Ho v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0181

THANG MINH HO	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2025
DATE OF JUDGMENT:	30 June 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 150
JUDGMENT APPEALED FROM:	[2024] VSC 162 (Kaye JA)

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CRIMINAL LAW – Appeal – Conviction – Applicant convicted of manslaughter – Death at cannabis factory in which applicant previously employed – Applicant pleaded guilty to cultivating commercial quantity of cannabis before jury panel – Deliberateness of stab wound causing death major issue in trial – Whether failure to seek a good character direction in a particular respect as to absence of convictions for violence was rational forensic decision – Whether failure to seek good character in a particular respect direction caused a substantial miscarriage of justice – Application for extension of time in which to seek leave to appeal granted – Leave to appeal granted – Appeal allowed – Retrial ordered.

Evidence Act 2008, s 110; Jury Directions Act 2015, ss 12, 14, 16.

Madafferi v The Queen [2017] VSCA 302; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, followed.
Simic v The Queen (1980) 144 CLR 319; [1980] HCA 25; Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32; Saw Wah v The Queen; (2014) 45 VR 440; [2014] VSCA 7, discussed.

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Counsel
Applicant:		Mr P Kounnas
Respondent:		Mr L McAuliffe
Solicitors
Applicant:	Giorgianni & Liang Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
TAYLOR JA
BOYCE JA:

Introduction and overview

The applicant was charged on indictment with one count of cultivating a commercial quantity of cannabis and the manslaughter of Cuong Van Le. On arraignment before the jury panel he pleaded guilty to the cultivation charge. The jury empanelled in the trial convicted him of manslaughter.
The two charges were factually linked. The cannabis was cultivated in a factory in Epping. The applicant had helped to establish the works and thereafter tended some of the plants. Upon ceasing work at the factory, the applicant considered that he had not been properly remunerated. He subsequently took a number of measures to make his displeasure known. On 28 April 2021 the applicant made a phone call to Chuan Nguyen (a senior man in the drug organisation) threatening to destroy the factory before attending the factory in person. Mr Le, who also tended the plants, and Hai Pham, a more senior employee, were present at the factory. The applicant knocked loudly on the roller door. Mr Pham hid. Mr Le went to the glass door adjacent to the roller door holding a knife ordinarily used to tend the cannabis plants. Upon Mr Le opening the glass door the applicant entered and a physical altercation occurred, during which the applicant stabbed Mr Le to the upper left thigh. It was a through and through injury of the quadriceps muscle with anterior wall transection of the femoral artery and vein. The wound tract was 9.5 cm in length. The entry point was to the rear of Mr Le’s thigh. The applicant removed the knife from the wound. He departed the premises with the knife and later disposed of it.
CCTV footage tendered at the trial established that the applicant was inside the factory for the 20 seconds between 10:39:26 and 10:40:03 am.
Mr Pham did not see the altercation. He had heard the applicant swearing and also Mr Le calling his (that is, Mr Pham’s) name. When the voices stopped he emerged from hiding and found Mr Le lying next to the glass door and a large amount of blood. Mr Pham telephoned Mr Nguyen. Together they took Mr Le to Sunshine Hospital. Mr Le was pronounced dead on arrival.
The two major issues in the applicant’s trial were whether it could be proven beyond reasonable doubt that the stabbing was deliberate and the applicant had not acted in self-defence.

Extension of time and proposed grounds of appeal

The applicant seeks an extension of time in which to seek leave to appeal against conviction. The proposed grounds of appeal are:
1.A substantial miscarriage of justice occurred because defence counsel did not request from the trial judge a ‘good character’ direction.
2.A substantial miscarriage of justice occurred because the prosecutor, in his closing address, suggested to the [j]ury that the [applicant]:
a.Ought to have given a fuller explanation of the incident in his record of interview, contrary to the burden of proof; and
b.Ought to have known that he stabbed the deceased ‘through and through’ which has no foundation in either the record of interview or the expert evidence of Dr Parsons.
The principles governing applications for extensions of time in which to seek leave to appeal are uncontroversial. As summarised in Madafferi v The Queen,[1] the Court must determine what the interests of justice require in the particular case by considering the reasons for the delay and the merits of the proposed appeal.[2]
[1][2017] VSCA 302 (‘Madafferi’).
[2]Madafferi [2017] VSCA 302, [11].
Here the delay is adequately explained in the affidavit of the applicant’s solicitor, Anh Liang, affirmed 23 September 2024. As we have concluded for the reasons that follow that proposed ground 1 must succeed, the interests of justice require the application for an extension of time to be granted. We would grant the application for leave to appeal and allow the appeal on ground 1.
The trial
In light of the discrete nature of the proposed grounds it is unnecessary to summarise the entirety of the evidence given in the trial. The following matters are relevant.

