R v Lam

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN

v
CUONG QUOC LAM – 1^st Applicant	No 389 of 2005
and
HUNG TU VAN – 2^nd Applicant	No 008 of 2006
and
LINH VAN NGUYEN – 3^rd Applicant	No 009 of 2006
and
THANH NHA NGUYEN – 4^th Applicant	No 001 of 2006
and
LONG THANH TRAN – 5^th Applicant	No 392 of 2005
and
HONG BUI – 6^th Applicant	No 002 of 2006
and
HOANG QUANG TRAN – 7^thApplicant	No 390 of 2005

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JUDGES:	BUCHANAN, VINCENT and KELLAM JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12, 13, 14 and 15 May 2008
DATE OF JUDGMENT:	17 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 109

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Criminal law – Murder – Separate trials – Judge’s directions sufficient to prevent misuse of evidence – Causation – Final injury did not break the chain of causation between death and earlier injuries which were substantial and operating causes of death – Consciousness of guilt – Availability of a lesser included crime did not preclude reliance on false denials to infer guilt – Directions of trial judge adequate – Aiding and abetting – Mere presence – Evidence incapable of supporting findings that accused intentionally encouraged the principals by their presence – Unsafe and unsatisfactory verdicts – Not open to the jury to be satisfied beyond reasonable doubt.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr CJ Ryan SC with Mr DA Trapnell	Ms A Cannon Solicitor for Public Prosecutions
For the First Applicant	Mr PF Tehan QC with Ms F L Dalziel	Michael Gleeson & Assocs
For the Second Applicant	Mr D A Dann	Haines & Polites
For the Third Applicant	Mr C B Boyce	Valos Black & Assocs
For the Fourth Applicant	Mr F R Gucciardo	Theo Magazis & Assocs
For the Fifth Applicant	Mr M J Croucher with Mr D A Glynn	Victoria Legal Aid
For the Sixth Applicant	Mr G F Meredith	Valos Black & Assocs
For the Seventh Applicant	Mr LC Carter	Robert Stary & Assocs

BUCHANAN JA
VINCENT JA
KELLAM JA:

Introduction

In the early hours of Monday 8 July 2002, a fight broke out among a group of Vietnamese youths at the Salt nightclub in Daly Street, South Yarra, when Hung Van was assaulted by James Huynh, Viet Huynh, Nam Huynh and John Huynh and struck on the head by bottles. Other youths joined in the fight, which was stopped by bouncers.

Some of the protagonists had been involved in an earlier altercation. On Thursday, 4 July 2002, Nam and John Huynh participated in a fight with Hung Van and Cuong Lam and others at a nightclub in the Crown casino.

As a consequence of the fight in the Salt nightclub, the combatants were ejected. The succeeding events led to each of the applicants being charged with murder. Each of the applicants was charged with the murder of James Huynh (count 1). Cuong Lam and Hung Van were also charged with the murder of Viet and Nam Huynh (counts 2 and 3).

Viet and Nam Huynh were brothers. James Huynh was their cousin, and the elder brother of John Huynh. The applicants were linked by friendship.

Outside the nightclub Hung Van, Cuong Lam and one Tuan Tran armed themselves with samurai swords and put on white gloves. They encountered the Huynhs in Daly Street. James Huynh, armed with a bottle, approached Hung Van. Hung Van swung his sword wildly and struck James Huynh’s arm or wrist causing it to bleed profusely.

Cuong Lam, Hung Van and others chased the Huynhs into Chapel Street and then to the intersection of Chapel Street and Alexandra Avenue, where James Huynh fell to the ground near a bus stop, weakened by loss of blood. While he lay on the ground, James Huynh was subjected to a brutal attack, receiving injuries to his head, face, torso and legs from blows struck with samurai swords wielded, it was alleged, by Cuong Lam, Hung Van and David Nguyen.

It was the Crown case that after the attack upon James Huynh, Cuong Lam and Hung Van chased John, Viet and Nam Huynh across Alexandra Avenue to the bank of the Yarra River. John, Viet and Nam Huynh jumped into the river, Viet and Nam Huynh drowned. The place at which they jumped into the river was several hundred metres from the bus stop at which James Huynh was killed.

The Crown case against Cuong Lam in respect of the death of James Huynh was that he either inflicted multiple injuries upon the victim or acted in concert with or aided and abetted Hung Van and David Nguyen when they fatally wounded James Huynh.

As to the deaths of Viet and Nam Huynh, the Crown case was that Cuong Lam and Hung Van chased them to the river bank with the intention of inflicting really serious injury upon them and instilled in them a fear which caused them to jump into the river or alternatively that one of them, acting in concert with the other, chased the deceased to the river bank.

