggressive form of prostate cancer and that there was always the real risk of the progressive and invasive disease returning.
He referred to the figures given by Dr Rick Milner, as to life expectancy rates in general terms, that persons with a prostate cancer - those being based on studies of men with similar conditions to yours - those statistics were that 97% survive one year, 68% survive five years, 49% 10 years, and 30% 15 years. There is a prospect that you may undergo a further re-section of the prostate which may alleviate some of your symptoms, which include blood in the urine and difficulty in passing urine.
In October 2008, you had a bone scan and a CT scan which showed there had been no metastatic spread beyond the prostate. It was noted in cross‑examination that you have the full specialist services of St Vincent’s Hospital available to you, and day-to-day care from doctors at the prison, who also liaise with the specialists in an attempt to manage your health as best you can.
Your counsel at the conclusion of your plea hearing on 8 May submitted that he wished to make further submissions in respect of providing up-to-date reports from your specialist and submissions with authorities on the question of the proportion of life remaining and how that impacts upon sentence….
On 1 September a report was presented which had been prepared by your previous specialist, Dr Jeremy Goad. He related your history again and stated that he has not seen you since his last review on 7 September 2006 at the Peter McCallum Cancer Centre. He is however, the Director of Urology at St Vincent’s, and your condition is cared for by the registrars at that hospital.
As a result of his citing of your materials, he was able to state that your PSA has slowly increased during 2008 to around 6.7, but with treatment has reduced again to around 3. You have recently had a CT scan of your abdomen and pelvis which were negative for metastatic disease, and you do not require additional therapy at this stage. Dr Goad, provided a further report also dated 31 August 2009 as to your prognosis, which I will quote in full.
The prognosis of this man is difficult to predict. When he presented 10 years ago Garry had a higher grade cancer. Graded as 9 out of 10 in terms of severity. Despite potentially a curative radiotherapy he has confirmed recurrent cancer as shown by the active disease re‑sected at the operation I performed in 2006. The hormone therapy is essentially a palliative measure but can be effective in producing remission for a decade and rarely longer than this.
Remission from hormone therapy is gauged by the PSA level. Excellent remission is shown with a PSA of less than 1. This man showed an initial good response but evidence of failure and development of hormone resistant disease as shown by the rises in the PSA level between 3 and 6.
On the other hand he has not progressed to a metastatic, or secondary sites of disease, cancer, as would usually have been expected. The best guess as to when he would develop secondary disease, in my opinion, would be between two and four years time.
He should have regular imaging perhaps every six months along with a PSA test, and this would aid with timing for additional treatment with chemotherapy. Once again, this treatment is palliative only and has been shown to improve survival by a number of months only, on average. In my opinion Garry is likely to die from his prostate cancer within five to seven years.[154]

[154]Reasons [59]−[66].

Her Honour accepted that Hargrave was suffering from a grave illness that might well be terminal within the next five to seven years of his life. She also accepted that his ill health would make life in prison more difficult for him.[155]
[155]Ibid [67].

As her Honour said, Hargrave’s guilty plea was at the ‘latest possible stage’ and, in her view, ‘gave no indication of any remorse’ on his part. Accordingly, her Honour stated that Hargrave’s plea was neither of great utilitarian benefit, in a trial that was almost complete, nor any indicator of remorse.[156]
[156]Ibid [38].

Hargrave’s level of moral culpability for the offending was very high. In particular, the conspiracy to murder was a chilling, premeditated and appalling offence. Hargrave contemplated the murder of a young woman, simply to conceal the events of the evening of 17 November.

In light of these matters, I do not consider it reasonably arguable that her Honour should have fixed lower individual sentences or a lower total effective sentence because of Hargrave’s ill health. However, in my opinion, the non-parole period of seven years’ imprisonment fixed by her Honour was manifestly excessive having regard to Hargrave’s limited life expectancy.

I now turn to the parity ground which relates primarily to the sentence of 9 years’ imprisonment imposed on Count four. Adam Hargrave was sentenced to 10 years’ imprisonment on that count. Counsel for Hargrave argued that there should have been a greater differential between the sentences imposed on Garry and Adam Hargrave for that offence, because the alleged motivation for Adam’s offending was to cover up his involvement in Daou’s murder. Hargrave also contends that he should obtain the benefit of his acquittal on Counts 1, 2 and 3. Accordingly, he argues that her Honour gave insufficient weight to the principle of parity.

In my opinion, the parity ground is not made out. There was not a great deal of difference between the moral culpability of the two offenders in relation to Count 4. As her Honour noted in her sentencing reasons, at the time Hargrave was arrested, he was ‘actively seeking to locate McDonald for the purpose of killing her or having her killed’.[157] Her Honour correctly concluded that this was a ‘very serious example of conspiracy to murder’.[158]
[157]Ibid [36].
[158]Ibid.

As her Honour said, Hargrave did nothing to dissuade his son and indeed, actively encouraged him, in his plans to murder a potential witness. Her Honour commented that Hargrave ‘took an active part and you were Adam’s father – the

older and more experienced voice of reason should have been yours and it was not’.[159] Further, as her Honour found, Hargrave’s participation in assisting his son to avoid police detection:
was not limited to one act but was an ongoing series of acts over a period of time, all of which were aimed at impeding or preventing the investigation of this murder and the apprehension of your son.[160]

[159]Ibid [41].

[160]Ibid [33].

In my view, the judge correctly concluded that despite playing different roles, Hargrave and his son were ‘both very culpable’ in relation to that offence.[161]
[161]Ibid [41].

In light of my conclusion that the non-parole period was manifestly excessive because of Hargrave’s prostrate cancer, I would allow the appeal against sentence. I would re-sentence Hargrave to six years’ imprisonment for assisting an offender and nine years’ imprisonment for conspiracy to murder (Count 4) and cumulate two years of the sentence imposed on the count of assisting an offender on the sentence imposed on Count 4. This amounts to a total effective sentence of 11 years’ imprisonment. I would fix a non-parole period of five years.

Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I declare that if Hargrave had not pleaded guilty to the count of assisting an offender, I would have sentenced him to a term of eight years’ imprisonment for that offence. I would have ordered that three years of the sentence imposed on that count be served cumulatively on the sentence imposed on the count of conspiracy to murder, making a total effective sentence of 12 years’ imprisonment, with a non-parole period of 7 years.

REDLICH JA:

I have had the advantage of reading in draft the reasons of Neave JA in relation to the applications of Bui and Hargrave. I agree that Bui’s applications for leave to appeal against conviction and sentence should both be refused for the reasons given

by Neave JA. I also agree that the application of Hargrave for leave to appeal against conviction should be refused for the reasons given by Neave JA. I also agree that Hargrave's application for leave to appeal against sentence should be granted, the appeal allowed and the applicant resentenced as Neave JA proposes.

HANSEN JA:

I agree with Neave JA.

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[2011] VSCA 404

7 December 2011