The stab wound

Evidence as to the stab wound sustained by Mr Le was given by the pathologist, Dr Sarah Parsons.
Dr Parsons conducted an autopsy on the deceased on 29 April 2021. There was a stab wound to the left leg with a through and through injury of the quadriceps muscle with a transection of the anterior wall of the femoral artery and femoral vein. A stab wound is caused by a sharp instrument, in this instance, a knife. It is usually more deep than wide. The phrase ‘through and through’ meant that there was an entry and exit wound. The wound tract was 9.5 cm. That meant that the blade was at least 9.5 cm in length. Dr Parsons made a secondary finding of stenosis of the left anterior descending coronary artery. The stab wound was the cause of death. The likely mechanism of death was exsanguination or loss of blood. Dr Parsons also said that no defensive-type injuries were observed.
In the course of her examination in chief Dr Parsons explained photographs taken during the autopsy which depicted the entry wound on the back of the thigh and the exit wound on the front.
In cross-examination Dr Parsons said that assessment of the degree of force with respect to stab wounds is difficult because the ability to undertake research involving the infliction of sharp force injuries to cadavers is necessarily constrained. The limited research done indicates that unless a blade hit or passed through bone, the same force used in inflicting the injury would also allow the blade to travel through the body. Accordingly, Dr Parsons said that she was not able to give an opinion as to the degree of force used to create the stab wound to Mr Le.

The call to the Police Assistance line

Evidence at the trial established that on 2 May 2021 the applicant contacted the ‘Police Assistance line’. The telephone call was recorded. It was played to the jury. In it the applicant said, with the assistance of an interpreter, that he had been in a fight where the other person was holding a knife. By accident, the knife hit the other person’s leg. He thought it was okay and left, but had just heard that the other person died. The applicant said that he was calling to let police know that he was busy with personal things but would present at a police station on Tuesday (3 May 2021). The police operator told him it did not work like that. When asked, the applicant provided his name, phone number, date of birth and address correctly. He said that the latter was a temporary address.

The record of interview

The applicant was arrested on 3 May 2021 as he was leaving his lawyer’s office. He was taken to Spencer Street police station where he told police he was tired. He was provided with food and the opportunity to rest overnight. The following day, on 4 May 2021, he participated in a record of interview (‘ROI’) with the assistance of a Vietnamese interpreter.
The applicant explained his disagreement with Mr Nguyen and Mr Pham over money he said he was owed after he stopped working at the cannabis factory. He said that two days prior to the incident he had received a phone call from Mr Le (whom he referred to as ‘Cuong’) in which he was told that Mr Nguyen and Mr Pham would replace him and no longer allow him on the premises. The applicant said
On the Wednesday that Cuong died, I didn’t know that he had – but I didn’t know that he had died, I came to this place and I noticed that there were two cars parked in this area. And then I realised that they had already called someone in to replace me. And I parked my car outside in the street. I parked out in the street near the gate, I parked right there and I walked in. I wanted to ask – I wanted to ask for one more final time whether they were gunna pay me or not. But I – but I – but I saw – but I saw no one there so I went to this rolling door and I knocked on the door. Then Cuong came out and said what are you doing causing so much noise. Cuong was holding a knife in his hand. It’s – it’s – it’s – it’s a knife that we use to, you know, cut and prune things – small things. …
Cuong was holding the knife on this hand and opened the door with his hand. He used this the same – he opened the door with this hand to let me in. On the other hand he was holding the knife and he said to me, ‘what are you doing here?’ Cuong then said to me that both Chuang (sic) and Hai had forbidden me to come here again. I notice that he was holding the knife in his hand but that was normal but I felt that I – there was some – an element of danger to myself, so I put my hand – grabbed his hand and I said, ‘what you are – what are you going to – what are you going to do? Are you going to abscond from paying my – avoid paying me or what?’
I grabbed hold of it with this hand. The other hand I placed near his top, the shirt. And then he twisted my arm and twisted downward …
The applicant later said
…I grabbed his hand with the knife. The other – with the other hand I got hold – I got hold of his top and he used his other hand and – and he used his other hand to grab hold of my hand like this. With this hand he was holding the knife. We struggled like this. We fall down he bends down. My – my – my purpose was to – my purpose was – my purpose was to remove the knife and we struggled a bit and I think the knife touched my inner thigh at one stage. And we struggled for a short while.
Later again the applicant said
… I first grabbed his hand that was holding his knife because I thought that might be dangerous to my safety. … But he grabbed hold of my hand and twist it around and then we struggled like this. At the time I noticed we struggled for a bit and I think the knife somehow ended up touching my inner thigh and then his – his grip on the knife loosened and I got hold a knife (sic) and I noticed that there’s a little bit – I was bleeding a little bit. And I went outside and got into my car and drove home.
These explanations were accompanied with a physical demonstration.
The applicant then said that about 30 or 40 minutes later, after he had calmed down, he returned to the factory and saw a lot of blood. It made him wonder if Mr Le was alright, but he thought it best to leave the scene as it was. He said he covered the scene with three pieces of plasterboard ‘to preserve its state’.
The applicant said that two days later he was alone at a café and overheard other people saying that a Vietnamese man who had been growing cannabis had died after being stabbed. The following morning he prayed at a pagoda. That motivated him to make a report. He rang the Police Assistance line from the pagoda. He later made an appointment to see a lawyer (for 3 May 2021). The applicant said
At the beginning, I didn’t think there was a death. I – I thought that if there was an injury, a – a wound to the – the leg, it’ll just be a wound.