The Crown case against Hung Van was that he struck James Huynh with a sword in Daly Street, chased the Huynhs along Chapel Street, and then was driven by Linh Nguyen and David Nguyen to the bus stop in Alexandra Avenue, where, together with Cuong Lam and David Nguyen, he attacked James Huynh. The Crown alleged that he chased John, Nam and Viet Huynh into the Yarra River or acted in concert with Cuong Lam when the latter chased the deceased to the river bank. He then returned to James Huynh and kicked him while he was on the ground.

The Crown alleged that David Nguyen entered into an agreement or understanding with Cuong Lam and Hung Van to kill or inflict really serious injury upon James Huynh. According to the Crown, David Nguyen, armed with a sword, went to the bus stop in Alexandra Avenue in company with Hung Van and inflicted injuries upon James Huynh.

The Crown case against Linh Nguyen was that he murdered James Huynh by aiding and abetting Cuong Lam, Hung Van and David Nguyen or was an accessory after the fact. He drove Hung Van and David Nguyen from the Salt Nightclub to the bus stop in Alexandra Avenue. He observed the attack upon James Huynh and drove Hung Van and David Nguyen away from the scene.

The Crown case against Long Tran was that he drove his car from the Salt Nightclub to the bus stop in Alexandra Avenue and stood in close proximity to James Huynh when he was attacked. According to the Crown, Long Tran aided and abetted the principals by his presence, which encouraged them, and by making available his car as a means of escape.

The Crown case against Hong Bui was that he joined in the chase of the Huynhs from Daly Street. He drove in his car and stopped opposite the bus stop in Alexandra Avenue. He alighted from his car and stood near James Huynh while he was attacked. According to the Crown, Hong Bui aided and abetted the principals by his presence, thereby encouraging them, and by making his car available for their escape.

The Crown case against Hoang Tran was that he joined in the chase of the Huynhs from Daly Street to Alexandra Avenue and stood near James Huynh while he was attacked. The Crown case was that by his presence he intentionally encouraged the principals to murder James Huynh.

At the conclusion of a nine month trial, Cuong Lam and Hung Van were found guilty of murdering James Huynh, Viet Huynh and Nam Huynh. All the applicants were found guilty of murdering James Huynh.

After a plea, Cuong Lam was sentenced to be imprisoned for a term of 18 years on each of three counts of murder. With a measure of cumulation, a total effective sentence of 30 years’ imprisonment was imposed, with a non-parole period of 23 years. Hung Van received a like sentence. Linh Nguyen was sentenced to be imprisoned for a term of 16 years, with a minimum term of 12 years and six months. David Nguyen was sentenced to be imprisoned for a term of 18 years and six months, with a minimum term of 15 years. Long Tran and Hong Bui were each sentenced to be imprisoned for a term of 15 years, with a minimum term of 11 years. Hoang Tran was sentenced to be imprisoned for a term of 14 years and six months, with a minimum term of ten years.

All the accused have applied for leave to appeal against conviction.

Separate trials

The applicant, David Nguyen, relies upon two grounds of appeal. The first is that the trial judge was in error in not granting him a separate trial. The second is that the conduct of a joint trial has resulted in a miscarriage of justice by reason of the failure of the trial judge to grant a separate trial.

Prior to the empanelment of the jury, the applicant sought an order from the trial judge for a separate trial to be granted to him. The principal basis of the application was that inadmissible and prejudicial statements were contained in the records of interview of the co-accused Cuong Lam and Hung Van and that those statements would corroborate impermissibly each other’s statements and the evidence to be given by two prosecution witnesses as to statements allegedly made by David Nguyen at a flat in Footscray on the early morning of 8 July 2002.

It was argued that the inadmissible statements would operate prejudicially against David Nguyen and that there was a risk of the jury misusing the evidence to the applicant’s disadvantage. The relevant authorities were discussed during argument and are referred to in the learned trial judge’s ruling.[1]
[1]R v Lam (No 1) [2004] VSC 419.

His Honour refused the application, stating that the material then before him was not such that he was persuaded that appropriate judicial directions would be insufficient to ensure that the jury did not use such evidence impermissibly. It is clear from the ruling that his Honour took into account every matter which was relevant before exercising his discretion to refuse the application for a separate trial. We detect no error of law in the ruling given.

Subsequent to the ruling of his Honour referred to above, and by consent, any reference to conversations had at the flat in Footscray on the early morning of 8 July 2002 was deleted from the records of interview of the co-accused Cuong Lam and Hung Van to be led before the jury.

At a point near the closing of the Crown case, however, counsel for David Nguyen made a further application for a separate trial. On this application, it was submitted that in the course of their videotaped police interviews answers given by Hung Van, Cuong Lam and Linh Nguyen went to the fundamental issue of the role played in the killing of James Huynh. In particular, in the course of his video interview Hung Van stated that when he got into Linh Nguyen’s red Toyota motor car in Chapel Street, David Nguyen was seated in the rear of the car. He said that at the murder scene David Nguyen alighted and attacked James Huynh with a sword. He said that he tried to pull David Nguyen away. He said that after that he and David Nguyen got back into the red Toyota.

