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. Part A [247] to [248].
3. Part A at [293].
4. Part A at [299] to [301].
The partner of Sonny Nguyen was Ms Thi Kim Lien Do (“Do”). Her body was discovered on 15 January 2014 in bushland in Flynn Avenue, Middleton Grange near Hoxton Park. [5] Her body was wrapped in plastic which was described as a “blow-up mattress” by the persons who discovered it. [6] Given the decomposed state of Do’s body, a post-mortem examination did not yield any affirmative conclusion as to her cause of death. The examiner accepted that the possible causes of death included smothering, blood loss and asphyxiation. [7] Remnants of hand ties were found on her wrists. [8]
5. Part A at [263].
6. Part A at [271].
7. T 154; Part A at [303].
8. Part A at [308].
The two applicants for leave to appeal, Kevin Ly (“Ly”) and Dung Thi Ngoc Ngo (“Ngo”), were charged with the murders of Mr Nguyen and Ms Do. On 22 October 2018, they were arraigned before Bellew J and a jury panel on an indictment that charged them with two counts of murder. They both pleaded not guilty. On 23 November 2018, the jury found each of them guilty on both counts. On 6 May 2019, his Honour convicted them and sentenced each of them to an aggregate sentence of 40 years imprisonment with a non-parole period of 30 years (R v Kevin Ly; R v Dung Thi Ngoc Ngo [2019] NSWSC 502).
Each of the applicants seeks leave to appeal against their convictions. They do not contend that any aspect of their trial including the summing up was unfair. Instead, they raise one ground of appeal namely that the verdicts are unreasonable and cannot be supported according to the evidence (Criminal Appeal Act 1912, s 6(1)). As this ground of appeal does not raise a question of law alone, a grant of leave to appeal is required (s 5(1)). The particular submissions made in support of this ground and the principles applicable to its resolution are set out below. However, in summary they contend that the inconsistencies within the evidence of the two principal Crown witnesses, and between their evidence and other evidence, were such that the verdicts are unreasonable. For the reasons that follow, I accept that contention. To explain that conclusion it is first necessary to outline the Crown case, then describe the evidence of the two principal Crown witnesses and the “independent evidence” especially so far as it bears on their credibility.

The Crown Case

The Crown case at trial was that Ngo and Ly participated in a joint criminal enterprise to kill Do and Nguyen. The Crown relied on the evidence of two witnesses whose identities are suppressed and will be referred to as “Witness 3” and “Witness 4”. They had each received an undertaking from the Attorney‑General that the evidence they gave would not be used against them.
The Crown contended that Ngo was effectively the principal of an “ice” manufacturing and supply business. Witness 4 and Witness 3 were friends who were both involved in Ngo's drug enterprise. Witness 3 was in a relationship with Ngo. Ly was a friend of Ngo and allegedly had some involvement in the enterprise. Sonny Nguyen worked for Ngo as a drug "cook". As noted, Do was Nguyen's partner.
Based on the evidence of Witness 3 and Witness 4, the Crown contended that, on 10 April 2013, Ngo learned of the theft of drugs from a laboratory where Nguyen was cooking ice for her, and she suspected that he was the thief. At Ngo's request, Witness 4 and Witness 3 attempted to contact Nguyen to have him attend the house at 26 Beckenham Street, Canley Vale, where Nguyen had been working (the “Beckenham Street house”). Witness 3 also contacted Ly. Witness 4 and Witness 3 said they were both at the Beckenham Street house with Ngo and others, when Nguyen arrived with Do. Nguyen went to the garage, while Do went into one of the bedrooms. Several armed men, including Ly, then set upon Nguyen and secured his hands and legs with cable ties. Witness 3 said he left the house at that point.
It was Witness 4’s evidence that Ngo gave Nguyen an opportunity to return the stolen drugs. She then gave one of the men a box containing cash and said "do it". Ly then proceeded to strangle Nguyen to death with a ligature. Witness 4 also described seeing Do around this time tied up in a bedroom. Witness 4 said that later he and an associate, Mr Anh Vu Pham (“Pham”), disposed of Do's body by throwing it over a fence in a secluded area while others disposed of Nguyen’s body.
Neither of the applicants gave or called evidence at the trial. It does not seem to be in issue that each deceased was deliberately killed by someone, that each applicant was known to Witness 4 and Witness 3 and that the applicant Ngo was in a relationship with Witness 3. The case for each applicant was that they were not at the Beckenham Street house on the evening of 10 April 2013 and played no role in the killings. [9] A statement given by Ngo to the police in May 2014 was tendered. She confirmed that she had a relationship with Witness 3 until around September 2013 when she found out he was married. She said that she did not know how either Nguyen or Do died or why there were killed. [10] Both her and Ly were not arrested until September 2016. [11]
9. Ex AY.
10. Ex AY at [7].
11. Part A at [443] to [444].
At this point five matters should be noted about the Crown case.
First, as noted, the Crown contended that each of the applicants was a party to a joint criminal enterprise to kill Nguyen and Do. In her closing address the Crown Prosecutor described the agreement to kill as “conditional”, that is, conditional on Nguyen not disclosing the whereabouts of the stolen drugs. The joint criminal enterprise was alleged to embrace the killing of Do because, even though neither Witness 4 or Witness 3 gave evidence that Ngo or Ly ordered or performed that killing, the Crown contended they must have agreed that if Nguyen was to be killed then Do had to be killed as well. [12] Although a case against Ngo or Ly based on a joint criminal enterprise is not confined to proving that Ngo directed the killing of the deceased and Ly committed the murders, it has it limits. As Senior Counsel for Ly, Mr Game SC, submitted, the alleged joint criminal enterprise does not embrace a scenario where, say, Witness 4 or Witness 3 had a greater involvement in the killings than they admitted, and Ngo and Ly were merely present at the time they occurred. [13]
12. T 1071.
13. Tr 11/06/2021 p 7.45
Second, at the trial it was accepted by the Crown that there was no DNA or other forensic evidence implicating either Ngo or Ly. [14] That position was maintained by the Crown on appeal, although the Crown did contend that the forensic evidence provided some support for Witness 4’s evidence.
14. T 1070.12-13.
Third, the trial judge directed that, by reason of their involvement in criminal activity, the evidence of Witness 4 and Witness 3 may be unreliable (Evidence Act 1995, s 169). [15] In considering this appeal this Court must act on the same basis.
15. AB 1804.
Fourth, the trial judge’s summing up directed the jury to the central importance of Witness 4’s evidence. [16] Although it might be said that Witness 3’s evidence in part supported Witness 4’s evidence, it was only Witness 4 who directly implicated the applicants. Thus, his Honour gave the jury a “Murray direction” (R v Murray (1987) 11 NSWLR 12) in respect of Witness 4’s evidence as follows: [17]

“Unless you are satisfied beyond reasonable doubt that [Witness 4] is both an honest and an accurate witness in the account he has given, you cannot find … either of the accused guilty.
Before you can convict either of the accused, you must examine the evidence of [Witness 4] very carefully in order to satisfy yourselves that you can safely act upon that evidence to the high standard which is required in a criminal trial.
…
I am not suggesting to you, giving you this direction, that you are not entitled to convict either of the accused based on [Witness 4’s] evidence. Clearly, you are entitled to do so but only after you have carefully examined the evidence and satisfied yourself that it is reliable beyond reasonable doubt. Also in considering the evidence of {Witness 4] and in considering whether or not you can be satisfied that it is reliable beyond reasonable doubt, you should look beyond his evidence and see whether or not his evidence is supported by any other evidence in the case.” (emphasis added)
16. AB 1804 to 1807.
17. AB 1806 to 1807.

Again, it follows that this Court must consider the appeal in a manner consistent with these directions.
Fifth, as explained below, at the trial the Crown Prosecutor largely abandoned any reliance on Witness 3’s evidence.

Witness 4’s Evidence

The following is a precis of Witness 4’s evidence‑in‑chief with reference to some of the points raised in cross‑examination by counsel for each of the applicants which are said to demonstrate his unreliability as a witness. The balance of the points and the submissions concerning his evidence are addressed at [109] to [131].
In his evidence‑in‑chief, Witness 4 stated that he was first approached by police in July 2014 and that, after obtaining legal advice and out of fear of threats from Ly, he decided to co-operate. [18] He provided an induced statement on 10 July 2014 implicating the applicants (and himself) [19] (the “July 2014 statement”) and a further statement dated 16 October 2018 [20] which was six days prior to the trial commencing. As noted, he received an undertaking from the Attorney‑General to the effect that the evidence he provided would not be used in any proceedings again him except in respect of its falsity. [21]
18. T 207.
19. AB 525.
20. AB 563.
21. AB 521.
Witness 4 said that that he was born in Vietnam in 1985. He came to Australia in October 2004, and his first language was Vietnamese. [22] At some point he moved to McBurney Road, Cabramatta. Witness 3 was his neighbor. By 2011, they had become close friends. [23] Witness 4 said he met Ngo at party in 2012 as she was “[Witness 3’s] girlfriend”. [24] Around the “end of 2012” he went to her house. In her presence, Witness 3 recruited him to work for Ngo and that he “only had to take ice to Perth” and was to be paid between $5000 and $7000 for each trip. [25] Witness 4 gave evidence that he transported the drug ice to Perth on five occasions [26] and ultimately received $5000 for each trip. [27] Witness 4 said that on the first trip Ngo met him at the airport. [28] He said that prior to the trips to Perth, he was not aware that Witness 3, Ngo, or Pham were involved in drug supply or drug manufacture. [29] He said that after the second trip, he used the proceeds to take a holiday to Vietnam. [30]
22. T 212.
23. T 215.1.
24. AB 810.
25. AB 811.
26. T 218.
27. T 232.
28. T 231.
29. T 234.
30. T 230.
Witness 4 said he met Ly at party hosted by some friends of Ngo in 2013.³ He said he met him again at another party and then saw him at Beckenham Street on 10 April 2013. [31] He said he was introduced to Nguyen and Do at the Marconi club in “late February, early March … 2013 [32] (although in cross‑examination he agreed that he had met them without finding out their names at the Canley Vale Diggers club in 2012). [33]
31. T 236.
32. T 241.1.
33. T 371 to 372.
According to the Crown, for a period of time in 2013, Ngo’s drug operation manufactured and distributed ice from a house in James Avenue, Lurnea (the “Lurnea House”) before moving to the Beckenham Street house. In his evidence, Witness 4 said he visited the Lurnea House on three occasions. He said that the first occasion was in March 2013 after his fifth trip to Perth. He said Witness 3 told him that Nguyen would be manufacturing the drugs and he, Witness 4, was to learn from him. Witness 4 said that no one was at the house and he and Witness 3 merely left some equipment there. [34] Witness 4 said that the second visit was a few days later. He again went with Witness 3. Witness 4 said that Nguyen was present and one room was set up as a type of laboratory but “I did not see Sonny did any cooking”. [35] Witness 4 said that on a third occasion he visited with Pham and [Witness 3] was there with the cooking”. [36] (In cross-examination, Witness 4 agreed that he went to the Lurnea House on a fourth occasion, being 10 April 2013, and saw that the drug laboratory was no longer there. [37] )
34. T 242 to 245.
35. T 244.42.
36. T 245.34.
37. T 439.
Witness 4 said that the syndicate stopped using the Lurnea House after an argument between the owner and Witness 3. [38] Instead, on 13 March 2013, Witness 4 signed a residential tenancy lease for the Beckenham Street house. [39] Witness 4 agreed that the phone number on the lease was his. [40] Witness 4 said that Witness 3 found the Beckenham Street house and he, Witness 4, signed the lease at Witness 3’s request. He said that Witness 3 said he would pay for it and told him that he wanted it for “solely for parties” and “to be together with [Ngo]”. [41] He was then asked: [42]

“Q.   At any stage did the plan change as to what the house was going to be used for?
A.   INTERPRETER: No. But there was one strange point that – yeah, after the furniture moved in, there was [a] strange thing that [Witness 3] said to me – ….. he said to me that the garage was for privacy and I was not allowed to go into the garage.
Q.   Did you know why you weren’t going to be allowed to go to the garage?
A.   INTERPRETER: I don’t know.”
38. T 279.
39. Ex Y.
40. T 246-247.
41. T 248.26.
42. T 249.