The prosecutor’s address

In large measure the prosecutor’s address focussed on the twin issues in dispute in the trial.
As to the deliberateness of the stab wound, the prosecutor said that aside from the account of the applicant in the ROI there was no eye witness account of how the injury was inflicted. Accordingly, it was argued, the jury should look to the surrounding circumstances to draw a conclusion as to the manner in which the wound was inflicted. The prosecutor nominated those circumstances as including why the applicant went to the factory, what he expected to do upon arrival, the nature of the injury itself and the applicant’s actions in the aftermath.
The prosecutor made plain that the Crown did not argue that the applicant went to the factory with murderous intent or intent to harm. Rather, it was suggested that the applicant went with a grievance that he had been ‘dudded’ out of what he thought he was owed. The jury were invited to conclude he was angry from the banging on the roller door, evident from the CCTV footage, and the swearing and shouting heard by Mr Pham. The prosecutor said that given the brevity of the incident the injury must have occurred shortly after Mr Le opened the door. The applicant himself said in the ROI that Mr Le was only ‘holding’ a knife. The evidence of Dr Parsons was that the injury was a stab and not an incised wound. The prosecutor said the wound was neither a ‘slight penetration’ nor a ‘moderate insertion’ of the knife. Rather it was a significant through and through injury which passed through the full thickness of Mr Le’s thigh and out the other side. The prosecutor suggested that such an injury indicated that it had been deliberately and purposefully inflicted. The direction of travel of the wound and the absence of defensive injuries to Mr Le’s hands were also highlighted. The prosecutor argued that the struggle described by the applicant in his ROI, where the two men were face to face, was inconsistent with the single wound being a through and through injury inflicted from the rear of Mr Le’s leg.
The actions of the applicant in pulling the knife out in the aftermath of the struggle were also highlighted by the prosecutor as bearing on the deliberateness of the wound. The prosecutor argued that the combination of Mr Pham’s evidence as to where he found Mr Le and the location where the blood was later observed meant Mr Le must have fallen where he had stood. The prosecutor invited the jury to find that Mr Le ‘pretty much hit the ground immediately’ and ‘would have been bleeding pretty heavily soon thereafter’. That the applicant neither rendered assistance nor sought help but, knowing there were no eye witnesses, left the scene with the knife and later threw the knife in bushes, was argued by the prosecutor to be incriminating conduct in that the only reason for those actions was that the applicant knew he had deliberately stabbed Mr Le.
The prosecutor then contrasted those circumstances with ‘the only account we have really from [the applicant], which is what he says in his [ROI]’. The information provided by the applicant as to his involvement in the cannabis factory and his grievance over not being paid properly was described by the prosecutor as ‘background’. The prosecutor continued:
But when the rubber really hits the road, when it really comes down to the crux of this case, of what happened, the critical incident, I would suggest that what [the applicant] produces is a self-serving lie told to minimise the incident and his own responsibility in it.
The prosecutor suggested that the minimising of responsibility by the applicant began during his call to the Police Assistance line when he said that someone had been stabbed by accident and he would tell police about it a few days later. Turning to the applicant’s description of the struggle given in the ROI, the prosecutor suggested that the applicant had physically demonstrated each man’s hands moving side to side while being held in front of their thighs. The prosecutor said the applicant’s ‘full account of the whole episode’ was that he thought that the knife touched the inside of his own thigh, Mr Le’s grip on the knife then loosened and he took hold of it. The applicant then noticed he was bleeding a little before going outside and driving home. The prosecutor continued:
He is minimising what happened, completely airbrushing his role in all of this out. No mention that he stabbed through and through the full width of Mr Le’s thigh, which he must have known because he has pulled the knife back out again. Speaking of which, no mention that he removed the knife out of Mr Le’s leg in order to then leave the scene. No mention that Mr Le collapsed and was bleeding as a result of the altercation. In fact no mention that Mr Le was injured at all. No mention that he took the knife with him, and at that stage at least no mention that he went on to dispose of it.
Self-serving, misleading, untrue. Now, of course, he does not have to tell the police anything, but he has given them an account and it is an account that patently leaves out important details and is designed to leave out important details in my submission. You ought comfortably reject what [the applicant] says, that we struggled and oh, we might have – I don’t even know, he does not even acknowledge that Mr Le was even injured in the course of the episode as he describes it. You ought simply reject his account entirely in relation to that episode.
What he says to you about how this altercation with Mr Le unfolded, you could not act on that. It is inconsistent with all the other evidence in the case as you know it to be. You should put it to one side, and we would ask you to proceed on the evidence you can accept …
Turning to the issue of self-defence the prosecutor first addressed the applicant’s state of mind. It was suggested to the jury that insight into the applicant’s thoughts could be gained from the surrounding circumstances as well as from what he had said during the ROI. The applicant had described the initial exchange between him and Mr Le as Mr Le ‘asking him about why he was causing so much noise while he held a knife in his hand’. The prosecutor said that the applicant did not describe Mr Le as overtly threatening — he described Mr Le ‘holding’ a knife but nothing more. He stepped across the threshold rather than Mr Le advancing upon him. There was no suggestion that at any later stage Mr Le threatened the applicant with the knife. The applicant recognised the knife as a work tool.
Against those circumstances the prosecutor described the applicant’s statement in the ROI, that ‘I first grabbed his hand that was holding his knife because I thought it might be dangerous to my safety’, as the ‘high-water mark’ of the claim to a genuine belief in the need to defend himself, a mark that was ‘not very high’. And, again, the prosecutor relied upon the post offence conduct of leaving the scene without rendering assistance and the removal and disposal of the knife as inconsistent with a genuinely held belief that the stabbing of Mr Le was necessary for self-defence.
Turning to whether the applicant’s action in stabbing Mr Le was a reasonable response to the circumstances perceived by him, the prosecutor invited the jury to conduct an objective assessment of all the circumstances and, again, highlighted that the applicant chose to enter the premises knowing Mr Le held a knife. The prosecutor suggested the evidence showed the applicant to be angry. He managed to overcome Mr Le ‘relatively swiftly’ and take sufficient control of the knife to inflict a deliberate injury before leaving, taking the knife with him.