In the course of his interview Linh Nguyen said that he met up with David Nguyen at the Commercial Lounge and drove him to Daly Street near to the Salt nightclub where David Nguyen got out. He said that he later saw David Nguyen stabbing a person on the ground in Alexandra Avenue. He said that Hung Van got out of his car and tried to stop David Nguyen from stabbing the victim.

In his interview, Cuong Lam said that the ‘weapons’ came from the Commercial Lounge (which was the nightclub at which the prosecution alleged David Nguyen and Linh Nguyen had earlier attended) and that he, Cuong Lam, would be in danger if he mentioned the name of the person who killed the deceased. Furthermore, he stated in the course of his interview that David Nguyen had come from the Commercial Lounge.

As was conceded by counsel for David Nguyen, in principle all persons allegedly involved in the one crime should be dealt with in the same proceeding. Where, as in this case, concert or joint complicity is alleged, there are strong reasons of principle and policy in favour of a joint trial.[2] However it was submitted before us that, in the particular circumstances of this case, the conduct of a joint trial was such as to cause a risk of positive injustice to the accused David Nguyen.
[2]R v Demirok [1976] VR 244, 254.

First, it was argued that the issue of whether or not David Nguyen was present at the scene of the murder was an issue of significance in the trial and that the contents of the interviews in question lent weight and credibility to the evidence of observations made by other witnesses which otherwise lacked detail, in the description of the alleged assailant. Secondly it was argued that the fact that David Nguyen exercised his right not to be interviewed by police, and the desire by his counsel not to trigger a direct attack by co-accused, meant that there could be no ‘cut throat defence’ and in such circumstances it was thus less necessary or appropriate for there to have been a joint trial. Furthermore it was argued that notwithstanding the fact that no complaint is made about his Honour’s directions to the jury as to the requirement for separate consideration of each case against each accused, the prejudicial effect of a joint trial was such that it was unlikely to be corrected by his directions. It was submitted that the case against David Nguyen was ‘completely swamped’ by the impermissible evidence contained in the records of interview. In this regard, counsel for David Nguyen relied upon R v Gibb and McKenzie[3] and R v Brown.[4]
[3][1983] 2 VR 155.
[4][1990] VR 820.

Each of the arguments addressed to us were advanced before his Honour upon the further application made by the applicant for an order to grant him a separate trial. In the course of his ruling[5] his Honour set out in considerable detail the arguments advanced before him by both the applicant, and by the prosecution in response.
[5][2005] VSC 298.

The case against David Nguyen was circumstantial. There was evidence before the jury that David Nguyen was a good friend of Linh Nguyen, Cuong Lam and Hung Van. On the evening of 7 July 2002 he and Linh Nguyen were together at a restaurant in Footscray. There was unchallenged evidence that they left that restaurant together in the red Toyota Starlet motor car being driven by Linh Nguyen and that they travelled together in that car to the Commercial Lounge at approximately 1.00 or 1.30 am. There was evidence that they were together inside the Commercial Lounge. The red Toyota was seen in Daly Street soon after the fight inside the Salt nightclub. It was again seen double parked outside the front of the Legends pool hall after the fight outside the Salt nightclub. A witness, Thien Hoang identified David Nguyen by means of video identification as the person he had seen take a sword from the bushes in front of the Legends pool hall and then get into a small red car. Soon thereafter, the red Toyota was observed at the scene of the murder of James Huynh. Two of its occupants alighted, one armed with a weapon. Both occupants attacked James Huynh, one by kicking and one by use of a sword. These two occupants then got back into the red Toyota which departed the scene briefly but was seen to return soon afterwards. The same two persons were seen to get out of the car and again attack the deceased, one by kicking and the other with a sword. Soon thereafter Linh Nguyen, Hung Van and David Nguyen entered the flat in Footscray at the same time. David Nguyen was observed by one occupant of the flat to have fresh blood stains on his clothes. He was then heard to discuss the attack on the deceased. He was heard to say that he had ‘cut’ a person. He was heard to say that he believed the deceased to be ‘badly injured’ and that he was not going to survive.

On the basis of the admissible evidence against David Nguyen the jury were clearly entitled to conclude that he was one of the two persons who got out of the red car on two occasions and that when he did so he attacked the deceased. The trial judge in his ruling concluded that it would not be a difficult task for the jury to maintain an understanding of ‘the ambit of the admissible evidence against’ David Nguyen.

However, it was submitted by counsel for David Nguyen that his Honour’s conclusion in that regard was in error and that the Crown case was given ‘impermissible’ substance by reason of statements made by the co-accused in their records of interview. Seven specific matters were relied upon in this regard.