These answers prompted the Crown Prosecutor to make an application under s 38 of the Evidence Act 1995 to cross‑examine Witness 4. The Crown Prosecutor contended (correctly) that these answers were inconsistent with paragraphs 59 and 60 of Witness 4’s July 2014 statement in which he stated that Ngo had a “plan to set up another drug house [being the Beckenham Street house] in the area as an office and where [Witness 3], [Pham] and I could practice cooking drugs from”. [43] The application to cross‑examine Witness 4 was granted. During cross‑examination by the Crown Prosecutor, Witness 4 said he “thought that the place, the lease for the place was just for a normal place and that's why I helped [Witness 3] in signing the lease." [44] It was suggested that he knew the Beckenham Street house was “chosen as another drug house”. He maintained that “[Witness 3] didn’t tell me, it was for cooking drugs but it was for parties” and he thought he was prevented from entering the garage “because [Ngo] and [Witness 3] used the garage to meet with other people”. [45] Later in cross‑examination he was taken to other parts of his July 2014 statement in which he referred to the “plan” for himself, Witness 3 and Pham to practice cooking drugs which “never happened because I never learnt anything from Sonny and we ran out of time due to his death”. [46] He replied that he only made the statement after the killings at the Beckenham Street house and “It's only then I knew - I learned that that house was for manufacturing drugs.” [47]
43. AB 536 at [60].
44. T 252.40ff.
45. T 255.25.
46. T 453 to 454.
47. T 454.25-26.
Witness 4 gave evidence that he went to the Beckenham Street house three times, the first being when Witness 3 took him there to show him the house, [48] the second being when they brought the furniture to the house, and the third being on 10 April 2013. [49] He also said that he never saw Nguyen and Do at the Beckenham Street house prior to 10 April 2013. [50] However, in cross‑examination he agreed that in his July 2014 statement he said that he had seen Nguyen at the Beckenham Street house twice, [51] the first time being when he dropped off some food to Do, when they moved furniture into the house. Witness 4 sought to explain this by stating “they came to the house to attend a party there, not to meet there”. [52] This was inconsistent with other evidence he gave that the last time he had seen Do before her death was when he was introduced to her at the Marconi club. [53]
48. T 279.
49. T 261 to T 262.
50. T 262; T 279 to 280.
51. T 369.
52. T 370.
53. T 370.41.
In his evidence‑in‑chief, Witness 4 was shown a printed list of chemicals written in Vietnamese [54] and he stated that Ngo had given him the list and had both him and Pham learn it so that they could help Witness 3. [55] In cross‑examination, he was taken to parts of his July 2014 statement in which he said he agreed with Ngo that he would “not sell or deliver drugs directly” but would give her “advice on different chemicals” because he had studied chemistry in secondary school and “poisons” in Japan. [56] Witness 4 explained that this “advice” had “nothing to do with the manufacture of ice”. [57] Similarly, in his evidence‑in‑chief, Witness 4 denied that he had ever bought drugs or glassware for the manufacturing process and said that Witness 3 had bought all the glassware. [58] In cross‑examination, he maintained that he was never with Witness 3 when he bought glassware for manufacturing ice. [59] However, he was taken to his July 2014 statement in which he said that he and Witness 3 went to a factory “and bought all the glassware” and that “we paid $7,000 cash”. [60] Witness 4 stated that he only realised it was glassware when they unpacked it on their return to the Lurnea House. [61]
54. Ex AC2
55. T 278.
56. AB 531 at [33].
57. T 378.30.
58. T 278-279.
59. T 389.21.
60. AB 537 at [67].
61. T 390.40.

In his evidence‑in‑chief, Witness 4 was asked about a conversation he had on 9 April 2013 regarding a samurai sword he owned. [62] This is of significance given his evidence suggests a sword was used in beating Nguyen prior to his strangulation. In his evidence‑in‑chief on the afternoon of Friday, 26 October 2018, Witness 4 said he could not recall what that conversation was about other than “perhaps to borrow it” and he agreed to lend it. [63] He was asked who he spoke to and who he lent the sword to. Witness 4 said he could not remember other than he was “Asian, a Vietnamese”. [64] Witness 4 said that he saw it in someone’s possession the next day and he was “very surprised because that person was not the person that I lent the sword [to]”. [65] He said that he lent “someone” the sword on the night of 9 April 2013 and “the person said to me that he will return it to me one or two days later”. [66]
62. T 280.
63. T 281.1.
64. T 281.31.
65. T 281.27.
66. T 282.25-27.
Witness 4’s evidence‑in‑chief did not conclude on 26 October 2018. When the trial resumed on 29 October 2018, Witness 4 was asked whether he could recall to whom he lent his samurai sword on 9 April 2013 or not. He replied, “It was a long time ago, I cannot recall”. [67] In cross‑examination, he was referred to his July 2014 statement in which he stated that the day before the murders, ie 9 April 2013, he met Ly who asked to “borrow his toy” and he, Witness 4, replied, “why are you going to boil [ie hurt or kill] somebody” and that Ly telephoned him at 9.00pm to arrange a rendezvous to hand over the sword. [68] Witness 4 said that on reading his statement in cross‑examination “I’m remembering it now”. [69] The cross‑examiner suggested it was not credible he would forget that, pointed to a further discrepancy in his account of how many swords he owned and suggested that he was lying to minimize his role in the murders. [70] Given that the version of events set out in his July 2014 statement involves Witness 4 providing a potential murder weapon to one of the killers and discussing the possibility of its being used to hurt or kill someone, that contention appears to have considerable force.
67. T 297.27.
68. AB 538 at [73] to [79]; T 586 to T 588.
69. T 587.20.
70. T 591.6.

10 April 2013

Witness 4 gave evidence that after 5.30pm of 10 April 2013, as he was walking home from the mobile phone shop, he received a call from Witness 3 who told him that "Things belonged to [Ngo] have gone". [71] He said he arrived home about 10 minutes later and Witness 3 collected him. They drove off in a Hyundai motor vehicle. In cross‑examination, Witness 4 stated that Witness 3 arrived in a Hyundai but they left in white Suzuki parked on the road. [72] Witness 4 said that Witness 3 told him that Ngo was very angry. [73] Witness 4 said that Witness 3 drove to the Lurnea House and that Witness 3 told him to call Nguyen and Do and ask them to meet Ngo at the Beckenham Street house. [74] Witness 4 said that Witness 3 did not tell him whether Nguyen was suspected of having done anything. [75] Witness 4 said that Witness 3 dropped him at the Lurnea House. He waited for an hour and then found a taxi which dropped him near Beckenham Street. [76] However, in cross‑examination, he appeared to accept what he said in his July 2014 statement, namely, that when he and Witness 3 arrived at the Lurnea House, they looked inside, stayed for about 10 minutes and then Witness 3 drove him back to his house for him to change while Witness 3 went and collected Ngo. [77] Witness 3 then called him and told him to catch a taxi back to the Lurnea House where he stayed for half an hour before travelling to Beckenham Street. [78]
71. T 283.32ff.
72. T 464.
73. T 283 to T 284.
74. T 285.
75. T 285.
76. T 285 to T 286.
77. T 470.
78. T 471.
Witness 4 said that when he arrived at Beckenham Street, he saw both Pham's car, being a Holden Astra hatchback, and Ngo's car, a white Suzuki, parked on the grass in front of the house. Witness 4 said he entered the house and saw Ngo, Witness 3 and Pham in the lounge room. Ngo looked upset. Witness 3 asked him why he had arrived so late [79] and whether Nguyen had called him. Witness 3 told him to keep calling Nguyen to find out where he was and to ask him to come immediately as people were waiting. [80] Witness 4 said he telephoned Nguyen who said he was shopping with Do. Witness 4 asked him to come to the Beckenham Street house. [81] He said he handed the phone to Witness 3 and heard him ask the same thing. [82] Witness 3 told him that Nguyen was on his way in a taxi and asked Witness 4 to wait outside for him. [83] Witness 4 said he went to the intersection of Bromley Street and Lansdowne Street. He telephoned Nguyen who confirmed he was in a taxi. [84]
79. T 288.
80. T 288.
81. T 289.
82. T 289.
83. T 290.
84. T 290 to T 291.
Witness 4 said around 10 minutes later, Nguyen and Do arrived in a taxi each carrying two bags containing groceries. He greeted them and took them to the Beckenham Street house. He told them that Ngo was waiting to talk to them. Witness 4 said that Nguyen did not appear worried. [85] When they arrived at the house, Witness 4 saw Pham at the front of the house. Nguyen and Do greeted him and Pham nodded his head. Witness 4, Nguyen and Pham went into the lounge room where Witness 3 and Ngo were already waiting. [86] Do took the shopping bags into the kitchen. Witness 4 said that Ngo told Nguyen that she had found him a partner to help him manufacture ice, and he was waiting in the garage. Witness 4 heard Nguyen say something to Do and she went into a small bedroom (“bedroom 2”). [87] Witness 4 said he saw Nguyen then walk towards the garage via the back door of the house. [88]
85. T 298 to T 299.
86. T 299.34.
87. T 301; AB 190.
88. T 299-300.
Witness 4 said that Pham then left through the front door to go for a smoke and then he saw “three male persons bursting out” of another bedroom (“bedroom 1”). [89] He recognised one of the males as Ly but did not recognise the other two males. He said that one of those males did not look Asian or Vietnamese, but the other “definitely he is an Asian person”. [90] Witness 4 said that Ly was carrying a small handgun, [91] one of the other two males was carrying a sawn off shotgun, [92] and the other male was carrying a “Japanese sword” with a black handle. [93] In cross‑examination, Witness 4 accepted that in his July 2014 statement he said that he had seen “four males run out of the back bedroom” one of whom ran into the bedroom where Do was, carrying a weapon. [94] Witness 4 said when he made the statement “I couldn’t remember whether [there] were three or four males”. [95] He agreed that in the July 2014 statement he said that Ly was “holding an old style single shot gun”. [96] He said the second male was holding a small revolver, the third male was holding a “red handled Samurai sword…[which] I later found out was my sword”[97] and the fourth male was holding a kitchen knife. [98] In cross‑examination, he said that he “couldn’t remember clearly what weapons they carried” but they were “murdering weapons”. [99]
89. T 301.35.
90. T 303.
91. T 303.14.
92. T 303.47.
93. T 304.9.
94. T 495.
95. T 495.26.
96. AB 544 at [113]; T 496.
97. T 590; AB 544 at [117].
98. T 498; AB 545 at [120].
99. T 498.9-12.
Witness 4 said three men went along the hallway to the garage, [100] while he, Witness 3 and Ngo stayed in the lounge room. He said Witness 3 walked past him and said: "Now you understand, don't you?" [101] Witness 4 said that, after about 20 minutes, Nguyen was dragged into the lounge room by Ly and the two males. Nguyen's feet and hands were bound with cable ties and his hands were bound behind his back. [102] Witness 4 said that Nguyen was thrown to the floor. [103] He was bleeding from his face and mouth. Witness 4 said the three males continued to beat him and kick him to the body. Witness 4 said Witness 3 looked at him and gestured with his face towards bedroom 2. [104]
100. T 302.
101. T 306.1.
102. T 305.
103. T 306.13.
104. T 306.
Witness 4 entered bedroom 2 and saw Do lying face down on the bed with her hands tied behind her back and her legs tied with cable ties. [105] Witness 4 said there was a male in the bedroom. He was wearing a cap and he could not see his face. He said he was not “an Asian person”. [106] Witness 4 noticed that Do had injuries to her head. Witness 4 said the male appeared surprised and gave him a length of pipe. [107] Witness 4 said that Pham entered the room. Witness 4 asked Do what happened to her and she said “Don’t kill me. I do not know anything”. [108] Witness 4 said he replied, “If you know anything, tell them”. Witness 4 said the male then pushed him and Pham out of the bedroom. [109] Witness 4 said that he shut the door behind them. In his evidence‑in‑chief, Witness 4 was asked [110] :

“Q.   Was anything happening to Lien Do as you left the room?
A.   INTERPRETER: She was terrified but, after the door was shut, I didn’t know what else was going on in there.
Q.   Thank you for the answer, but my question was: Did you see anything happening to her as you left the room?
A.   INTERPRETER: No, I did not see anything else.” (emphasis added)
105. T 307.16.
106. T 307.46.
107. T 308.
108. T 308.25.
109. T 308.
110. T 312.