Defence counsel’s address

The primary focus of defence counsel’s address was the asserted inability of the prosecution to prove that the stab wound was deliberate.
Counsel said that the applicant’s former role at the cannabis factory was the context in which the incident occurred. It was therefore important to understand why the applicant was at the factory on 28 April 2021. He described the applicant’s ROI as ‘the most important evidence’ in the case.
Counsel argued that the applicant’s explanation of the incident in the ROI was credible. He was open and frank, providing a lot of detail about the cannabis factory. He did not avoid questions nor was he evasive. Counsel invited the jury to believe the applicant because he gave the prosecution the evidence they used against him. Counsel suggested that the informant had agreed that to be the case.
Counsel said that the applicant was not angry when he attended the factory. The applicant said in the ROI that he wanted to ask a final time if he would be paid. He did not take a weapon. His calm demeanour upon entry is observable from the CCTV. Counsel suggested that the yelling and swearing heard by Mr Pham came after the applicant had entered the factory. The applicant was only banging on the door for 26 seconds. In that time Mr Le chose to answer the door and pick up a weapon before doing so. He did not have to do either. In particular, there were no cannabis plants at the front of the factory that would have explained an incidental holding of the knife. Accordingly, it was Mr Le who introduced a lethal weapon in circumstances where he did not have to. It was argued that Mr Le opened the door and held the knife because he wanted to confront the applicant. The knife was not for protection. He could have ensured protection by not opening the door.
Counsel suggested that it was really important to consider when the applicant realised Mr Le had the knife. It was argued that in the ROI the applicant said that as soon as he saw that Mr Le had a knife he grabbed it because he ‘felt some element of danger’. Counsel said
And that’s the thing, members of the jury. His actions were immediately upon realising that he had a knife was to grab the knife. And he also says: ‘I first grabbed the knife because I thought it might be dangerous’.
So you have that situation where Le brings the knife, opens the door, confronts [the applicant] with it; [the applicant] grabs it, and then there is a battle.
Counsel further said that there were no eye witnesses and the applicant left with the knife 20 seconds later. It was during that 20 seconds that Mr Pham heard yelling and swearing from the applicant, which was argued to be a normal response by him in the circumstances.
The best thing, counsel suggested, was to watch the applicant’s demonstration in the ROI of what occurred.
And it comes down to this, there is – that is all the evidence there is as to how the knife came into Mr Le’s thigh. And you cannot speculate. You cannot sort of reconstruct what may or may not have happened.
The onus is on the prosecution. They have to prove to you that it was deliberate, that it was voluntary. They cannot. They cannot because there is an incomplete explanation. …
So what you are left with is [the applicant] saying, well he grabs Le’s hand, he then grabbed him by the collar; Mr Le responded by grabbing his hand, and it twisted – and it twisted downwards. There is a struggle, they fall down, he bends his knee, and that is all you have. And you know that the knife did go into the back of his leg, but what does that prove? It does not prove how it happened …
It was argued that the evidence of Dr Parsons did not go beyond what had happened. It was not evidence of how it happened. Counsel said there was no doubt that after the wound had occurred the applicant had pulled the knife out, but that said nothing about how the wound was caused. Counsel continued:
In circumstances where the last thing you know is that both parties were struggling over the knife – and again use your common sense, well if two parties are fighting over a knife, how is it going to end up? One or the other is going to get hurt. And that is what happened in this case. And members of the jury you are here to judge the facts; you are not here to reconstruct and decide how this happened. You have to be satisfied beyond reasonable doubt that [the applicant] deliberately and voluntarily caused the injury, and there is just no evidence to support that proposition.
In addressing the post offence conduct relied upon by the prosecution as incriminating conduct, counsel said that there may not have been a lot of blood at the time the applicant left. He was likely to be panicking and not thinking clearly. It was argued that the applicant’s actions, upon finding out that Mr Le had died, in saying a prayer, calling the Police Assistance line and then giving the ROI, were consistent with the infliction of the wound being an accident.
The issue of self-defence was addressed shortly. Counsel said
Well, I would have thought members of the jury, that would be obvious. Someone comes with a knife, they point it at you, in circumstances where there is conflict. You are entitled to defend yourself in those circumstances.
Counsel also emphasised the dangerousness of the cannabis factory for the applicant, particularly as others thought he was going to come and destroy it. It was suggested that the jury would be satisfied that the applicant had reasonable grounds for feeling threatened.
Proposed ground 1 – good character direction
As noted above the applicant pleaded guilty to the charge of cultivating a commercial quantity of cannabis before the jury panel on the first morning of his trial.
The informant, Detective Leading Constable (‘DLC’) Kirsty Hellebrand, was the final witness in the trial. On the afternoon preceding the day the informant was to give evidence, the judge and counsel had a brief discussion in the absence of the jury about the course to be adopted by the defence and matters likely to be raised pursuant to pt 3 of the Jury Directions Act 2015 at the conclusion of the evidence. Defence counsel indicated that he would seek a good character direction.
The prosecutor immediately said that he wished to ‘flag’ an argument that it would be ‘utterly illogical’ for a good character direction to be given when the jurors had heard the applicant plead guilty to the cultivation charge during the empanelment process. It was put that:
The direction would be meaningless; it would make no sense to them in terms of what they know about [the applicant] on his own admissions to them, and also in his record of interview that they are about to watch. It is not a good character case, in my submission, Your Honour, and it would be an affront to their common sense to give this jury a good character direction when they know what they know about this accused.
Defence counsel indicated that he would elicit from the informant that the applicant had no prior convictions. Counsel said that while the applicant had become involved in drug cultivation in 2020, he was otherwise of good character.
The judge said that if defence counsel did request a good character direction he would give it in the ‘qualified form’, but he immediately observed that ‘it would of course mean that you will get that type of response from [the prosecutor]. Now it is a matter - entirely a matter for you … You are in the driving seat on that’. Defence counsel said he would consider the matter overnight.
The following day DLC Hellebrand gave evidence. She said that she first became aware that Mr Pham and Mr Nguyen, then both at the Sunshine police station, had nominated a man named Thang Minh Ho as involved in the death of Mr Le during the afternoon of 28 April 2021. DLC Hellebrand said that on 2 May 2021 she became aware that a telephone call was received on a service called the Police Assistance line. DLC Hellebrand further said that the following day, 3 May 2021, the applicant was arrested in Lonsdale Street as he was exiting his lawyers office.
In cross-examination DLC Hellebrand was asked about what she did upon becoming aware during the afternoon of 28 April 2021 that the applicant had been nominated by Mr Pham and Mr Nguyen as a person of interest in two crimes. DLC Hellebrand said that she was not then aware of his involvement in the cannabis factory but agreed that after she had obtained his date of birth, she then conducted a police check on the applicant. The following questions and answers were put and given:
And did you find that he has no criminal history? – Yes, I did, yes.
Now you also became aware that he had contacted the police assistance line? – Yes, that was ah, from the um, call on the Sunday.
And it’s clear in his record of interview that he also voluntarily discloses to you that he had contacted the police assistance line? – Yes, that’s correct.
And ultimately when you arrested him, I suggest to you that he was cooperative? – Yes, he was.
At the conclusion of the prosecution case defence counsel indicated that the defence did not propose to call any evidence.
In the course of the Jury Directions Act discussion that then occurred, defence counsel said he did not seek a good character direction.