First, it was submitted that the interview of Cuong Lam suggested impermissibly that weapons had come with persons who had come from the Commercial Lounge. The evidence before the jury, however, was that the weapons used in the attack on James Huynh had come from a car parked inside the multi-storey car park near the Salt nightclub. There was evidence before the jury that one of the persons who armed himself at that car was Hung Van. Furthermore, there was evidence that Long Tran had parked his Ford sedan in Daly Street prior to the attack and that its boot was open. There was no admissible evidence of weapons being supplied by persons who had come from the Commercial Lounge and there was no suggestion from any source other than Cuong Lam to that effect. Indeed, the evidence before the jury was that David Nguyen had been identified as arming himself outside the Legends pool hall. The statement of Cuong Lam did not fill any gaps in the prosecution case nor enhance prosecution witnesses. It was contrary to the evidence led and was irrelevant.

Secondly, it was submitted that the interview of the co-accused linked David Nguyen to the red Toyota sedan driven by Linh Nguyen. It was argued before us that the movements of the red car were only ‘tenuously linked’ to David Nguyen. The admissible evidence, however, established that he had travelled to the Commercial Lounge in the red Toyota sedan and that he was identified in Chapel Street as the person who got into the red car armed with a bladed weapon. Furthermore, David Nguyen arrived back at the flat in Footscray at the same time as Linh Nguyen and Hung Van. He was then heard to make admissions. Whilst it is true that the statements of Hung Van and Linh Nguyen confirmed inadmissibly that he was in the car, the other evidence that he was an occupant of the car at relevant times was strong indeed.

Thirdly, it was argued that the identification of David Nguyen as the person who retrieved a weapon from bushes outside Legends pool hall before entering the red Toyota car was bolstered unfairly by the statement of Hung Van that he was in the car. His Honour dealt with this issue in his ruling and said:[6]

The identification evidence of Thien Hoang calls for a careful direction to the jury. Neither he or any other witness who implicates the accused is bolstered by the content of a co-accused’s interview. The interview of Hung Van provides no support for this testimony whilst [Linh] Nguyen’s interview is at odds with it. The reliability of that identification evidence must depend upon the jury assessment of that witness. The jury will be charged to consider this evidence in accordance with a full direction and warning about identification evidence.

As his Honour pointed out, the evidence of Thien Hoang was not bolstered by the content of the interview with the co-accused. In his interview Linh Nguyen had maintained that he travelled to the Commercial Lounge by himself, met David Nguyen there and at David Nguyen’s request had given him a lift to the Salt nightclub. He said that he had dropped him off near to the Salt nightclub. Nothing said by him bolstered the identification evidence. Furthermore, the interview with Hung Van recorded his statement that David Nguyen was seated in the back seat of the red Toyota when Van entered the car in Chapel Street. This version did not bolster the evidence of Thien Hoang. Rather, it contradicted it in that it suggested that David Nguyen did not get out of the car in Chapel Street.

[6][26].

Fourthly, it was contended that the evidence of Amanda Cheng as to the movements of the red car was critical to the Crown case and was bolstered impermissibly by the narrative of the co-accused. There is no substance in this contention. Amanda Cheng did not identify David Nguyen. Apart from asking her one question in cross-examination, counsel for David Nguyen did not challenge her evidence in any way.

Fifthly, reliance was placed upon the evidence of a witness John Lee who said that he observed two persons alight from the small red car at the scene of the death of James Huynh, one of whom he observed restraining the other, who was attacking the deceased. It is argued that the evidence of John Lee bolstered the inadmissible evidence of Hung Van that he had restrained David Nguyen from continuing to attack the deceased. The trial judge referred to this matter in his ruling. He said:[7]

The observations of the witness John Lee whose evidence could be viewed as confirmatory of Hung Van’s claim that he sought to restrain the attacker, must be balanced against numerous other eye witnesses who made no such observation. More particularly the evidence of Lee does not advance the prosecution case on the issue of the identity of the attacker.

[7][27].

It is to be observed that Mr Lee gave evidence of observing a concerted attack by two persons upon the deceased. He then observed one grab the other and lead that person away. This was quite different from the version given by Cuong Lam and by Linh Nguyen in their records of interview. Furthermore, the evidence of John Lee was different from that of other witnesses, including Ms Zuker, who said that one person did not pull the other person away.

Sixthly, reliance was placed upon the evidence of Son Nguyen, the brother of Linh Nguyen, who gave evidence that he had been told by his brother that he had been driven to Salt nightclub with David Nguyen and that he, Linh Nguyen, was with David Nguyen when he was ‘hitting’ a guy. This evidence was admissible against Linh Nguyen, but was not admissible against David Nguyen. It is submitted that this prejudicial evidence would not have been led at a separate trial. In this regard it is to be observed first that, effectively, under cross-examination by counsel for Linh Nguyen, Son Nguyen withdrew his evidence-in-chief regarding the conversation in question. Furthermore immediately after the evidence of Son Nguyen was given the trial judge gave the following warning to the jury:

Mr Foreman, ladies and gentlemen, before the next witness is called could I just say something to you about the nature of the evidence the last witness has given. You will appreciate that he has testified as to a number of important matters, some of which are only evidence in the case against [Linh] Nguyen. Other pieces of evidence are evidence of a more general nature which you might, depending on the view you take of the evidence, use in relation to [Linh] Nguyen or perhaps other accused. The evidence thus falls into two categories. That part of it which is only admissible in the trial of [Linh] Nguyen, and that is the evidence of what the witness has said his brother told him. In other words it is an out of court statement made by one of the accused to someone and thus any such evidence that you think throws any light on the conduct of that accused who made the out of court statement might be used in relation to that accused’s trial, but only in relation to that accused’s trial. The Crown relies upon what the witness said in this way. The Crown says that if you accept the evidence that [Linh] Nguyen made certain admissions to his brother about what he did on that particular day and what he saw, depending on what view you take of that evidence, you may use that evidence in relation to [Linh] Nguyen’s trial, but not in relation to any other. So it is important that you steadfastly bear in mind that that portion of the witnesses testimony is only admissible in [Linh] Nguyen’s trial. The witness also gave evidence about his general arrangement with his brother in relation to the car, and insofar as you think that the use of the red car may have a relevance not only to [Linh] Nguyen’s trial but other accused, you may take that into account. Similarly, depending on what view you take of the billiard cue, that’s a matter which might have more general relevance not only to [Linh] Nguyen’s case, but to other accused. So you will follow how the evidence falls into two quite distinct categories. Each time there is evidence given which is only admissible in relation to one accused, I hope I’ll remember to remind you. Certainly you will hear that ad nausium at the end of the trial, but I will endeavour to remind you of it as we go.

The trial judge again dealt with the evidence of Son Nguyen in the course of his charge and at that time gave a similar warning about the specific evidence given by Son Nguyen.

Finally, it was submitted that the fact that Cuong Lam claimed to be fearful of naming the person who had killed James Huynh and had suggested that the person who had come from the Commercial Lounge was on drugs and beyond control damaged the defence of David Nguyen and that a separate trial would have protected him from such allegations. However, as was submitted by the respondent, the Crown case at all material times was that Lam had lied to investigators in his record of interview and that on the evidence admissible against him he was a participant in each of the murders. The assertions that Lam made as to the people coming from the Commercial Lounge was said to be based upon what Tuong Tran had told him, Lam at all times maintaining he had not been at the scene of the murders and that any information he had concerning them was hearsay.

In the course of the trial and on seven occasions his Honour was at pains to warn the jury about evidence that was admissible only as against specific accused. Furthermore, his Honour took great care in the course of his charge to make these matters clear to the jury. As stated above, no exception is taken by counsel for David Nguyen to any direction given by his Honour in this regard. Rather, the thrust of the argument was that irrespective of the care taken by his Honour to provide appropriate warnings to the jury, there was an appreciable risk that the jury ignored such warnings. It was submitted that the cumulative effect of all matters prejudicial to the applicant which emerged during the trial required this Court to conclude that a fair trial was not had by the applicant and that a miscarriage of justice had occurred. In R v Ditroia and Tucci[8] the Full Court, comprising Starke, Crockett and Fullagar JJ, delivered a joint judgment in which they stated the legal principle governing an application for a joint trial in the following terms:[9]

We are thus left with the question whether the prejudice of which the applicant Tucci complains is of such moment that it ought imperiously to have commanded the exercise of the discretion favourably to him. The argument that it was is, of course, tantamount to the proposition that the Judge failed to give sufficient weight to the factors which in combination were responsible for the production of that prejudice and/or gave too much weight to the countervailing considerations. In considering this question it must be borne in mind that it is in only very rare cases that separate trials will be ordered (assuming in the first place that the co-accused are alleged to have been involved in a common enterprise). It must be remembered also that the question is one primarily for the trial Judge and that his decision will not be lightly interfered with.

Accordingly, the onus is upon the applicant to show exceptional circumstances which justify departure from the ordinary rule.

[8][1981] VR 247.

[9]257-8.

As stated by O’Bryan J in R v Torney[10]:

The safeguards against unfairness created by a joint trial are found, firstly, in the adequacy of the directions given by the trial judge to the jury and, secondly, in the jury comprehending and applying those directions.

[10](1983) 8 A Crim R 437, 454.

In the present case the directions given by the trial judge were clear, comprehensive and in accordance with principle. In the course of his charge his Honour referred specifically to the records of interview of Hung Van and Linh Nguyen and the references to David Nguyen. He repeated the warning that he had given already on numerous occasions in strong terms. He said:

Such statements are not evidence against other co-accused. You will readily understand it would be quite unfair if it were otherwise. The co-accused against whom such allegations are made by an accused when being interviewed are not present when the allegations are made, they are not there to refute the allegations against them, they do not have the opportunity to cross-examine the maker of the statement and to challenge what the accused has said. The statements were made to the investigator, in effect, behind their back. It would be quite unjust to use anything that one accused has said about a co-accused against them when they were not there.

