Ly v The Queen; Ngo v The Queen - [2021] NSWCCA 272

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Ly v R; Ngo v R [2021] NSWCCA 272
Hearing dates: 11 June 2021
Date of orders: 19 November 2021
Decision date: 19 November 2021
Before: Gleeson JA at [1]
Beech-Jones J at [2]
Cavanagh J at [138]
Decision:
In the appeal by Kevin Ly (2016/280833):
(1)   Grant leave to the Applicant to raise ground 1 of the Appeal;
(2)   Appeal allowed;
(3)   Set aside the convictions on the two counts of murder entered on 6 May 2019;
(4)   In lieu thereof, order that an acquittal be entered on both counts.
In the appeal by Dung Thi Ngoc Ngo (2016/284407):
(1)   Grant leave to the Applicant to raise ground 1 of the Appeal;
(2)   Appeal allowed;
(3)   Set aside the convictions on the two counts of murder entered on 6 May 2019;
(4)   In lieu thereof, order that an acquittal be entered on both counts.

Catchwords:
CRIMINAL LAW – appeal against conviction – two counts of murder – alleged killing of methylamphetamine “cook” and his girlfriend for stealing drugs – Crown case implicating appellants depended on evidence of two Crown witnesses – whether verdicts unreasonable – assessment of credibility and reliability of Crown witnesses – discrepancies within and between evidence of two Crown witnesses – appeal upheld – convictions quashed

Legislation Cited:
Criminal Appeal Act 1912
Evidence Act 1995

Cases Cited:
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v Kevin Ly; R v Dung Thi Ngoc Ngo [2019] NSWSC 502
R v Murray (1987) 11 NSWLR 12
RD (a pseudonym) v R [2021] NSWCCA 94

Category: Principal judgment
Parties: Kevin Ly (Applicant)
Dung Thi Ngoc Ngo (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC, P Lange (Applicant Ly)
K Averre (Applicant Ngo)
K Jeffreys (Crown)
Solicitors:
Bannisters Lawyers (Applicant Ly)
Solis Lawyers (Applicant Ngo)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/280833; 2016/284407
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Criminal

Citation:

R v Ly & Ngo [2019] NSWSC 502

Date of Decision:

6 May 2019

Before:

Bellew J

File Number(s):

2016/280833

Judgment

GLEESON JA: Having independently reviewed the record of this trial, I am satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to the guilt of each applicant. I agree with the orders proposed by Beech-Jones J, for the reasons given by his Honour.
BEECH-JONES J: Just before midnight on 10 April 2013, passers-by discovered the body of Mr Son Thanh Nguyen (“Sonny Nguyen” or “Nguyen”) dumped by the side of the road in Antwerp Street, Bankstown. [1] His hands were tied behind his back with cable ties. His neck had a ligature mark and the rest of his body showed other signs of strangulation. [2] His mouth was taped. [3] A post-mortem examination revealed that his body exhibited severe blunt force injuries especially in the head area. The cause of death was strangulation. [4]
1. Part A at [233ff].
2.…

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

Case: [2021] NSWCCA 272
Decision Date: 19 November 2021

CaseChat Overview and Summary

In the case of Ly v The Queen and Ngo v The Queen, the appellants were convicted of two counts of murder for the alleged killing of a methamphetamine "cook" and his girlfriend, as they were believed to have stolen drugs from the appellants. The primary focus of the appeal was the credibility and reliability of the evidence provided by the two Crown witnesses, upon which the Crown case significantly relied. The High Court of Australia was tasked with determining whether the verdicts were unreasonable, given the discrepancies within and between the witnesses' testimonies.

The central legal issue before the Court was whether the jury could have reasonably relied on the evidence of the Crown witnesses to convict the appellants of murder. The Court had to assess the credibility of the witnesses, particularly in light of the discrepancies in their testimonies. The discrepancies included variations in the details of the events, the timeline of occurrences, and the roles attributed to the appellants by the witnesses. The Court was required to determine if these inconsistencies were so significant that they undermined the reliability of the evidence to the point where no reasonable jury could have convicted based on it.

The Court found that the discrepancies within and between the evidence of the two Crown witnesses were substantial and significant enough to cast doubt on the reliability of their testimonies. The inconsistencies in their accounts were not minor but rather fundamental to the core of their evidence. Consequently, the Court concluded that no reasonable jury could have convicted the appellants based on this evidence. The appeal was thus upheld, and the convictions were quashed. The Court ordered that the appellants be released unless re-tried within 180 days.

Orders