Applicant’s contentions

The applicant submitted that the decision by defence counsel not to seek a good character direction was not the product of a rational forensic decision. He argued that, despite his admission of guilt with respect to commercial scale drug cultivation, the applicant remained of good character ‘in a particular respect’.[3] That is, he had no criminal history of violence. The charge to be considered by the jury was one of violence.
[3]Evidence Act 2008, s 110.
The focus of the applicant’s contention was the benefit which could have been provided by a direction that his good character with respect to violence could be used by the jury to assess his credibility in the ROI. He contended that his version of events was central to the two live issues in the trial: whether the stabbing was intentional and, if so, whether the applicant acted in self-defence. He argued that a good character direction would have been of substantial benefit to the applicant in the jury accepting the truthfulness of his account. That is particularly so because he reported himself to police and thereafter made frank admissions to his involvement in the cannabis factory and in Mr Le’s death. Those admissions, as conceded by the informant, formed a large part of the prosecution case for manslaughter.
Accordingly, the applicant contended that the jury were denied the opportunity to properly weigh his version of the confrontation between him and Mr Le, thereby occasioning a substantial miscarriage of justice.
The applicant accepted that defence counsel had not requested a good character direction in accordance with s 12 of the Jury Directions Act. The essence of the applicant’s complainant was that defence counsel was in error for not having made such a request. Had defence counsel made the request then the judge would have been required to give the direction because there were no ‘good reasons’ for not giving the direction sought.[4] Furthermore, the judge had said that if a direction was requested, he would give it (in the ‘qualified form’). Because the failure to give a good character direction was a result of defence counsel’s erroneous failure to make the necessary request, it was unnecessary in the present case for the applicant to establish ‘substantial and compelling reasons’ for the giving of the direction in accordance with s 16(1) of the Jury Directions Act.

Respondent’s contentions

[4]Jury Directions Act, s 14(1).

The respondent contended that the applicant was not of good character from the moment he pleaded guilty before the jury panel to cultivating a commercial quantity of cannabis.[5]
[5]Criminal Procedure Act 2009, s 253B(a).
The respondent argued that the introduction of ‘good’ character evidence carried significant risk for the applicant. Whether that evidence was as to good character generally or only in a specific respect, it was submitted that the prosecution would have been allowed to lead evidence in rebuttal. That, in turn, would have been damaging to the applicant’s credibility and therefore his explanation in the ROI of how Mr Le came to be stabbed.
It follows, the respondent submitted, that the decision not to introduce good character was the product of a rational forensic decision.
Further, the respondent submitted that the applicant benefitted from the judge’s direction to the jury that he was not guilty of manslaughter ‘just because’ he had pleaded guilty to the cultivation charge.