In light of the contents of Witness 4’s July 2014 statement it is not surprising that the Crown Prosecutor pressed this question. In cross‑examination, Witness 4 agreed that in that statement he said that the fourth male out of the group of males who previously burst out of the bedroom ran into that room (ie “bedroom 2”) holding a knife. [111] Witness 4 also agreed that it stated that, when he entered bedroom 2, [112] Do had dark yellow tape (about 30mm wide) over her mouth. [113] Witness 4 agreed that in his statement he said the male pulled the tape from Do's mouth, that Do then screamed out and the male placed a pillow over Do's head to suffocate her. [114] Witness 4 agreed that in his July 2014 statement he said at that point he looked at the male and then went back into the lounge room not knowing if Do was alive or dead, although he did not hear her make any more noises. [115] His statement did not refer to he and Pham being pushed out of the room [116] and that could not occur if the male was in the process of suffocating Do.
111. T 498.5.
112. T 498.1.
113. T 503.
114. T 504.
115. T 504-505.
116. T 505.
When Witness 4 was asked about the differences between his evidence‑in‑chief and his July 2014 statement on this, he said that he “couldn’t remember things” and “what is said in this statement is still quite fresh”. [117] He was pressed on why, when he was asked in chief, “Did you see anything happening to her as you left the room?”, he did not mention the male suffocating Do but instead said “I did not see anything else”. Witness 4 claimed that his memory was affected due to the passage of time. [118] When it was suggested that, even with the passage of time, he would not have forgotten Do being suffocated in front of him he replied that “suffocation does not mean death” and claimed he thought the male was only trying to stop her screaming. [119]
117. T 505.32.
118. T 618.15.
119. T 618.33.
The Crown contended that Witness 4’s explanation that he did not understand the placing of the pillow on Do’s face to be the fatal attack and thus “his lack of memory of that aspect of the incident may be accepted”. [120] I do not accept that contention. The clear impression given by Witness 4 in his July 2014 statement as revealed in cross‑examination is that when he left the room he thought Do might be dead. I consider these aspects of Witness 4’s evidence to be especially damaging to his credibility.
120. Crown subs at [56].
Witness 4 said that he then returned to the lounge room. He saw “lots of blood” around Nguyen and recalled Ngo saying: "Give it back. Do you want to give it back or not?" Witness 4 stated that it appeared that Nguyen was trying to say something but he was unable to because of the injuries to his mouth. [121] Witness 4 said that, as the three men took turns to beat Nguyen, Ly “grab[bed] hold of his head and smashed it on the floor” [122] and he was kicked in the abdominal area. [123] He said that throughout this beating both Ngo and Witness 3 were present. [124] Witness 4 said that a short time later, Ngo stood up and handed a small brown cardboard box to the male carrying the sword and said to him loudly: "Do it". [125] The male opened the lid and Witness 4 saw that it contained a “stack of $50 notes”. [126]
121. T 313.
122. T 317.42.
123. T 318.20.
124. T 317-318; T 318.2.
125. T 316.37.
126. T 316.47.
Witness 4 said that Ly then took a piece of rope and wrapped it around Nguyen's neck. [127] He said that Ngo then left and Witness 3 accompanied her. [128] He said that Witness 3 stopped him and told him to “Stay back” and “help in tidying up the place” as he had “something … to take [Ngo] to”. [129] Witness 4 said that Ly stretched out the rope, wrapped it around Nguyen’s neck and then “pulled back”. [130] He said that Ly was standing behind Nguyen and pulled him up from the floor to a “sitting position” and the other two males helped pull Nguyen up to a standing position. [131] Witness 4 said that Ly then “turned the rope and himself so that his back was touching the back or the back of Sonny”. [132] He said their backs were touching and Nguyen was lifted off the ground. [133] Witness 4 said that he walked towards the front door to the house and as he did so “I saw [Nguyen’s] legs stop kicking”. [134] He noticed that there was something in his mouth.
127. T 318.
128. T 318.
129. T 319.15.
130. T 320 to 321.
131. T 321.
132. T 322.3.
133. T 322 to 323.
134. T 322.43.
Witness 4 said that he stayed on the front verandah with Pham for around 15 minutes. He said that he rang his brother and told him he was at a party arranged by Witness 3’s brother. [135] In cross‑examination he was taken to his July 2014 statement in which he claimed that these calls were made at 8.20 and 8.31pm. [136] He agreed that he identified those times based on call charge records but was later told he was mistaken because those calls were made to a number associated with Ngo. [137]
135. T 323.
136. AB 550 at [151]; T 511.
137. T 511 to T 512.
Witness 4 said that Ly then called him and Pham inside. When he entered, he saw two large plastic bags, similar to a garbage bag but “bigger and longer”, [138] with strings to tie one end up. [139] Witness 4 said he did not see what was inside the bags but “thought it was the bodies of [Do] and [Nguyen]”. [140] Witness 4 said that Ly brandished his gun and said “choose … one of you – you decide which one is to clean up the place”. [141] Witness 4 said that he and Pham chose what they thought was the lighter bag and carried it to Pham’s car. [142] He said he was wearing plastic gloves. [143] He said he noticed the smell of blood in the lounge. Witness 4 said that when carrying the bag he thought he could feel Do’s head because of her long hair which was braided and she felt less heavy than Nguyen’s body. [144] Witness 4 said they placed the bag in the boot of Pham’s car which was parked in the front yard [145] Witness 4 said he also took Do’s bag which included some personal papers and two mobile phones, [146] as well as Nguyen’s bag. [147]
138. T 514.
139. T 328.19.
140. T 328.43.
141. T 329.5.
142. T 329.
143. T 330.
144. T 330.
145. T 330.34.
146. T 332.
147. T 332.
Witness 4 said he and Pham left the Beckenham Street house at 9:00pm. He received a call from Witness 3 who told them to go to the “Hungry Jack's restaurant” on Cabramatta Road. [148] Witness 4 said that that when they arrived at Hungry Jack's, Witness 4 saw Ngo's car in the carpark.^[149] Witness 4 said that he and Pham entered the restaurant and sat with Ngo. Witness 4 ordered meals for Ly and Pham and then went outside. He said that while he was outside, Witness 3 came outside and asked “[w]as everything done” and he replied “[d]one”. [150] Witness 3 told him to destroy Nguyen and Do’s personal belongings as soon as possible. Witness 4 said he then started to burn the papers and Witness 3 told him not to do it there. Witness 4 also said that Witness 3 told him to dump Do's body in an isolated location. [151] Witness 4 stated that he did not wear gloves again that night as he had thrown them away earlier. [152]
148. T 333.
149. Ex AD is a photograph of the Hungry Jack's marked to show where Ngo's car was parked and where Pham parked his car (T 335).
150. T 335.47.
151. T 335-336; T 342.
152. T 342-343.
Witness 4 said that he and Pham left Hungry Jack’s and drove along Camden Valley Way. He said that at, as they were driving, he threw Do's and Nguyen's phones out of the car hoping they would be run over and also threw out their personal papers. Witness 4 said he could not recall the roads they drove along because it was too dark. [153] Witness 4 said that they drove for over half an hour before they disposed of Do’s body but before they did so they stopped at a new development site along Camden Valley Way. Witness 4 said he suggested they put Do’s body into a lake on the site but Pham disagreed. He said that Pham then made a “U turn”, drove for twenty minutes along a dark stretch of road and stopped at what the thought was a farm because he could smell manure. [154] Witness 4 said he could see a few houses and the area “looked like a religious school”. [155]
153. T 343.
154. T 344.
155. T 344.
Witness 4 said that he and Pham took Do’s body out of the car “and threw it on the side of the road and I can say that is farm area”. [156] When reminded of his July 2014 statement, he clarified that he and Pham threw her body over a fence which he thought was an “old wire fence”. [157] Witness 4 said he did not “think [he] walked that far” from their car to the fence. [158] Witness 4 said that a year later he tried to direct police to the location where he and Pham had dumped Do's body, however he was unable to find it without their help. [159]
156. T 345.
157. T 348.
158. T 348.
159. T 343.
Witness 4 said that, as they were driving away, he received a message from Witness 3 telling him to return to the Hungry Jack's restaurant which they did. Witness 4 said when they arrived, Witness 3 and Ngo were there waiting for them.^[160] He said that Witness 3 asked “whether it was done”. Pham nodded his head and said that it was. Witness 4 recalled that Ngo said: "It's finished, go home and rest". [161] She then stood up and went outside with Witness 3 following her. As he left, Witness 3 told them “What was done tonight, best forget”. [162] Witness 4 said that Pham drove him to his home. [163]
160. Ex AE is a photograph of the Hungry Jack's car park marked to show where Ngo's car and Pham's car were parked on the second occasion they went to the Hungry Jack's (T 349-350).
161. T 350.22.
162. T 350.26.
163. T 350.

11 April 2013 and Afterwards

Witness 4 said he could not remember whether he had both his Samurai swords the following day. [164] He said that the following afternoon he met Witness 3 in front of his house. [165] Witness 4 said that within a few days he read a newspaper article about the discovery of Nguyen's body in Bankstown. [166]
164. T 351.
165. T 351.
166. T 351.
Witness 4 said that he went to Ngo’s house two or three days later to ask about some money she owed him, but no one was home. [167] He called her phone, but it was answered by her younger brother. Witness 4 said that he saw Ngo once on the street. They exchanged brief greetings and there was not enough time to discuss the money she owed him. [168] In cross-examination, Witness 4 agreed that in his July 2014 statement he had referred to attending a barbecue at Ngo’s place about four days after the killing. [169]
167. T 351.
168. T 352.
169. T 526.

Witness 4 stated that he only spoke to Ly on one occasion after 10 April 2013 when Ly called him. Witness 4 said that Ly accused him of stealing the drugs, which Witness 4 denied. Witness 4 said that he arranged to meet Ly in a park but was not asked whether the meeting happened. [170]
170. T 353 to T 354.