We consider in all the circumstances that the directions given by his Honour were more than adequate and no suggestion to the contrary was made by counsel for the applicant. Taking into account the adequacy of those directions, we do not consider that the factors relied upon by the applicant are such to establish that a miscarriage of justice applied by reason of the applicant being tried jointly with his co-accused. There is no reason to consider that the jury did not fully comprehend and properly apply his Honour’s directions, which were based on sound principle.

Causation

The applicants Cuong Lam and Linh Nguyen argued that the learned trial judge was in error in directions given to the jury relating to the issue of causation.

By ground 6 of the statement of grounds Cuong Lam contended:

The learned trial judge erred by failing to direct the jury properly on the issue of supervening cause in respect to count 1, in particular by failing to permit the jury to consider that the stab wound inflicted in the deceased’s heart might have constituted a supervening cause of death.

By ground 1 Linh Nguyen contended:

The learned judge erred in his directions on causation; and in particular he erred (i) in ruling that it was not open to view the stab wounds to the deceased’s chest as a supervening act which broke the chain of causation and (ii) in withdrawing, or in failing to give directions on, that defence.

Similar arguments were raised by Long Tran, Hong Bui and Hoang Tran, but by reason of our conclusion that their applications for leave to appeal should be upheld on other grounds, it is no longer necessary to consider their cases on these grounds.

It was open to the jury to conclude that there were three separate attacks on James Huynh, which caused him serious injury. The first of those attacks took place in Daly Street. It was open to the jury to conclude that Hung Van, together with others, was armed with a sword and was involved in an attack on James Huynh in Daly Street which caused serious injury to his arm. An examination of the crime scene revealed that a blood trail was observed to commence in Daly Street at the intersection with Almeida Crescent near the Salt nightclub. The blood trail continued along Daly Street and along the western side of Chapel Street before crossing Chapel Street to its eastern side. The blood trail continued along the entire length of Chapel Street. There was evidence that the blood splash patterns were regular and continual and were deposited by a heavily blood stained person casting or throwing off the blood as the person moved along Chapel Street. The trail crossed Chapel Street and continued to the point where James Huynh’s body was found.

There was evidence that there were two separate attacks near the bus stop at the corner of Chapel Street and Alexandra Avenue. The first attack commenced soon after 3.12 am. A number of witnesses described the deceased being attacked by at least two people with bladed weapons and a third person who was kicking him. A number of witnesses then saw the assailants depart in a number of cars. One witness, Mr Bernard Lew, telephoned police at the time of observing the incident. His phone call was recorded at 3.15.16 am. At that time Mr Lew observed the deceased alone on the ground. The only movement observed by him was a slight movement of the deceased’s arms. Subsequently and at 3.17.38 am another witness, Anthony Douglas, rang police. As he did so he saw a small red vehicle coming to a stop outside his apartment. Other witnesses observed two people, whom the jury were entitled to conclude were Hung Van and David Nguyen, getting out of the car. The evidence of a number of witnesses was that one of them struck the deceased with a sword and the other kicked him very hard on several occasions. A witness, Catherine Walters, having observed this, telephoned 000 at 3.20.09 am. Having made the telephone call she observed the two men getting back into the red car, which then departed.

The forensic evidence as to the nature of the injuries was given by forensic pathologist Dr Ranson, who performed the autopsy upon the deceased, and by a forensic pathologist Dr Robertson, who was called to give evidence on behalf of Hong Bui. Dr Ranson described numerous cutting injuries to the body of the deceased. There were numerous recent injuries to the head and neck area of which ten such injuries were clearly cutting injuries. Dr Ranson gave evidence that significant force was required to cause a number of the head injuries, one of which included an incision through the left ear of the deceased severing cartilage and causing irregularity of the bone surface. Dr Ranson described a number of injuries to the chest area of the deceased including an incised stab wound which extended deeply into the tissue of the chest wall. He gave evidence of numerous injuries to the right upper arm of the deceased. In particular he observed a large injury to the deceased’s right wrist penetrating the skin and into subcutaneous tissue. He said an injury of that nature would cause the severed blood vessel to bleed profusely as long as there was continuing blood pressure. He described further injury to the deceased including a gaping wound to the right shoulder which he said would have bled profusely. The left upper arm of the deceased was found to have a wound 11 centimetres in length which went deeply into underlying tissue. Dr Ranson stated that, if there was reasonable blood pressure, such a wound would bleed extensively. He also described a cutting injury on the mid part of the left upper arm of the deceased which passed through subcutaneous fatty tissue and muscle. That injury was consistent with having been caused by a sharp instrument and would have resulted in blood loss if there had been sufficient blood pressure left. A large incised injury to the left elbow of the deceased penetrated five centimetres into tissue. Dr Ranson said that small arteries and veins would almost certainly have been cut through by such an injury with resultant severe bleeding. A further serious injury was found almost separating the left hand of the deceased from the forearm. Major arteries run to the hand and, as most arteries and veins in that area were severed, that injury would, in the opinion of Dr Ranson, have bled profusely. A deep wound through tissue muscle and fat into the fibula was found in the left lower leg of the deceased. Dr Ranson said that that injury involved a high degree of force and incised substantial vascular elements, veins and arteries, which would have caused substantial blood loss given sufficient blood pressure. Likewise, a further incision found over the back of the left thigh of the deceased would have been the cause of significant bleeding. In total, Dr Ranson found 12 injuries to the deceased’s head and neck area, eight injuries to the chest area, 15 injuries to the right upper limb, three separate injuries to the right shoulder, 14 injuries to the left upper arm, four areas of injury to the right lower limb and four areas of injury to the left lower limb. In addition he found a deep injury to the right buttock.