Discussion and analysis

Character evidence addresses the inherent moral qualities of a person.[6] Section 110(1) of the Evidence Act 2008 permits an accused to adduce evidence that he or she is a person of good character, either generally or in a particular respect. That is, under the Evidence Act, in contradistinction to the position at common law, character is divisible. It is not all or nothing. An accused who asserts his or her good character in a particular respect is not exposed to an examination of all aspects of his or her character, only an examination of his or her character in that particular respect. In such circumstances the prosecution will be confined to rebuttal evidence in that particular respect.[7]
[6]Melbourne v The Queen (1999) 198 CLR 1; [1999] HCA 32 (‘Melbourne’); Eastman v The Queen (1997) 76 FCR 9.
[7]Evidence Act, s 110(3); Bishop v The Queen (2013) 39 VR 642; [2013] VSCA 273.
Evidence that an accused is of good character, either generally or in a particular respect, may be relevant for either or both of two purposes. First, it may make it more likely that the accused’s evidence or out of court statements are credible. Second, it may make it less likely that the accused committed the offence. The probative value of good character evidence will vary depending on the circumstances of the case[8] and the nature of the evidence. In particular, where the only evidence of good character is an accused’s lack of prior convictions, the probative value may be limited.[9]
[8]Melbourne (1999) 198 CLR 1, 55 [152] (Hayne J); [1999] HCA 32.
[9]Melbourne (1999) 198 CLR 1, 42 [108] (Kirby J), 67 [197] (Callinan J); [1999] HCA 32; R v Cumberbatch (No 5) (2002) 130 A Crim R 599; [2002] VSC 289.
This Court has previously observed that good character evidence should not be undervalued. As Weinberg JA said in Saw Wah v The Queen:
It should be said that the importance of evidence of good character is sometimes underrated. In a case such as the present, involving oath against oath, such evidence can be of particular significance. Not only does the jury learn that the accused has no prior convictions, but they are also told that this evidence bears directly upon the likelihood that he committed the offences charged. Moreover, they are also told that the accused’s previous good character is relevant to his credibility. It is obviously a significant disadvantage to the defence if, for whatever reason, the evidence of good character is not led, and the directions to which the accused is entitled are not given.[10]
[10](2014) 45 VR 440, 448 [41] (Weinberg JA); [2014] VSCA 7.
In a case like the present, where the applicant contends that trial counsel failed to seek a good character direction available to him, this Court must first ask whether the failure of counsel to do so was the product of a rational forensic decision.[11] If it is concluded that it was not then the Court must then ask whether the failure to seek a good character direction has resulted in a substantial miscarriage of justice.[12]
[11]TKWJ v The Queen (2002) 212 CLR 124, 135 [33] (Gaudron J, Gummow J agreeing at 157 [101]), 158 [107] (Hayne J, Gummow J agreeing at 157 [101]); [2002] HCA 46 (‘TKWJ’).
[12]Ibid, 134 [31] (Gaudron J, Gummow J agreeing at 157 [101]), 158 [107]–[108] (Hayne J, Gummow J agreeing at 157 [101]); [2002] HCA 46.
The evidence of the applicant’s good character before the jury was limited to his absence of prior convictions as at 28 April 2021, the day DLC Hellebrand conducted a police check on him. The relevant evidence is extracted at paragraph [48] above. Although no further questions were asked to confirm that as at the 2023 trial the applicant still had no history of violent offending, this application proceeded on the basis that the evidence elicited from DLC Hellebrand was sufficient to demonstrate that the applicant was of good character in the particular respect that he had no demonstrated propensity to violent offending.
When, in advance of DLC Hellebrand’s evidence, there was a preliminary discussion as to what directions defence counsel would seek, counsel said without elaboration that one of them would be ‘good character’. Counsel did not expressly say whether or not this was limited to character in a particular respect or whether counsel would argue that the good character was relevant to his credibility in the ROI and/or the likelihood that he committed the offence.
The prosecutor’s immediate submission to the judge — his ‘flagging’ of an argument — reproduced at paragraph [44] above, seems to have involved the incorrect assumption that the applicant could not, because of his drug offending, be of good character in any respect. That is, that the applicant’s character was indivisible.
A fair reading of the subsequent exchange between defence counsel and the judge, however, indicates that counsel was seeking to raise the applicant’s good character in a particular respect. That is, while he had been criminally involved in drug cultivation he had not offended in any other manner, particularly in a violent manner.
Counsel’s failure to then seek a good character in a particular respect direction may well have been influenced by the ‘flag’ previously planted by the prosecutor that the Crown would be entitled to rebut — generally — the applicant’s asserted particular good character, as well as by the seeming acceptance by the judge of the assumption therein. Whatever the reason, the failure to seek the direction leaves a void as to whether at trial the direction was said to be relevant to either or both of the applicant’s credibility or the likelihood of him committing the offence.
As noted above, the applicant’s argument in this Court was focused upon the first of those purposes. It was put that his good character in the stated particular respect was relevant to the jury’s assessment of the credibility of his account given the ROI.
That argument cannot be accepted.
Although no specific form of words are required when giving a good character in a particular respect direction vis-à-vis the credibility of an accused,[13] the standard direction instructs the jury that it can use that good character in a particular respect when assessing the credibility of the accused’s account because a person who is of good character in that respect is generally thought to be more trustworthy than other people.
[13]Jury Directions Act, s 6.
That the applicant had no convictions for violence does not make him ‘more trustworthy than other people’ in light of his conviction for serious drug offending. The jury empanelled in the manslaughter trial knew of that conviction. That his criminal behaviour had hitherto been limited to drug cultivation is irrelevant to his tendency to tell the truth. He came before the jury as a man who was willing to engage in criminal behaviour. That made him less trustworthy than other people. That is so irrespective of the nature of his criminality and his later cooperation with police, in so far as the latter was demonstrated by his call to the Police Assistance line and his answers in the ROI. If the applicant had sought a direction in these terms, the prosecutor would have been entitled to point out the applicant’s bad character evidenced by his drug offending that would have undermined his credibility as a ‘trustworthy’ person.