Witness 3’s Evidence

Like Witness 4, Witness 3 also received an undertaking from the Attorney-General concerning the use of his evidence. [171] Witness 3 was first approached by the police on 21 May 2014. On 23 May 2014, he provided a statement denying any knowledge of Nguyen or Do’s death.^[172] Witness 3 stated that he had met with Ngo prior to him giving this statement. [173] After taking legal advice, Witness 3 provided an induced statement to police dated 4 July 2014. The statement was not tendered or marked for identification, but some of its contents were adduced in cross‑examination. It clearly incriminated the applicants. [174] He also participated in a recorded “walk through” interview with police at the Beckenham Street house on 4 August 2014. [175]
171. AB 524.
172. AB 582.
173. T 781.
174. See T 706; 857.21.
175. See T 861.
In his evidence‑in‑chief, Witness 3 said that sometime between September and November 2012, he met Ngo at the Cabramatta Leagues Club when he attended a karaoke competition with Witness 4. [176] Witness 3 was married with children. He was also unemployed at the time but pretended to Ngo that he had a job. [177] Witness 3 said he had known Witness 4 for about one to two years prior to then. Witness 3 said that later in 2012 he commenced a relationship with Ngo. Ngo was not aware that he had a wife and children. [178] Witness 3 said he did not know what Ngo did for work when he first met her, but he came to understand that she was doing something illegal as he had seen her use three or four phones in her bag. [179] Witness 3 said that Ngo paid for everything. [180]
176. T 707.
177. T 793.
178. T 708-709; T 793.
179. T 709-710.
180. T 710.
Witness 3 said that he first met Do in 1998 when she was his brother's girlfriend. He believed that he first met Nguyen at a fish and chip shop at Casula at a meeting organised by Ngo few months after they started going out [181] but more than a month before 10 April 2013. [182] He said that Ngo told him that they were going to meet a person who cooked ice and that he would be able to teach him. [183] Witness 3 denied that he was involved in manufacturing drugs at the time. [184] In cross‑examination, it was put to Witness 3 that, in his statement dated 23 May 2014, he stated that he had met Nguyen one year before this. Witness 3 said what he had said in that first statement to police was not true. [185]
181. T 711.
182. T 713.
183. T 712-713.
184. T 714.
185. T 810.
Witness 3 stated that after Ngo and Nguyen had agreed that Nguyen would cook ice, Ngo spoke about renting a house and Witness 4 agreed to put his name on the lease. Witness 3 stated that he was not involved in selecting the house (“I did not know how to cook ice, so I don’t know how to select [a house])”. [186] In cross‑examination he denied arranging the lease, denied taking Witness 4 to show him the house and denied telling Witness 4 that the Beckenham Street house was for him and Ngo to be together. [187]
186. T 716.
187. T 819 to T 821.
Witness 3 said he first went to the Beckenham Street house one or two weeks prior to 10 April 2013 with Ngo, Witness 4 and Pham. [188] He said he went to the house because Ngo had told him to use it to make ice. [189] Witness 3 said that he helped Nguyen set up the house including helping him buy a freezer. Witness 3 said that he paid with cash that Ngo provided. [190] In cross‑examination, he denied buying glassware with Witness 4. [191] Witness 3 stated that, even though he assisted, he had no idea about how to set up a laboratory to cook ice. [192] He also said that, even though he told Nguyen he wished to learn, he had no real interest in doing so. [193] Witness 3 said that, in the weeks prior to 10 April 2013, Nguyen worked at the Beckenham Street house to cook ice. Witness 3 said that Ngo wanted him to be the main person to watch over Nguyen and to also learn how to cook. Witness 3 stated that whenever Nguyen was working, at least one of Witness 3, Pham or Witness 4 was present because Ngo was concerned that Nguyen might steal something. [194] Witness 3 said that while he was present with Nguyen, he, Witness 3, smoked marijuana or drank beer. [195]
188. T 716.
189. T 717.
190. T 717-718.
191. T 819.
192. T 725.
193. T 726.
194. T 728.
195. T 728.
In cross‑examination, Witness 3 agreed that someone who could be trusted had to always be with Nguyen but denied that he was a trusted member of the group. [196] In his evidence‑in‑chief, he agreed he said that he did not see Do at Beckenham Street prior to 10 April 2013. However, in cross‑examination he agreed that in his July 2014 statement he said that Do had attended. [197]
196. T 852.
197. T 823.
Witness 3 said that on 9 April 2013 he attended at Beckenham Street to watch Nguyen cook ice. He said that Nguyen stopped cooking early that afternoon and left some time after 3:00pm. After he left Witness 3 said “we closed the door and we left". [198] Witness 3 exchanged text messages with Nguyen just before midnight. [199]
198. T 730.8.
199. T 731 to T 733.
Witness 3 said that, on the morning of 10 April 2013, he woke up and drove Ngo to Cabramatta in her white Suzuki. He stated that he expected Nguyen to be working at the Beckenham Street house as usual that day. [200] Witness 3 said that after dropping Ngo at Cabramatta, and while he was driving to Beckenham Street, he received a call from either Pham or Witness 4 who told him that the Beckenham Street house had been broken into and everything had been stolen or broken. [201] Witness 3 said that he then called Ngo and told her what happened. She told him to call “Kevin” (ie, Ly) so that he could go and look for Nguyen and “the stuff”. Witness 3 said he did not know who Ly was except that he was Ngo's friend. He said he had met Ly two or three times prior to 10 April 2013. [202] Witness 3 said he called Ly about 1:00pm. Witness 3 said he told Ly that he was passing on a message from Ngo and that she wanted him to go to Beckenham Street. [203]
200. T 735.
201. T 736.
202. T 737, T 748.
203. T 738.
After speaking to Ly, Witness 3 arrived at the Beckenham Street house. He said that Pham and Witness 4 were there “and [he] perhaps saw Kevin”. [204] He said that Pham’s car was parked on the lawn. [205] Witness 3 said that the garage door had been prised open at the bottom left-hand comer. [206] He entered the garage and saw broken glassware. Witness 3 said that when he had last been in the garage, it had contained partially manufactured drugs in liquid form. [207] Witness 3 recalled that Ly entered the garage, had a look and then left. [208] Witness 3 said it was still daylight. [209] Witness 4 said that Ngo arrived and became angry. She told him to call Nguyen and ask him to come back. [210]
204. T 739.10.
205. T 739.
206. T 739; T 741.
207. T 742-743.
208. T 744.
209. T 751.
210. T 744-745.
Witness 3 agreed that he had sent a message to Nguyen at 13:16:52: [211] "How is it going with your court, brother? Good luck, I'm at Parramatta work today. When you come back to work, let me know before you get here, so I'll come. OK?" Witness 3 said that reference to 'court' was a reference to Nguyen's court case in relation to custody of his children. [212] In cross‑examination, Witness 3 said when he sent that message, he was not yet aware of the break-in at Beckenham Street [213] even though in his statement he said he received the call from Pham advising him of the break-in at 11.00am. [214]
211. See Ex AG.
212. T 748.
213. T 828.
214. T 828 to 829.
Witness 3 said that he, Pham and Witness 4 remained at the house all afternoon. He said it took about one hour before he was able to get a hold of Nguyen. Witness 3 said that he said to Ngo: "Perhaps just wait for him to come and get the stuff back, but don't do anything to him"; [215] he said "When Sonny arrives, let him do it - get the things back, let him do it, he's a good man. His problem is with his children". [216] Witness 3 stated that Ly later returned with two males, entered the garage, had a quick look and left within one or two seconds. He recalled that Ly said: "Don't worry, I'll get the stuff back, sis". [217]
215. T 752.48ff.
216. T 753.3ff.
217. T 754.46ff.
Witness 3 said that, about an hour later and just before dark, Nguyen arrived. Nguyen asked Witness 3 what had happened. Witness 3 told him that someone had broken in and had taken everything. Witness 3 said he was aware that Nguyen was suspected of the break-in. Witness 3 did not see Do. [218] In cross-examination, Witness 3 stated that he could not recall leaving the Beckenham Street house and collecting Witness 4 from Cabramatta. He said he believed that Witness 4 was already at the Beckenham Street house. He also said he did not take Witness 4 to the Lurnea House that afternoon. [219]
218. T 757.
219. T 837 and T 855.
Witness 3 said that when Nguyen entered the garage he walked toward the roller door and Ly entered the garage immediately afterwards with two other males aged between 20 and 30. [220] Witness 3 said that Ly was holding something in his hand which was about 30cm long. He said it had a handle made of timber and the other end looked like metal. [221] Witness 3 said it looked like a shotgun. Witness 3 said that Ly pointed it at Nguyen and made him kneel down.
220. T 754; T 757.
221. T 758.50 to T 759.1.
Witness 3 said that when Nguyen knelt down, one of the two males pulled out a plastic zip tie from his pocket, told Nguyen to put his hands behind his back and tied them. [222] Nguyen said: "I didn't do it, I didn't do it". [223] Witness 3 said that Ly then told him “Get out, out”. [224] Witness 3 said he then left. [225] In cross‑examination, Witness 3 agreed that in his July 2014 statement, he said that he had not seen Ly or anyone else hit Nguyen before he left. [226] However, in his walk through in 2014 he told police that he saw Ly hit Nguyen in the face with a piece of wood he thought was a shotgun. [227] He agreed he said that and said that it was true. [228]
222. T 760.48.
223. T 760.2; T 761.1.
224. T 761.25.
225. T 761.31.
226. T 861.5.
227. T 861-862.
228. T 860-861.
Witness 3 said that when he left the garage, he went into the house and walked towards the front door, without entering any of the bedrooms. He said that Witness 4 told him that Do was “in the room”. [229] He did not look inside that bedroom. [230] Witness 3 said he left and got into Ngo's Suzuki. [231] In cross-examination, Witness 3 denied being in the lounge room when Nguyen was brought in. [232]
229. T 763.50.
230. T 765.3.
231. T 764-765.
232. T 837.
Witness 3 said he waited in the car for an hour or so. [233] He said that Ngo called him and asked where he was. He told her that he was sitting in a car on the street at the front of the house. He said that Ngo eventually came out to the car which was parked two houses away. Ngo told him that Nguyen had admitted to taking the drugs. Witness 3 said he told her “That’s good, take the stuff back and let him do it again” (ie, making ice). [234] Witness 3 said that Ngo said nothing further. He drove them both to Hungry Jack’s at Cabramatta and waited. [235]
233. T 765-766.
234. T 767.34.
235. T 767.
Witness 3 said he and Ngo arrived at the Hungry Jack’s restaurant sometime between 8:00 and 9:00pm. [236] Witness 3 said he bought food. Witness 3 said he told Ngo "After you get the stuff, let him continue working there". [237] Witness 3 said that Ngo shrugged her shoulders. He said Ngo told him if she felt that things were alright with him then she would allow him to continue working. [238]
236. T 773.32.
237. T 773.37.
238. T 774.
Witness 3 said that an hour after they arrived at the Hungry Jack's restaurant, Pham and Witness 4 arrived in Pham’s car. Witness 3 asked them “could you get the stuff? How come it’s too long”, “What happened”. In part of his evidence that was only led against Ngo, Witness 3 said that Pham replied: "Fuck, they killed both of them". [239] Witness 3 said that Pham looked scared and appeared pale. [240] Witness 3 said Pham said that "he couldn't control because the other people did it and he could not stop". [241] Witness 3 said that was the first time that Witness 3 had heard of anyone having been killed and he felt shocked. Witness 3 said that he asked them where the bodies were. He said that Pham or Witness 4 told him that Ly and the two males took one of the bodies and dumped it and then returned and told them to dump Do’s body (“it is your turn now”). [242] Witness 3 said that when Ngo heard it, she was “shocked, scared and a little startled”, but did not say anything. [243] In cross‑examination, Witness 3 stated that he understood from Pham and Witness 4 that Do's body was in the boot of their car, but they did not specifically say that. Witness 3 denied that he told them to go and dump Do’s body. [244]
239. T 774.46.
240. T 774.
241. T 775.6-7.
242. T 776.10.
243. T 776.
244. T 839.
Witness 3 said that he and Ngo left Hungry Jack’s. Although he did not remember the time he left, Hungry Jack’s was open until 11.00pm and he believed he left then. [245] He stayed at Ngo’s place. [246] Witness 3 said that he remained in a relationship with Ngo but in June 2013 she found out that he had a wife and children. He said she became upset. Witness 3 said the relationship ended in October 2013. [247]
245. T 777.16.
246. T 777.
247. T 778.
Towards the conclusion of his evidence‑in‑chief, the Crown Prosecutor was granted leave to put a series of leading questions to Witness 3 which included questions that arose out of Witness 4’s evidence. The questions highlight the significant differences in their evidence including:

Witness 3 denied that he suggested to Witness 4 that he work for Ngo in her drug manufacturing business; [248]
248. T 784.20.
Witness 3 denied playing any part in organizing Witness 4’s trips to Perth to transport ice, [249] although he admitted that, each time Witness 4 returned from Perth, Witness 4 gave him, Witness 3, around $1,000; [250]
249. T 785.2.
250. T 785.8.
Witness 3 denied that any ice was cooked at the Lurnea House. [251] In cross‑examination Witness 3 stated that the Lurnea House was only used to store pseudoephedrine for Ngo and that he and Pham transported it there for her. [252]
251. T 786.21.
252. T 831.
Witness 3 denied he was aware in advance of any plan that Nguyen would be seized by Ly and others or that he stayed in the house longer than he stated; [253]
Witness 3 denied that he had gestured to Witness 4 to enter the bedroom where he believed Do was to be, that he saw Ngo hand a box of money to Ly and say words to the effect of 'Do it' or 'Just do it', and that just before he left the house he gave instructions to Witness 4 and Pham to dispose of Nguyen's and Do's belongings; [254]
Witness 3 said he could only recall Pham and Witness 4 coming to Hungry Jack’s once on the evening of 10 April 2013 and not twice; [255]
Witness 3 denied being aware that Nguyen and Do were dead before Pham and Witness 4 arrived at Hungry Jack’s; [256] and
Witness 3 said he remembered being told that Do’s body was in the boot of Pham’s car but could not remember whether Pham or Witness 4 told him that. He denied that he told them to find an isolated location to dispose of the body or that he found Witness 4 burning Do’s personal items in the carpark and became angry with him. [257]
253. T 787.
254. T 787-788.
255. T 788.
256. T 787-788.
257. T 788.

Independent Evidence – Attendance and Use of Premises for Drug Manufacture

Before addressing the various contentions raised about the evidence of Witness 4 and Witness 3, it is necessary to note other evidence at the trial that was not dependent, or at least solely dependent, on the credibility of Witness 4 or Witness 3 and which potentially demonstrated the connection between Ngo, Ly, Witness 3, Witness 4, Pham, Nguyen and Do, their involvement in a drug supply business and the presence of at least some of them at or near the Beckenham Street house on 10 April 2013.
The Crown tendered invoices recording Nguyen and Do’s purchase of laboratory equipment on 25 March 2013 and 9 April 2013. [258]
258. T 87, Ex N; T 90-91, Ex O; T 945.
According to the Crown, “[t]here was evidence that Ms Ngo knew Mr Ly, the two deceased, as well as [Witness 3] and [Witness 4] the two Crown witnesses”. I accept this, save that there was no independent evidence of a connection between Ngo and Ly. As noted, Ngo made a statement to police on 23 May 2014, [259] in which she stated that she was in a relationship with Witness 3, that she knew Do and Nguyen from the Cabramatta area and would call Do on her mobile phone. The Crown tendered photographs taken at a birthday celebration for Ngo held on or around 30 March 2013, showing her in the presence of Witness 3, Witness 4 and Pham. [260] On the night of 9 April 2013, Nguyen's mobile phone service sent Pham a text message asking for a number for "Chi". [261] A few minutes later a text was sent from Witness 3 telling Nguyen: "... i gone home to my house now not chi dung house ...". [262] Witness 3 gave evidence that "Chi" was a reference to Ngo. [263]
259. Ex AY.
260. Ex V, T 234, 723.
261. Ex AG at 23:47:55.
262. Ex AG at 23:52:17.
263. T 732; Ex AG; Ex U.
There was evidence suggesting that a drug manufacturing operation had been conducted from the Lurnea House. The occupier, Ms Tran, said that in December 2012 [264] Ngo, Witness 3 and Witness 4 asked to use a room in the house to “store his [ie, Witness 3’s] stuff”. [265] She provided the keys to Witness 3. [266] Ms Tran only visited the house irregularly. Ms Tran said that when she went back to the house on 13 March 2013 [267] there was a very bad smell, furniture had been moved out of the bedroom, which now had a lock on the door, and blinds made it impossible to see in from outside. When police attended the Lurnea House on 6 March 2015, several items potentially related to drug manufacture were located, and there was an indication of the presence of cocaine on a bedroom wall. [268]
264. T 636.
265. T 636.41.
266. T 638.15.
267. T 638.
268. T 191-192.
There was evidence of a connection between Ngo and the Beckenham Street house. When police searched her flat at Casula on 26 August 2014, a set of keys was seized from a table in a bedroom. [269] One of those keys was found to fit two locks at the Beckenham Street house, one being a lock attached to the bedroom at the front of the house [270] and the other being a lock on a bolt still in place on the outside of the door to another bedroom. [271]
269. T 673-674.
270. T 676.
271. T 677.
There was also evidence that Ngo and Pham were present at the Beckenham Street house on 10 April 2013. Stills from CCTV cameras show Ngo with Witness 3 in the Cabramatta CBD between 11:09am and 12:08pm that day, as well as Ngo's Suzuki. [272] A “Google” image shows Ngo's Suzuki motor vehicle and Pham's Astra motor vehicle parked outside the Beckenham Street house at 2:15pm. [273] It was submitted that this does not demonstrate the presence of Ms Ngo at the house given the evidence that Witness 3 used her car. [274] I consider that it is at least capable of supporting that inference.
272. Ex AK, AB 282, T 663.
273. T 1044; AB 498.
274. Tr 11/06/2021 p 55.5
The call charge records that were tendered confirm that there were numerous telephone contacts in the form of voice messages and SMS messages between Ly and Witness 3’s telephones on the afternoon of 10 April 2013. [275] They also show Witness 3’s service contacting Nguyen's service and Witness 4’s service contacting Do's service.
275. Ex U, p 22.

Records for the mobile phone service attributed to Ly indicate that between about 12:30pm and 1:30pm the service was using cell towers in the Cabramatta/Lansvale/Carramar area. He then used a cell tower at Campbelltown at 2:36pm, before returning to the earlier areas from about 6:15pm. At 7:58pm, his phone made a call using a cell tower at Carramar, in the vicinity of the Beckenham Street house. [276] The same maps indicate that around 11.24pm his phone used a cell tower at Bankstown which is in the general vicinity of where Nguyen’s body was located. [277] This provides some support for, or is at least not inconsistent with, the suggestion that Ly went to Campbelltown earlier in the day to look for Nguyen, was at the Beckenham Street house from around 6.15pm and participated in the dumping of Nguyen’s body. [278] However this cannot be taken too far. These areas of coverage for the relevant cell towers are densely populated suburban areas. The attachment of his phone to particular mobile tower does not come close to demonstrating his attendance at a particular location within those areas.
276. Ex BL, p 1-3.
277. Ex BL at p 3- Tr 11/06/2021 p 38
278. Tr 11/06/2021 p3
Records from the Children’s Court at Campbelltown show that Nguyen and Do both appeared in the registrar's callover at the Children's Court in Campbelltown, which commenced at 9:30am. [279] The phone records in Exhibit U indicate Do's mobile phone service was used to make and receive calls and send and receive text messages on 9 and 10 April 2013. On the afternoon and evening of 10 April 2013, her phone was in contact with Witness 4’s service, at around 4:13pm, [280] and again at 6:46pm, [281] 7:22pm and 7:58pm. [282] The last active use of her phone was at 7:58pm, being a 13 second call from Witness 4’s service to Do's. Subject to the entries for 16 April 2013 discussed below, her service did not initiate any calls or messages after that time, and while other phone services continued to call or text Do's service, the calls were unsuccessful. Nguyen's phone service was also in use on 9 and 10 April 2013, and the last active use of that service was at 8:08pm. The last call for each service utilised a cell tower at Cabramatta East, which is in the vicinity of the Beckenham Street house. [283]
279. T 699.
280. Ex U, p 27.
281. p 31.
282. p 32.
283. Ex BL, p 5-6.