Upon post mortem Dr Ranson found that the pericardium had been penetrated by a cutting type object. That penetration went through the left ventricle and the aorta into the right lung. Dr Ranson provided the following opinion as to the cause of death:

I gave the cause of death as multiple injuries including stab wounds to the chest … In this particular case there are multiple injuries to the body and very many of these injuries are associated with damage to vascular structures which would cause substantial loss of blood from the body. The injury to the heart and lungs would also cause blood loss from the body. A person dies when their circulation finally stops or fails or they receive such damage to their brain because of loss of blood or other factors that their brain no longer works. In this case it appeared to me that there were a multiple series of injuries which were all resulting in substantial loss of blood to this individual such that they died.

In relation to the stab wound to the heart, he said that he did not think that a person would be ‘able to engage in a great deal of ongoing physical activity’ following such an injury. He said that he thought that with an injury like that a person would die very quickly. He said:

I think with an injury like that to the heart affecting the circulation system very fundamentally at its pumping point that a person would die in a matter of many seconds or a minute or so. The time would actually depend upon the amount of blood that is remaining in the body. That is, the less blood there already is there, then the shorter time it would take to have more blood loss from the heart area. The more there is in the body, the slightly longer time it would take. But we are really only talking about a minute or so at most.

He observed that the stab wound to the chest was associated with a collection of blood inside the chest cavity which indicated that there was cardiac function at the time of the injury.

Dr Robertson, who was called on behalf of Hong Bui, agreed with Dr Ranson that the stab wound to the heart would mean that ‘the deceased was not going to be capable of very much more purposeful activity for much more than a minute after sustaining that injury’.

The evidence was that a MICA ambulance attended upon the deceased at approximately 3.24 am and that he was found to be dead at that time. Dr Ranson gave evidence that the multiplicity of cutting injuries would have caused death by reason of significant blood loss. In the course of cross-examination it was put to Dr Ranson that, in the absence of the wound to the heart, death may not have ensued given ‘reasonably prompt treatment’. Dr Ranson replied that the answer to that question depended upon how much blood had been lost, how fast it had been lost and how fast the treatment was provided. Dr Robertson was asked a similar question. She said that in the absence of the injury to the chest there would have been extensive bleeding, major arteries having been severed but that had emergency medical and surgical procedures been instituted there would have been a chance that the deceased may have survived the injuries.

On this basis, and on the basis of the evidence that the injury sustained to the heart of the deceased was most likely to have been incurred in the course of the second attack, it was submitted before the trial judge by counsel for Hong Bui that there was no case to answer on the part of his client. It was submitted that even if it had been open to the jury to be satisfied that an injury which contributed to death was inflicted by a charged principal in the first degree whilst the aiders and abettors, Hong Bui, Long Tran and Hoang Tran were present, a later significant supervening act occurred when they were not present contributing to the death of the deceased and which, it was submitted, broke the chain of causation of the earlier acts.

In his ruling[11] and after a careful review of the relevant authorities his Honour said:

It cannot be disputed in the present circumstances that serious injuries were sustained by the deceased as a consequence of one or more attacks and that those injuries were inflicted at substantially the same time. The final injury, if it be part of a separate attack which took place when the secondary participants Hong Bui, Long Tran and Hoang Tran were not present, cannot be viewed as an intervening or superseding act which broke the chain of causation. Even if the acts of one or more of the principals in the first degree after Hong Bui, Long Tran and Hoang Tran departed the scene may also have been a substantial and even a more substantial cause of death, it would be enough if the acts of the principal in the first degree whilst they were present, were shown to be a substantial cause of death.

[11][2005] VSC 295.

Consistent with his ruling the trial judge did not give directions to the jury on the concept of a supervening cause breaking the chain of causation. Furthermore, in the course of his charge his Honour referred to the address of counsel for Hong Bui. He said:

[Counsel] referred you to the time at which the paramedics first arrived to attend to the deceased James Huynh. He also reminded you of the opinion of Dr Robertson that the deceased might have survived had it not been for the stab wound to the chest. I instruct you that it is no part of your task to consider whether the deceased might have been saved by medical intervention were it not for the stab injuries to the chest. It is not a question which is relevant to the issues you must resolve. On the question of causation, you are only required to consider whether a particular injury or injuries caused or substantially contributed to the deceased’s death, not whether the deceased might have been saved if some injuries had not been inflicted.