The position is different, however, with respect to the likelihood that the applicant was guilty of manslaughter, the second purpose for which good character evidence might be relevant.
Although not the focus of the applicant’s argument in this Court, it is difficult to conclude that a judicial direction that the applicant’s demonstrated absence of propensity for violence could not have been material to the manner in which the jury considered all of the circumstances bearing upon the deliberateness or otherwise of the fatal stabbing.
The jury must have rejected the applicant’s version of events in the ROI and, as invited by the prosecutor and directed by the judge, put it aside. That is unsurprising. The applicant’s version omits salient details that must have been known to him and his demonstration of the struggle is entirely inconsistent with the location of the wound to Mr Le’s thigh. In putting aside the applicant’s version, the jury was then required to consider the elements of manslaughter on the basis of the prosecution evidence it did accept.
The prosecution case was entirely circumstantial. Of the two issues in contention in the trial, the deliberateness of the stab wound was the major issue. This was demonstrated by the manner in which the defence counsel addressed the jury.
The prosecutor argued that it could be concluded beyond reasonable doubt that the stab wound was deliberate by the combination of the following circumstances:
(a)the applicant’s purpose in being present at the cannabis factory;
(b)the applicant’s anger demonstrated by his banging on the door and swearing and shouting;
(c)the brevity of the incident;
(d)the nature of the injury itself, being a through and through injury passing from back to front through the full thickness of Mr Le’s thigh;
(e)the absence of defensive injuries to Mr Le’s hands;
(f)that the applicant pulled the knife out of Mr Le’s leg;
(g)that Mr Le must have been bleeding heavily soon thereafter and fallen where he stood; and
(h)the applicant’s departure from the scene with the knife in the aftermath of the stabbing as incriminating conduct.
Defence counsel argued that the prosecution had failed to establish the element to the criminal standard considering that:
(a)the CCTV footage showed the applicant’s demeanour to be calm when he attended the factory;
(b)the applicant was only knocking at the door for 26 seconds before he was admitted;
(c)Mr Le need not have opened the door;
(d)it was Mr Le who introduced the weapon into the confrontation;
(e)the applicant only realised Mr Le had the knife once he had entered the factory;
(f)the struggle occurred at that point;
(g)the struggle took only 20 seconds;
(h)the yelling and swearing heard by Mr Pham was consistent with the applicant being surprised by a knife;
(i)the evidence of Dr Parsons did not explain how the wound was inflicted;
(j)there was no evidence that a lot of blood was visible on Mr Le at the time the applicant left;
(k)the post offence conduct was explicable by panic; and
(l)the applicant’s conduct in subsequently contacting police and participating in the ROI was consistent with the stabbing being accidental.
A good character direction in a particular respect vis-à-vis the likelihood of the applicant committing manslaughter would have instructed the jury that it is generally believed that a person who is of good character in relation to a lack of violence is unlikely to commit a criminal offence of violence and therefore the jury might be less willing to accept the prosecution case that the applicant deliberately stabbed Mr Le. The jury would have been further told that the absence of any convictions for violence could not alter proven facts, but could help determine whether or not those facts had been proven. The jury would also have been told that a person who has previously been of good character in that particular respect can commit a crime of violence for the first time.
In the circumstances of this case, where a stabbing took place in a 20 second period, the knife was in the original possession of the victim and it was a live issue in the trial whether the applicant saw the knife before or after he entered the premises, we cannot conclude that a judicial direction regarding the applicant’s demonstrated absence of a propensity for violence could not have been material to the manner in which the jury considered all of the circumstances bearing upon the deliberateness or otherwise of the fatal stab wound. That is particularly so because the Crown disavowed any argument that the applicant attended the factory with intent to physically harm anyone. He knocked at the door for only 26 seconds, and in a manner that was not particularly aggressive. Any intention to deliberately stab Mr Le must have been formed during whatever portion of the 20 seconds which remained after the applicant had observed and/or obtained control of the knife. As the knife did not hit bone, the degree of force behind the wound was that which was sufficient to penetrate the skin. And, while the location of the stab wound to the rear of the leg was inconsistent with the description by the applicant in the ROI, the consideration of the combined circumstances relied upon by the prosecution to prove beyond reasonable doubt that the wounding was deliberate necessarily proceeded on the applicant’s account being put aside.
Further, that the evidence of good character in a particular respect was limited to the absence of prior convictions for violence does not, in the particular circumstances of this case, render it of low probative value. The fact that the applicant stabbed Mr Le was not in issue. That he had never before been convicted of violent offending was relevant to a determination by the jury as to whether the stabbing was accidental or intentional.
It is appropriate to say something about two High Court cases that have considered the question whether a miscarriage of justice is demonstrated by reason of a failure to give a good character direction. Those cases are Simic v The Queen[14] and Melbourne.
[14](1980) 144 CLR 319; [1980] HCA 25 (‘Simic’).