Independent Evidence - Forensic and DNA Evidence

The Crown contended that there was support for Witness 4’s account of the killing of Nguyen in the evidence of the forensic pathologist Dr Szentmariay. The Crown noted that Witness 4 described Nguyen's hands being tied behind his back with cable ties, with his feet similarly tied. [284] He described seeing blood on Nguyen's face and on the ground, [285] and an injury to his mouth. [286] He described seeing Nguyen being kicked to the body and then strangled with a ligature. He also described something being used to cover Nguyen's mouth. [287] In an interview, he said that a white object was put in his mouth. [288]
284. T 305.
285. T 305.
286. T 313.
287. T 322.
288. T 630.
When Nguyen's body was found, his hands were tied behind his back with cable ties. Dr Szentmariay stated that his body had visible strangulation marks on his neck and blood coming from his mouth and nose. His body had extensive, bilateral deep and superficial anterior neck soft tissue injuries with bilaterally fractured thyroid cartilage. These were a strong indication of excessive force to the anterior neck area. [289] The transverse ligature mark suggested force was applied from behind the neck. [290] There were pieces of wet paper in Nguyen's mouth, nearly completely obstructing the upper airways. [291] There were further blunt injuries, numerous superficial and deep injuries on the back of the torso, mostly over bony prominences, and contusions over both knees, [292] as well as extensive soft tissue injuries to both sides of the face, lips, and front of scalp. [293] Clearly these injuries are consistent with Witness 4’s description of Nguyen’s death. It was not suggested that the details of his death were made public before Witness 4 came forward. [294]
289. T 149.
290. T 149.
291. T 150.
292. T 151.
293. T 152.
294. Tr 11/06/2021 p 20.47
Witness 4’s evidence about the disposal of Do’s body is set out above. As noted, he could not direct the police to the place where the body was found. To the contrary, the police took him to that location. [295] Nevertheless, the Crown contended that the location of the body supported Witness 4’s account. As noted, he described disposing of Do’s body in a “farm area” and that he and Pham threw it over an old fence which he thought was an “old wire fence” (see [44]). Do’s body was found approximately 3.53 metres south of a fence, [296] which was about four feet tall. [297] It separated a property from the side of a road. The fence consisted of star pickets and barbed wire. [298]
295. T 957.
296. T 109.
297. T 100.
298. T 108 (shown in photograph 8 of Ex Q).
As noted, in his evidence Witness 4 said that at Beckenham Street he saw two large plastic bags containing the bodies. He said they were similar to a garbage bag but “bigger and longer”, [299] with strings to tie one end up. [300]
299. T 514.
300. T 328.19.
Do’s body was not found in a large black plastic garbage bag. Instead it was found wrapped in a pink floral doona cover which was contained in a black inflatable mattress made of heavy rubberized plastic. [301] The Crown contended that it was not dissimilar in appearance to a large plastic garbage bag. This can be accepted although the wrapping on Do’s body did not have a string to tie one end up.
301. T 114; T 126; Ex Q, photographs 23; AB 108.
Nguyen's body was found wrapped in two bedsheets, one with a flower pattern, the other with thick multi-coloured stripes. [302] The Crown submitted that this does not affect the evidence of Witness 4, who did not participate in the disposal of Nguyen's body and did not see what happened to it after it left the Beckenham Street house. That said, it is difficult to see why those who dumped Nguyen’s body would remove it from any plastic bag that contained it and keep the bag. Ultimately, nothing in the wrapping of both bodies provides any real support for Witness 4’s evidence and the wrapping of Nguyen’s body tends to undermine it.
302. T 135; Ex H; AB 138.
A swab from Nguyen's left wrist yielded a DNA mixture from at least three individuals. Mr Dat Quoc Le could not be excluded as a minor contributor. The additional contributor was not suitable for comparison due to the low level. [303] Dat Quoc Le was the husband of Nguyen's niece, Stephanie Le. [304] He gave evidence that Nguyen borrowed money from him in the days before he died. [305] There was nothing to suggest he had any role in his death. Witness 4’s DNA was not found on Do’s body.
303. T 991.
304. T 650-651.
305. T 917-918.
One matter raised by the applicants concerns the absence of Ly’s DNA on Nguyen's body. Ly’s submissions contended that the offence described by Witness 4 involved extensive unshielded contact between himself and Nguyen while Ly was dressed in t-shirt and shorts with no gloves. Witness 4’s evidence describing the manner in which Ly killed Nguyen, is set out above. It was not clear from Witness 4’s evidence whether Ly participated in beating Nguyen with his fists or at least in some way that involved skin to skin contact between them. Witness 4 described Ly as wearing only a t shirt and a pair of shorts. [306] He was not wearing gloves. [307] The Crown submitted that the method of killing described by Witness 4 did not necessarily involve skin to skin contact between Ly and Nguyen or, if it did, such skin contact that would necessarily result in transfer of DNA. That can be accepted but equally there was at least the strong potential for DNA transference from Ly to Nguyen if the killing had unfolded as Witness 4 said it did.
306. T 302.
307. T 609.
In relation to the Beckenham Street house, Witness 4 described Nguyen as having been dragged from the garage into the lounge room with blood on his face, [308] suggestive of him having been bleeding while in the garage. Witness 4 said that when the door was open and he was brought into the lounge room “there was blood not only on Sonny, Sonny’s face but it was on – on the ground”. [309] Witness 4 said that “[a]fter Sonny was thrown down on the floor, even [though] he was bleeding from the face and his mouth, he …. continued to be beaten … he was kicked on his body”. [310] Later in his evidence he said there was a “blood smell that came from the floor”. [311] In cross‑examination, Witness 4 agreed that in his statement he said that when he and Pham returned into the lounge from the verandah the other two men were cleaning the timber floor where Nguyen’s blood had been. [312]
308. T 305.
309. T 305.29.
310. T 306.
311. T 329.50.
312. T 514.14.
The police first obtained access to Beckenham Street pursuant to a search warrant on 4 August 2014, when walk-through interviews were conducted with Witness 3 and then Witness 4. [313] The house had been occupied by other people in the period since 10 April 2013. A fingerprint examination was conducted of areas likely to be touched by hands, [314] with no relevant result. There was a positive test result for blood on a stain on a bedroom wall. [315] A black cable tie was found attached to a steel grille inside a window in the garage. [316]
313. T 679.
314. T 909-910.
315. T 902.
316. T 907.
An examination was conducted for latent bloodstains with luminol, which can sometimes detect blood after cleaning. [317] A portion of floorboards that yielded a positive luminol test was removed for further testing. [318] On one section of the floorboards, the mixed DNA profile was too weak and complex for further interpretation. [319] The other yielded a DNA mixture from at least two individuals, the major contributor having the same profile as Mr Thang Van Pham and the minor contributors being unsuitable for comparison due to the low level. [320]
317. T 903.
318. T 905.
319. T 992.
320. T 993.
Mr Thang Van Pham said that he visited the Beckenham Street house on two occasions, about two years before making a police statement on 4 December 2014. [321] On one occasion he sat in the lounge room. [322] He suggested he had been smoking heavily and was coughing up blood. [323] He did not know Nguyen or Do. It was not suggested that he had any connection to the deaths of Nguyen or Do or to any of the above persons.
321. T 981.
322. T 982.
323. T 983.
The Crown submitted that, given the passage of time, the events described by Witness 4, and the occupancy of the house, the absence of forensic evidence linking the house to the deaths of Nguyen and Ngo was not significant. In cross‑examination, the Crown’s DNA analyst agreed that it was possible that if the conditions are favourable, DNA could be found indoors months and even years after the event. [324]
324. T 996.50 to 997.2.

Conclusion in Relation to the Independent Evidence

The evidence concerning the location and state of Do’s body provides some support for Witness 4’s evidence that he was involved in its disposal, although his description of it being wrapped in something akin to garbage bag, renders that support marginal. The evidence concerning the state of Nguyen’s body provides some support for Witness 4’s evidence about the manner of his death. The evidence concerning how his body was wrapped tends to but does not necessarily contradict Witness 4’s evidence about how his body was prepared for disposal.
The independent evidence is capable of establishing that Ngo, Witness 3 and Witness 4 knew each other, were involved in a drug manufacturing business, that Nguyen and Do were involved in drug manufacturing business and that all of them as well as Pham and Ly were in contact on 9 April and 10 April 2013. However, none of this evidence (including the forensic evidence) constitutes any evidentiary support for the contention that Nguyen, Do or Ly ever attended the Beckenham Street house on any day including on 10 April 2013, much less that Nguyen or Do died there. The most the independent evidence is capable of establishing is that Ngo and Pham were at the Beckenham Street house on 10 April 2013, that Nguyen, Do and Ly were in the general vicinity of that property on that day and that Ly was in the general vicinity of the location where Nguyen’s body was dumped later that evening. Further, to the extent that the evidence is capable of suggesting they were involved in drug manufacturing or supply there is no independent evidence suggesting that Ngo had any greater role than anyone else including Witness 4, Witness 3, Pham or Nguyen. There is no evidence that any of the relevant persons attended the Hungry Jack’s restaurant on the evening of 10 April 2013.
Otherwise, there is no forensic evidence linking any of Ngo, Ly, Pham, Witness 4 or Witness 3 to the deaths of Nguyen or Do, even though the evidence of Witness 4 suggests that there was at least a reasonable possibility of DNA transference between Ly and Nguyen.

Were the Verdicts Unreasonable?

As noted, each of the applicants contend that the guilty verdicts were unreasonable and could not be supported by the evidence. In RD (a pseudonym) v R [2021] NSWCCA 94 at [7], Macfarlan JA referred to the different formulations of this ground as follows:

“The unreasonable verdict ground relied upon by the applicant invokes s 6(1) of the Criminal Appeal Act. As I said in Prasad v R [2020] NSWCCA 349 at [119] with the concurrence of Wilson and N Adams JJ, the question to be addressed by the appellate court in this context is “whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty” (R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [66], approving M v The Queen (1994) 181 CLR 487 at 494-495; [1994] HCA 63). To similar effect it was stated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (and see [1]; [117]) that “the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt” (emphasis in original). In Pell v The Queen [2020] HCA 12; (2020) 94 ALJR 394 at [43]-[45], the High Court confirmed that these formulations are both authoritative and consistent with each other.”

It follows from the above discussion of the independent evidence, that the Crown case relied almost exclusively on the evidence of Witness 4 and Witness 3. In light of the manner in which the Crown Prosecutor addressed and the Murray direction, the guilty verdicts could not be sustained without an acceptance of Witness 4’s evidence including those aspects of his evidence which had no support in any independent evidence including the forensic evidence. However, simply because a Crown case is dependent on such a witness and even though the witness was the subject of a direction under s 165 of the Evidence Act because of their involvement in the crimes of which the offender is convicted, does not necessarily mean that a verdict is unreasonable. In part, this reflects a substantial limitation on this Court’s role namely that “the assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury” (Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [38]; “Pell”). Thus, in Pell the following was observed about the function of a criminal appeal court (at [39]):

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.” (emphasis added)

The reference to “a case such as the present” in this passage is to a case where the principal evidence against an accused person is that given by a complainant. Given the significance of Witness 4’s evidence (and Witness 3’s evidence) to the establishment of the Crown case here it follows that this case is sufficiently analogous to Pell for this principle to be applicable.
In this case, the jury had the benefit of hearing and assessing the evidence given by Witness 4 and Witness 3. The benefit so derived should not be underestimated. Consistent with Pell, the analysis of this ground proceeds upon the assumption that the jury considered that at least Witness 4’s evidence was credible and reliable and that, to the extent he was supported by Witness 3’s evidence, it was also credible and reliable. Nevertheless, the applicants point to “inconsistencies, discrepancies, or other inadequac[ies]” with Witness 4 and Witness 3’s evidence and contend that, given those matters and, “in light of other evidence”, this Court should be satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of their guilt.
To the extent that there is “other evidence” to be considered then it has been addressed above (at [69] to [93]). At its highest for the Crown, the “other evidence” provides modest support for Witness 4’s evidence that he witnessed the killings and helped dispose of Do’s body. Otherwise, it provides no support for his evidence implicating the applicants in their murders.
This leaves Witness 4 and Witness 3’s evidence. The applicants make two principal submissions in respect of their evidence which are said to render the verdicts unreasonable. First, they contend that the evidence of an independent witness, Shane Roulstone, to the effect that he saw Do some time well after 10 April 2013, fatally undermined Witness 4 (and Witness 3’s evidence). [325] Second, they contend that the discrepancies within and between the evidence of Witness 4 and Witness 3 were such that the jury ought to have held a reasonable doubt about the applicants’ guilt. [326]
325. Ngo subs at [10(i)]; Ly subs at [22(i)]].
326. Ngo subs at [10(ii)]; Ly subs at [22(ii)].

Shane Roulstone’s Evidence

Consistent with her obligations, the Crown Prosecutor called evidence from Shane Roulstone whose evidence potentially exonerated the applicants. He said that in November 2012 he was introduced to Nguyen and Do. Do was a friend of his partner. [327] He said that Nguyen asked to borrow money to pay legal fees for a custody dispute. [328] He said they stayed with him, his partner and their baby for around nine days before Christmas in 2012 until he asked Nguyen to “move on”. [329] He said that they then lived with a friend of his for approximately a month. He said he did not see Nguyen much but continued to see Do. He last saw them together in late February or early March. [330] He said he saw Nguyen some weeks before learning of his murder on the news. [331] He then sent a text to Do asking her to call him urgently. [332] He also tried calling her but received no response. [333]
327. T 888-889.
328. T 889.
329. T 890.
330. T 891.
331. T 890.
332. T 892.
333. T 892.
Mr Roulstone gave evidence that he saw Do a couple of weeks after he learnt of Nguyen’s murder on the news. He said that at around 9:00pm one night she knocked on the door and his partner answered. He said that “she came in” and “I think had a bite to eat, had a bit of a conversation” before leaving. [334] Mr Roulstone said he suggested that “maybe she should contact the police”. [335] Mr Roulstone said she “popped in the next day or the day after”, said “hello” and “she was off”. Do said she was she going to Queensland. Mr Roulstone said he again told her that she should contact the police but “[s]he wasn’t keen on that idea”. [336] He did not see her again.
334. T 893.5-13.
335. T 893.9-10.
336. T 893.45-47.

At the conclusion of his evidence‑in‑chief, the Crown Prosecutor asked: [337]

“Q. I am going to suggest to you, Mr Roulstone, that you are mistaken when you say that you saw [Do] after you heard about the news or saw the news on TV reporting [Nguyen’s] death. What do you say about that?
A. It’s entirely possible. It’s a long time ago. I just still from the best of my memory at the time – I think it was about a year after the events that I made the statement, so-...”
337. T 894.

