Huynh v The Queen Duong v The Queen Sem v The Queen
[2013] HCA 6
13 March 2013
A30/2012, A31/2012 & A32/2012
ORDER
Matter No A30/2012
Appeal dismissed.
Matter No A31/2012
1.Special leave to appeal granted.
2.Appeal treated as instituted and heard instanter and dismissed.
Matter No A32/2012
1.Special leave to appeal granted.
2.Appeal treated as instituted and heard instanter and dismissed.
On appeal from the Supreme Court of South Australia
Representation
M E Shaw QC with S J Doyle SC for the appellant in A30/2012 (instructed by Caldicott and Co)
J D Edwardson QC with J P Noblet for the applicant in A31/2012 (instructed by Noblet & Co)
M L Abbott QC for the applicant in A32/2012 (instructed by Patsouris & Associates)
A P Kimber SC with E M Wildman and T J Costi for the respondent in all matters (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Huynh v The Queen Duong v The Queen Sem v The Queen
Criminal law – Directions to jury – Joint enterprise liability – Participation in joint criminal enterprise – Where participation in enterprise not live issue at trial – Whether necessary for trial judge to direct jury on elements of liability not in issue at trial.
Criminal law – Summing-up – Joint trial – Where almost all evidence at trial admissible against each accused – Where trial judge identified criticisms of evidence and significance of criticisms to each accused's case – Whether trial judge obliged to deal separately with each accused's case when summing-up in joint trial.
FRENCH CJ, CRENNAN, KIEFEL, BELL AND GAGELER JJ. Tuan Kiet David Huynh ("Huynh"), Chansyna Duong ("Duong") and Rotha Sem ("Sem") were each convicted of the murder of Thea Kheav at a joint trial in the Supreme Court of South Australia (Kourakis J and a jury). Each is serving a term of life imprisonment subject to a non-parole period of 20 years consequent upon that conviction. Appeals against their convictions were dismissed by the Full Court of the South Australian Supreme Court (Doyle CJ, Vanstone and Peek JJ)[1]. On 7 September 2012, Huynh was granted special leave to appeal on two overlapping grounds. Following the grant of that leave, Duong and Sem applied for special leave to appeal on the same two grounds. Their applications were referred to a Full Court on the basis that they would be argued as on appeal at the same time as the hearing of Huynh's appeal. For the reasons to be given, Duong and Sem should be given special leave to appeal but all three appeals should be dismissed.…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Huynh v The Queen [2013] HCA 6
Case
[2013] HCA 6
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard appeals from convictions for murder arising from a joint criminal enterprise. The appellants, Duong and Huynh, along with others, were involved in events that led to the death of the deceased. The central dispute concerned the adequacy of the trial judge's directions to the jury regarding joint enterprise liability and the presentation of each appellant's case in a joint trial.
The legal issues before the High Court were twofold. Firstly, whether the trial judge was obliged to direct the jury on the elements of participation in a joint criminal enterprise, even though this was not a live issue at trial, given that the prosecution's case was that the appellants were part of a group that agreed to inflict serious harm. Secondly, whether the trial judge's summing-up adequately addressed the separate case of each appellant, particularly in a joint trial where much of the evidence was admissible against all accused.
The High Court reasoned that the trial judge's directions on joint enterprise, while not explicitly detailing the element of participation as a discrete issue, were sufficient because the prosecution's case was that the appellants were part of a group that had agreed to commit murder or cause grievous bodily harm. The focus of the trial was on whether such an agreement existed and whether the appellants were part of that agreement, rather than on whether they individually participated in the enterprise. The Court also found that the summing-up adequately identified the criticisms of the evidence and their significance to each appellant's case, thereby fairly presenting each accused's defence.
The appeals were dismissed.
Orders
Orders of the court
Matter No A30/2012
Appeal dismissed.
Matter No A31/2012
1. Special leave to appeal granted.
2. Appeal treated as instituted and heard instanter and dismissed.
Matter No A32/2012
1. Special leave to appeal granted.
2. Appeal treated as instituted and heard instanter and dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
The directions given to the jury respecting liability for a joint enterprise to commit murder were favourable to the appellants in that they required the prosecution to prove that the agreement to kill or to inflict really serious bodily harm involved the use of "a knife or similar bladed weapon". However, the directions did not specify proof that the appellant participated in the enterprise as a discrete element of liability. The significance of that omission is the first issue raised by the appeals. Its resolution requires consideration of the real issues in the trial and of the sufficiency of the directions to guide the jury to their decision on those issues. That consideration requires analysis of the separate case of each appellant. The sufficiency of the summing-up to identify fairly each appellant's case is the second issue raised by the appeals. The determination of each issue requires some further reference to the evidence and to the conduct of each case at the trial. The evidence A detailed summary of the evidence is contained in the reasons of the Full Court[2]. What follows is substantially taken from that account. The deceased, his three brothers and Sem all attended the birthday party as invited guests. Duong, Huynh and a number of their associates also attended the party. After a short time they left and went to Duong's house. Sem remained at the party. The deceased and his brothers appear to have entertained some ill-feeling towards Sem and the others. The deceased asked his hosts why they had been invited to the party. The inquiry led to a confrontation between Sem and the Kheav brothers. At some point in the course of the confrontation Sem said words to the effect of "watch your back". Following the confrontation, Sem left the party and drove to Duong's house, where he gave an account of the incident.[2]R v Duong (2011) 110 SASR 296 at 298-301 [3]-[23]. The evidence of what took place at Duong's house came from Kathleen Francis and Sophie Russo. Kathleen Francis said that Sem might have said "let's go get them". The group left Duong's house and travelled in several cars to the Vartue Street premises. As the group was leaving the house, Kathleen Francis heard someone say "get a knife". The evidence did not establish that Duong or Huynh were present when Sem related his account of the incident at the party, nor did it establish that any of the appellants heard the words "get a knife". Kathleen Francis believed that Sem had already walked out of the house at the time she heard these words. Evidence concerning the events that followed the arrival of the group at the Vartue Street premises came from the hosts, guests and neighbours. There were inconsistencies in the various accounts. Estimates of the number of persons who arrived at the Vartue Street premises varied between 10 and 40. The men in the group were described as having been "armed with bottles, pieces of wood, sticks, blue metal poles, baseball bats, machetes and a fishing knife". The evidence did not establish that Duong or Huynh arrived at the scene armed with any form of weapon. A witness gave an account that Sem had been armed with two bottles when he got out of his car. Relevantly, the appearance of the group was evidently aggressive. In summing-up, the trial judge commented that it was open to find that the group, as it proceeded down Vartue Street, presented "a combined show of force". As the group approached the Vartue Street premises, many of the guests retreated into the garage and closed the roller door. At this point the deceased and a female friend were standing in the driveway at the front of the premises.
Decision
Reasons for decision
FRENCH CJ, CRENNAN, KIEFEL, BELL AND GAGELER JJ
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Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, CRENNAN, KIEFEL, BELL AND GAGELER JJ