In Simic, in the face of an overwhelming prosecution case, the accused denied he was the murderer. There, the deceased had been ‘savagely attacked, and had sustained about thirty wounds of a kind which would have caused death very quickly’.[15] The accused had, on the morning of the murder, purchased the murder weapon, a boning knife. Other evidence against the accused included that he had sought advice from a friend as to a good champagne to get a woman drunk, that the friend had then bought a bottle of spumante and that an opened bottle of spumante and two drinking glasses were found at the scene. The bottle and one glass had the accused’s fingerprints. The other had those of the deceased. The deceased’s clothing had also been deranged in a manner suggestive that her assailant had a sexual interest in her (although no evidence of ‘sexual interference’ had been found). Laundered car seats found to have traces of blood were found at the accused’s house along with damp trousers belonging to the accused.
[15]Ibid, 322 [2].
There was evidence in the trial that the accused had no prior convictions, was happily married with children, had never been violent to his wife or children and had been a satisfactory employee.[16]
[16]Ibid, 333 [23].
No good character direction was requested. In directing the jury the trial judge made brief mention of the accused’s lack of prior convictions. The Court said that:
… it is obvious that whether evidence of good character will be of any avail to an accused person depends on the strength of the evidence supporting the charge.
There is no rule of law that in every case in which evidence of good character is given the judge must give a direction as to the manner in which it can be used. … No doubt, speaking generally, it is right to add, as was said in that case, that if such a direction is asked for it would be wise to give it.[17]
[17]Ibid, 333 [24]–[25].
The Court concluded that:
There is no reason to believe that the jury would not have understood that a man of good character would be unlikely to commit a crime of savage violence such as that with which the applicant was charged. In other words, there is no reason to conclude that the jury would have failed to give the evidence as to good character such weight as it deserved.[18]
[18]Ibid, 333–334 [26].
In Melbourne a good character direction had been sought based on the absence of prior convictions other than a 1975 conviction for drink driving and that the accused was not ‘adversely known to police’. The direction was sought both as to improbability of committing the charged offence and to the accused’s credibility, but only given with respect to the former. A majority of the Court concluded that the judge had not erred. Indeed, McHugh J considered that the accused’s good character was not relevant to the credibility of the accused — rather it was relevant to the improbability of him having committed the offence, but that had been the subject of adequate direction.[19]
[19]Melbourne (1999) 198 CLR 1, 22 [54] (McHugh J); [1999] HCA 32.
As Hayne J said in Melbourne, the use that a jury may make of the previous character of an accused is dependent upon the facts of the case. The use will vary according to the nature of the character evidence and the relationship that evidence has to the case that is sought to be made against the accused.[20]
[20]Ibid, 55 [152] (Hayne J).
In summary, both Simic and Melbourne support the proposition that a direction on character is not necessarily required simply because the accused has adduced evidence of good character.[21] But those cases did not go so far as to suggest that a failure to give a good character direction could never amount to a substantial miscarriage of justice. Rather, the question of whether such a failure amounts to a substantial miscarriage of justice is a fact-dependant inquiry. Furthermore, neither case concerned the operation of the Jury Directions Act, s 14 of which requires the judge to give a direction that is requested unless there is good reason for not doing so.
[21]Simic (1980) 144 CLR 319, 333 [25]; [1980] HCA 25; Melbourne (1999) 198 CLR 1, 57 [157] (Hayne J); [1999] HCA 32.
This case was quite different from both Simic and Melbourne. In this case the fact that the applicant stabbed Mr Le was not in issue. The intention with which that act occurred was. The prosecution evidence as to intention was not overwhelming. Rather, it depended upon the jury drawing inferences from the facts, including that the applicant did not bring the knife to the factory and the stabbing occurred in the course of a scuffle of very short duration. As Weinberg JA observed in Sah Wah, the jury could have been told that the applicant’s lack of prior convictions for violent offending bore directly upon the likelihood that he committed manslaughter. That is, that the applicant had never before engaged in violence was relevant to a determination by the jury as to whether the stabbing was accidental or intentional.
Ultimately, this latter point was conceded by the respondent at the hearing of the application when this issue was raised in discussion. That being so, it must be concluded that the decision by trial counsel not to seek a direction as to good character in a particular respect relevant to the likelihood that the stab wound was deliberate was not the product of a rational forensic decision.
The second question, then, is whether that failure occasioned a substantial miscarriage of justice in the trial.
As noted earlier, evidence of good character (in a particular respect) is capable of being of significant benefit to an accused person in a criminal trial. In this case we cannot conclude that the absence of the direction could not realistically have affected the reasoning of the jury that the infliction of the injury was deliberate.
The judge did, appropriately, direct the jury that it was improper to reason that the applicant was guilty of manslaughter just because he had cultivated a commercial quantity of cannabis, but the jury did not have the benefit of being told that his absence of a propensity for violence could be used to inform the inferences to be drawn from the prosecution’s circumstantial case as to the deliberate infliction of a stab wound. Had that direction been sought, it would have been given.
It follows that proposed ground 1 is made out.
It is therefore unnecessary to consider proposed ground 2.

Conclusion

As proposed ground 1 must succeed, the application for the extension of time in which to appeal against conviction is granted and the application for leave to appeal against conviction granted. The appeal is allowed. The applicant’s conviction on the charge of manslaughter is set aside and it is ordered that the applicant be retried on that charge.

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[2025] VSCA 150

30 June 2025