In cross‑examination, Mr Roulstone confirmed that he had approached the police. He was taken through his statement which was consistent with the above timeline, namely, that he saw Do some weeks after the news of Nguyen’s death was broadcast. [338]
338. T 899 to 900.
As this topic concerns the possibility that Do was not killed at or around the same time as Nguyen but much later, it is necessary to note some further evidence about her mobile phone usage. As noted, a table showing calls to and from her mobile phone were tendered. [339] The table indicated that on 16 April 2013 a number of text messages were sent to Do’s phone and apparently received. [340] These include a text from a phone registered to Witness 4. [341] An employee of the carrier, Optus, who was called to explain these schedules, was unable to say if the phone was switched off or switched on and receiving at this time. [342] On any view, this was the last use of her mobile phone. As for the sending of the message, Witness 4 was not able to recall why it was sent. [343]
339. Ex U and Ex BN.
340. Ex BN.
341. T 1016.
342. T 1039 to T 1041.
343. T 581.
On behalf of Ly, it was contended that Mr Roulstone’s evidence rendered the verdicts unreasonable. It was submitted that there was no basis to conclude that he was dishonest, that his statement was made at a time that was proximate to the relevant time and that there was no real basis for any “suggestion that he was mistaken as to the identity of the woman who had come to his home”. It was submitted that it is “entirely unlikely that the witness could have been mistaken about seeing Lien Do after the television news article about Sonny Nguyen's death”. [344] It was also contended that an acceptance of Mr Roulstone's evidence would inevitably have meant a rejection of Witness 4’s account of disposing of her body on the evening of 10 April 2013 giving rise to a reasonable doubt on both counts. [345] Ngo’s written submissions adopted Ly’s submissions on this topic.
344. Ly subs at [30].
345. Ly subs at [32].
The Crown contended that the independent evidence suggested that Do was killed at the same time as Nguyen. The last call made on her telephone was at 7.58pm on the evening of 10 April 2012. Save for the receipt of a SMS message on 16 April 2013, the evidence suggests her telephone ceased to be used from around that time. Her brother reported her missing on 15 April 2013 [346] and there were similarities in the way in which her body and Nguyen’s were bound and dumped. [347]
346. T 651.
347. Crown subs at [19].
I do not accept that Mr Roulstone’s evidence renders the verdicts unreasonable. I accept that there was no reason to conclude that his evidence was not given honestly but he accepted the possibility that he was mistaken. The jury enjoyed a considerable advantage in observing him give evidence including viewing his response to the suggestion that he was mistaken. The evidence of Do’s mobile phone usage suggests that she was killed around the same time as Nguyen and did not survive a number of weeks later to visit Mr Roulstone. One explanation for her lack of mobile usage is that she disposed of her phone. However, if she took that precaution, then that is hard to reconcile with her making an apparent social visit upon Mr Roulstone and his partner for no particular reason especially when she did not contact her own family.
The jury were entitled to reject Mr Roulstone’s evidence as unreliable and instead find that Do was murdered at the same time as Nguyen. Whether they were entitled to conclude that Ngo and Ly murdered them is a different matter.

The Credibility of Witness 3 and Witness 4

The principal contention made on behalf of both applicants was that the discrepancies within and between the evidence of Witness 4 and Witness 3, when combined with the lack of independent evidence pointing to the applicants’ guilt, were such that a reasonable jury ought to have entertained a reasonable doubt about their guilt.

Witness 3’s Credibility

In contending that Witness 3’s evidence was so weak that it could not properly support the verdict against him, Ly’s written submissions pointed to his status as an indemnified witness[348] and the falsity of his initial statement to police in May 2014 denying any knowledge of the killings. [349] In relation to the latter, Witness 3 admitted he had been “untruthful”. [350] They also referred Witness 3’s admission that in 1997, when he was investigated concerning a serious criminal offence, he denied his identity. [351]
348. Ly subs at [96].
349. Ly subs at [98]; T 780.
350. T 789.26.
351. Ly subs at [99]; T 880.2.
It was also submitted that his evidence that, on discovering the break in at the Beckenham Street home he telephoned Ngo immediately and she told him to contact Ly, was “contradicted by the call charge records which did not reveal such calls”. [352] This overstates the position in that the telephone service, if any, used by Ngo was not known and thus the records do not record any calls or messages to or from her.
352. Ly subs at [101].
Further, the Crown noted that Witness 3 said that he had two phones, one in his name that he used to contact his family, and one that Ngo had given him so that she could contact him. The telephone records that were tendered in evidence only identified one service as being connected to Witness 3. Witness 3’s evidence was that he was not sure which phone he used to inform Ngo of the drug theft. [353] As there were no records for any such other phone it meant that the phone records were not complete and thus his evidence was not “contradicted” by the absence of a record of a call between himself and Ngo. As for the call made to Ly, Witness 3 said he thought he used the phone Ngo gave him to call Ly, [354] although the Crown also noted that there was a record of a call or attempted call made by Witness 3 to Ly at 12.03pm on 10 April 2013 with numerous voice calls or attempted voice calls thereafter. [355]
353. T 736.
354. T 738.16.
355. Ex U at p 22; Crown subs at [77].
The point made by the Crown can be accepted as far as it goes but it still highlights the absence of any independent evidence supporting Witness 3’s evidence implicating Ngo and Ly. The absence of a telephone service for Ngo highlights that, in so far as the Crown case depended on identifying Ngo as the head of the drug manufacturing and supply business, it was solely reliant on Witness 3 and Witness 4’s evidence and there was otherwise no evidence of any connection between Ngo and Ly. The reliance on the call made by Witness 3 to Ly at 12.06pm on 10 April 2013 is undermined by Witness 3’s evidence that, when he sent a message to Nguyen at 1:16pm on 10 April 2013 he did not know there had been a break‑in at the Beckenham Street house. [356]
356. See [58].
The applicants also relied on the very significant differences between the evidence given by Witness 4 and the evidence given by Witness 3 especially so far as Witness 3’s involvement in drug dealing and the killings are concerned. Thus, Witness 4 described visiting the Lurnea House twice with Witness 3 and, on visiting the house on a third occasion, observing Witness 3 assisting in cooking ice[357] as well as Witness 3 playing a significant role in setting up the Beckenham Street house to cook ice. [358] As noted, Witness 3 denied that the Lurnea House was used to manufacture ice [359] and only admitted to having an insubstantial role in setting up the Beckenham Street house to manufacture ice. [360]
357. See [22].
358. at [23] to [26].
359. [68iii].
360. at [52] to [53].
On the day of the killings, Witness 4 described Witness 3 as having driven him to the Lurnea House[361] and having directed him to contact Nguyen to have him attend at the Beckenham Street house. [362] Witness 3 denied driving Witness 4 to the Lurnea House[363] and maintained that, to the extent he contacted Nguyen, he did not do so as part of some advance plan to seize Nguyen. [364] More importantly, as was noted by the Crown Prosecutor in her closing address at the trial, [365] there is an “unresolvable contradiction between [Witness 4] and [Witness 3] about which house the drug theft was alleged to have been from”. Witness 3’s evidence was that he was told the drugs had been stolen from the Beckenham Street house. [366] The effect of Witness 4’s evidence was that they had been stolen from the Lurnea House, hence his travelling there to inspect it. In his July 2014 statement, Witness 4 said that at about 6.46pm on 10 April 2013 he rang Nguyen who said he was shopping at Cabramatta and that he, Witness 4, “didn’t mention the drugs missing from the Lurnea House”. [367]
361. [29].
362. at [30].
363. [60].
364. [68(iv)].
365. T 1080.
366. see [56].
367. AB 540 at [90]; T 475.4.
The statement attributed by Witness 4 to Witness 3 (“Now you understand don’t you”), the supposed gesturing by Witness 3 to bedroom 2 where Do was detained,[368] Witness 4’s evidence that Witness 3 was present and left with Ngo after she ordered the killings (“Do it”), [369] as well as the instructions that Witness 4 said Witness 3 gave before he left about “tidying up the place”[370] and then later at the Hungry Jack’s restaurant about disposing of Do’s body and personal belongings, [371] implicate Witness 3 to a very substantial degree in the killings. Witness 3 either denied he engaged in, or stated he could not remember, any of these acts. [372] To the contrary, on his evidence, he was not aware of any plan to seize Nguyen, urged Ngo to let Nguyen return to cooking ice, left before any instruction was given to kill Nguyen, waited in the car outside [373] and again urged Ngo to let him continue cooking ice. [374]
368. at [33].
369. at [38].
370. at [39].
371. at [43] and [45].
372. [68(iv) to (viii)].
373. at [60] to [64].
374. at [64].
Ngo’s written submissions referred to other inconsistences such as Witness 4’s assertion and Witness 3’s denial that Witness 3 had recruited Witness 4 to make drug runs to Perth, [375] Witness 3’s assertion and Witness 4’s denial that Witness 4 was also responsible for monitoring Nguyen when cooking ice [376] and the inconsistent evidence each gave about how Witness 4 was advised of the theft of drugs on 10 April 2013. [377] It was submitted that their evidence was in significant respects contradictory and further diminished the weight that could properly be given to either witness. [378]
375. T 216, T 845.
376. T 728.
377. T 283; T 736.
378. Ly subs at [122].
The Crown accepted that there were “important differences” between Witness 4 and Witness 3’s evidence but also emphasised their “commonalties” as follows:[379]

“Importantly, both witnesses gave evidence that Ms Ngo was in charge of a drug manufacturing operation and that on 10 April 2013 Mr Nguyen was suspected of having stolen valuable product, providing a motive for the murders. Both said that Ms Ngo wanted them to contact Mr Nguyen and have him go to 26 Beckenham St. Both said that when Mr Nguyen arrived there, Ms Ngo was present, along with Mr Ly, Mr Pham and other males …... Both said that three males attacked Mr Nguyen in the garage, including Mr Ly, who had a firearm …., and that Mr Nguyen's hands were tied behind his back with cable ties ….. [Witness 3] said that while at the house, [Witness 4] told him Ms Do was in a bedroom.”
379. Crown subs at [80].

The Crown also noted that there was no evidence that Witness 4 and Witness 3 discussed the content of the evidence and the differences between them “do not suggest that they had jointly concocted a version of events”.
However even this analysis has its problems. As noted, in his July 2014 statement Witness 4 described four male attackers and not three. According to Witness 4, it was Witness 3 who gestured to him that Do was in a bedroom. While there was no evidence that Witness 4 and Witness 3 discussed the contents of their evidence, they had ample opportunity to do so between May 2014 when Witness 3 was approached by the police and denied any knowledge of the killings and in July 2014 when they both cooperated. It can be accepted that the very sharp differences in their accounts suggests that, if they did jointly agree to concoct a version implicating Ngo and Ly, they did not do so in a particularly sophisticated manner. However, an argument that the greater the discrepancies in their stories then the less likely it is that they jointly concocted them, suffers from the obvious flaw that the greater the discrepancies in their stories the more likely that at least one of them is giving unreliable evidence.
What is especially notable about the accounts given by each of Witness 3 and Witness 4 is that they each try to minimise their own knowledge of and involvement in the killings. In that respect Witness 3’s evidence seems especially self-serving.
In her closing address, the Crown Prosecutor placed some reliance on Witness 3’s evidence about discovering a break in at the Beckenham Street house as motive for the killings [380] and relied on his evidence and telephone contact with Ly to place Ly at the Beckenham Street house on the afternoon and evening of 10 April 2013. [381] However, this reliance was prefaced by a concession to the jury that “… the Crown would accept that you would have real difficulty in accepting anything of importance that Mr Witness 3 said unless it is supported by other evidence”. [382] My analysis of Witness 3’s evidence brings me to the same position. Further, so far as the “anything of importance” is taken to be a reference to anything directly implicating Ngo or Ly in the murders of Nguyen and Do then the only other evidence of that was given by Witness 4 which is considered next.
380. T 1081.8.
381. T 1093 to 1094.
382. T 1080.17-19.

Witness 4’s Credibility

The applicants’ submissions in respect of Witness 4’s credibility identified substantial tracts of his evidence‑in‑chief and then contrasted that with his evidence in cross‑examination which were mostly directed to adducing the contents of his July 2014 statement. [383] Overall, it was contended that Witness 4’s evidence reveals him deliberately minimising his role in the drug manufacture and supply business, his dealings with Nguyen and Do and his involvement in the events surrounding their murder.
383. Ms Ngo’s submissions adopted Mr Ly’s submissions in this respect.
Ly’s written submissions also pointed to Witness 4’s status as an indemnified witness as a matter reflecting poorly on his credit. [384] As with Witness 3, the Crown noted that the jury was aware of his status and were appropriately directed under s 165 of the Evidence Act 1995. [385] Ly’s submissions also contended that Witness 4’s disclosure just prior to the trial of more detail of his trips to Perth to transport drugs allegedly on behalf of Ngo [386] and the explanation he gave was indicative of his lack of honesty as a witness. For example, in his July 2014 statement he said that around December 2012 Ngo asked him to go Perth with her and “we flew out of Sydney around lunch time”. [387] In his evidence‑in‑chief, he said that Witness 3 asked him to fly to Perth in September 2012 and Ngo did not fly with him. [388] In his July 2014 statement he described four trips to Perth [389] but in his October 2018 statement and evidence he described five trips. [390]
384. Ly subs at [36].
385. Crown subs at [38]-[39].
386. MFI 13 – AB 564.
387. MFI 12 at [41] to [43] – AB 532 at [42].
388. T 400 to 401.
389. AB 534 at [42]-[53].
390. AB 566 at [16]; T 423 to 425.
Overall, I accept that Witness 4 sought to minimise his involvement in the supply of ice as exemplified by the following questions and answers in cross‑examination: [391]
391. T 428.

“Q.   [Witness 4], were you more involved in drugs manufacture, supply than you want to tell the Court about?
A. INTERPRETER: I’ve never got involved in that.
Q.   Well, you evidence is you were taking ice to Perth, that’s right, isn’t it?
A. INTERPRETER: The thing I brought to Perth, I believed that it was stimulants because in my theoretical knowledge I have never known any drug with the name “ice”.
Q.   And that is just rubbish, isn’t it?
A. INTERPRETER: There is no such chemical name like that, and I did not know what it was.
Q.   Let me try the name “methylamphetamine” then. Have you heard of that chemical?
A. INTERPRETER: I’ve learnt and I knew it in theory about that, but I have never known a drug called “ice”.
…
Q.   [Witness 4], what I am going to suggest to you is that, on your evidence, you were delivering drugs to Perth and you were bringing back cash; that’s your evidence, isn’t it?
A. INTERPRETER: That’s what I said.
Q.   And you are suggesting that you didn’t know if there was a connection between the cash you were bringing back and the drugs that you were taking over?
A. INTERPRETER: That’s right.”

This contention that Witness 4 was deliberately minimising his role and knowledge of the drug manufacturing and supply business is supported by Witness 4’s evidence that Witness 3 told him the Beckenham Street house was for use by him and Ngo as a “private place for themselves” [392] and “solely for parties”. [393] The cross‑examination of Witness 4 on that assertion by the Crown and the defence are described above (at [23]). His answers were destructive of his credit especially when regard is had to his evidence that he had already made five trips to Perth to transport drugs by the time the Beckenham Street house was leased.
392. T 247.
393. T 248.
The Crown accepted that there were aspects of Witness 4’s evidence in relation to his trips to Perth that “could be considered unacceptable” but contended that his evidence about his trips to Perth “does not clearly suggest that he was minimising his involvement in any offending in a way that impacts on his evidence about the murders”. [394] It made the same submission in respect of evidence of his knowledge about the drug manufacturing business. I do not accept that his evidence can be so easily compartmentalised. The Crown case was that Nguyen and Do were murdered because Ngo believed Nguyen had stolen drugs from her drug manufacturing business. This case has its premise that Ngo was in charge of that business. As noted, that premise rested solely on the evidence of Witness 4 and Witness 3. In his evidence, Witness 4 portrayed himself as effectively a simple observer to the drug manufacturing operation and to the murders. On the Crown case, the more involved he was in the drug manufacturing business then the more likely it was that he actively participated in Nguyen and Do’s murders.
394. Crown subs at [43].
Ly’s submissions then referred to the various inconsistences in Witness 4’s version of events of 10 April 2013 which have been described above, namely whether Witness 3 inspected the Lurnea House with him (see [22] and [52]), [395] the different descriptions Witness 4 gave of the attack, including whether there were four males or three males who came out of the bedroom and the weapons that Ly and the others were carrying (see [32]). [396] The submissions also emphasised the vague evidence given by Witness 4 about providing his sword on 9 April 2013 and collecting it the day after even though it was one of the weapons Witness 4 says was used in the attack (see [27] to [28]). [397] They pointed to the contrast between the vagueness of that evidence and the certitude of his July 2014 statement in which he states that, before he left the Beckenham Street house with Do’s body, Ly “gave me my red Samurai sword back”,[398] that he placed it in Pham’s car, took it out, cleaned it the following day with “water and Sake” and noticed that it was damaged. [399] When pressed on the contrast in cross‑examination, Witness 4 said that “they are details I couldn’t remember during … the trial”. [400] The Crown accepted that “[i]t may be difficult to accept [Witness 4’s] lack of memory about lending his samurai sword to Mr Ly” but contended that “notwithstanding the effects of time and trauma, nevertheless it is not a matter which suggests [Witness 4] was attempting to minimise his own involvement in the events.”[401] To the contrary, it is a matter which suggests exactly that.
395. Ly subs at [56] to [59].
396. Ly subs at [61] to [64].
397. Ly subs at [65].
398. AB 552 at [160].
399. AB 558 at [199] to [200]; T 591 to 592.
400. T 591.20.
401. Crown subs at [54].

The Crown submitted that “the details of the number of men who burst from the bedroom and which weapon each man had are of little consequence, when [Witness 4] was consistent in his evidence that there were four men involved, and that the three who attacked Mr Nguyen were armed with two firearms and a sword”. [402] I do not accept that contention. In his evidence‑in‑chief, Witness 4 did not nominate four men as coming out of the bedroom; that was only extracted from him in cross‑examination by reference to his July 2014 statement ([32]). The difference becomes even more pronounced when as noted above, in his evidence‑in‑chief he did not refer to any male running into the bedroom where he later saw Do.
402. Crown subs at [54].
Ly’s submissions also referred to discrepancies between Witness 4’s description of the strangulation of Nguyen in his evidence‑in‑chief and what he had told the police in 2014. In his evidence‑in‑chief, he described Ly using a “rope or string” [403] whereas in his July 2014 statement he said Ly used a “clear rubber hose”. [404] In his evidence‑in‑chief, Witness 4’s description of the strangulation involved the applicant Ly [405] “put[ting] [the rope] around Sonny’s [Nguyen’s] neck”. [406] However, in cross‑examination Witness 4 referred to an “Islander” helping to lift Nguyen [407] and in his walk through with police he told them that the “Islander” put the rope “around Sonny’s throat”. [408] The Crown submitted that whether a rope or a rubber hose was used is a minor detail, as is what the other men did to provide him with assistance. It contended that what was significant was the consistent description of the method of strangulation (at [58]).
403. T 317.27.
404. AB 549 at [145]; T 610.
405. T 320 to 321.
406. T 320.24.
407. T 611.46.
408. T 611; T 630.
Ly’s submissions also referred to the discrepancies in his description of the events surrounding Do’s apparent strangulation death noted above. [409] I have already addressed the evidence‑in‑chief given by Witness 4 about his observations of Do prior to seeing her for the last time alive in the bedroom and the Crown’ submissions in response (see [34] to [36]). The submissions also canvassed the balance of Witness 4’s narrative. The material discrepancies between that narrative and Witness 3’s and the overall neutrality of the independent evidence have already been addressed.
409. Ly subs at [75].
Overall, the Crown’s submissions on appeal accepted that, in a number of respects, Witness 4’s evidence was “unconvincing” or unpersuasive,[410] but nevertheless submitted that it was reasonably open to the jury to accept his evidence as credible and reliable. In broad terms this was either because the discrepancies concerned the peripheral topic of his involvement in drug dealing, concerned details that one supposedly might forget over time or, even if the discrepancies involved Witness 4 minimising his own involvement in drug dealing or the murders, they were stated in a context where he nevertheless was coming forward to admit his own involvement.
410. Eg Crown subs at [48].

Conclusion

I have already referred to the advantage enjoyed by the jury in hearing and observing Witness 4 (and Witness 3) give evidence. They were warned by the trial judge to be careful in accepting the evidence. The Murray direction emphasised the need for them to be satisfied beyond reasonable doubt of Witness 4’s honesty and accuracy. Nevertheless, and consistent with the Murray direction, I consider that, when confronted with a case that depended on an acceptance of Witness 4’s evidence as “honest” and “accurate”, any reasonable jury must have entertained a reasonable doubt about the applicants’ guilt. None of the independent evidence placed Nguyen or Do at the alleged place the murders occurred on 10 April 2013 or placed Ly at that location on that day. That evidence did not demonstrate that Ngo was in a position to direct anyone to harm anyone else. Witness 4’s and Witness 3’s evidence did not provide any real support for each other; in substance their evidence was irreconcilable. Allowing for the considerable benefit the jury enjoyed in having observed Witness 4 (and Witness 3) give evidence, many of the inconsistencies and discrepancies in his (and their) evidence were potentially explicable due to the passage of time. However, their cumulative effect is not so easily dismissed.
The difficulty in basing a verdict of guilty beyond reasonable doubt on Witness 4’s evidence in particular is best illustrated by the evidence he gave in chief about his recollection of handing and receiving his sword and his denial that he saw anything happen to Do prior to leaving bedroom 2. I do not accept that a verdict of guilty in this case can be properly based solely on a witness who apparently forgets supplying what was effectively one of the murder weapons and who neglects to mention witnessing the cold blooded suffocation of a young woman when asked about it. No jury acting reasonably could have been satisfied beyond reasonable doubt that he was an honest and accurate witness.
Accordingly, I am satisfied that the “jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt” (Pell supra).
I would grant leave to both applicants to raise their ground of appeal, allow the appeals and enter acquittals on both counts.

Proposed Orders

I propose the following orders:

In the appeal by Kevin Ly (2016/280833):

Grant leave to the Applicant to raise ground 1 of the Appeal;
Appeal allowed;
Set aside the convictions on the two counts of murder entered on 6 May 2019;
In lieu thereof, order that an acquittal be entered on both counts.

In the appeal by Dung Thi Ngoc Ngo (2016/284407):

Grant leave to the Applicant to raise ground 1 of the Appeal;
Appeal allowed;
Set aside the convictions on the two counts of murder entered on 6 May 2019;
In lieu thereof, order that an acquittal be entered on both counts.
1. CAVANAGH J: I agree with the orders proposed by Beech-Jones J. As identified by his Honour, the Crown case was to a large extent dependent upon the evidence of Witness 4. On my independent examination of the record, the inconsistencies and discrepancies in his evidence, considered in the light of other evidence, ought to have caused the jury, acting rationally, to have had a reasonable doubt as to the guilt of the applicants. In those circumstances, the verdicts must be set aside.

**********

Endnotes

Decision last updated: 19 November 2021

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