It was submitted on behalf of Cuong Lam and Linh Nguyen that his Honour was in error in ruling that it was not open to view the stab wound to the deceased’s chest as a supervening act which broke the chain of causation. It was further submitted that his Honour was in error in not leaving it to the jury to determine whether any injuries inflicted in the first attack were a substantial cause of death and if so, whether the stab wound to the chest might have broken the causal chain.

In his ruling, His Honour gave careful consideration to the relevant authorities. He referred to and quoted from the relevant passages from R v Smith[12], R v Pagett[13], Ryan v R[14] and Royall v R.[15] Finally his Honour referred to the decision of the Court of Appeal in R v Franklin[16]. He quoted the following passage from the judgment of Brooking JA:

One of the striking things about this trial is that no alternative Crown case was left to the jury that acts directly performed by the applicant himself substantially contributed to the death. It is clear that for the purposes of the law of homicide there may be more than one cause of death and that criminal liability may attach to an actor even though the act was not the sole or even the “main” or “most substantial” cause of death. On the other hand, it is also clear that criminal liability will not attach unless the act was a “significant” or “substantial” cause of death. In the last 50 years a good deal of authority has accumulated on the subject, culminating, for Australian purposes, in the decision of the High Court in Royall v R. The issue of the cause of death is of course one of fact for the jury, and while many if not most cases of homicide call for no direction about the principles of law concerning causation there are some which do. The decisions in which those principles are discussed are those in which either the judge’s charge on causation or the jury’s entitlement to find a causal connection is called in question. Putting to one side pure questions of fact (for example, which of two bullets struck the body, or whether death was due to trauma or some unrelated cause), there remains a wide variety of situations in which juries will need assistance from the judge when they come to consider what caused or contributed to the death. For example, where a wound was inflicted by the accused it may be argued that the “chain of causation” has been broken by unskilful medical treatment, or by the victim’s refusal on religious grounds of a blood transfusion. On the other hand, the question may be whether death has been caused by aggressive behaviour of the accused where the victim has jumped from a window or moving car. The possible factual situations are infinite and even the categories to which they may be sought to be assigned are numerous.
One such category is that of the infliction of injuries by two or more assailants, acting independently and at substantially the same time. In such a case, where there is no complicating factor which may be put forward as “breaking the chain of causation”, it is enough for the jury to enquire whether the attack of the accused made a substantial contribution to the death. The present was such a case: the victim was subjected to a prolonged attack (extending on and off over some hours) by the applicant and a prolonged attack (also extending over some hours) by other men. It was not and could not have been suggested that there was some “intervening” or “supervening” or “superseding” act or event which “broke the chain of causation”. Problems of the kind considered, for example, in Royall, did not arise. It was enough for the jury to consider whether the applicant’s acts were shown to have substantially contributed to the death, even though the acts of the other assailants may also have been a substantial, and even a more substantial, cause. The issue of causation was to be resolved without any occasion to consider whether some intervening agency absolved the applicant. It was enough to consider what causal connection there was in fact, and so to ask whether, in the light of the medical and the relevant lay evidence, the injuries inflicted by the applicant had substantially contributed to the boy’s death. This approach is supported by Royall and Osland and by authorities dealing specifically with death following the independent and substantially contemporaneous infliction of injuries by two or more persons. The approach in the United States appears to be the same. (Citations omitted).
Had the present jury been asked to consider the simple question whether, in the light of the medical and the relevant lay evidence, the injuries inflicted by the applicant had substantially contributed to the boy’s death, it would have undoubtedly been open to them to answer it in the affirmative.[17]

[12](1959) 2 QB 35,

[13](1983) 76 Cr App R 279.

[14](1967) 121 QB 35.

[15](1991) 172 CLR 378.

[16](2001) 3 VR 9.

[17]28-9.

His Honour concluded that the principles as enunciated by Brooking JA were applicable to the circumstances of the case before him. Upon that basis his Honour determined that:

The final injury could not be viewed as an intervening or superseding act which broke the chain of causation.

It was argued before us that, whilst the statements of principle in Franklin were correct, the judge erred in his application of those principles to the facts of this case. The first distinguishing factor was said to be that the stab wound to the chest occurred in circumstances whereby it could not be proved that Cuong Lam was present. It was argued that the injury did not occur substantially at the same time as the injuries which might have been caused in the first attack and it was thus separate in time and place.[18] Secondly it was argued that in the case of Franklin the issue of causation was conceded by counsel for Franklin when he asked the jury to convict his client of manslaughter. In our view there is nothing in the latter argument. Whilst it is true that in Franklin, Ormiston JA thought that the concession was determinative of the issue of causation on the appeal, it is apparent that the causation issue was fully argued and Brooking JA, with whom Phillips CJ agreed, considered the issues extensively in his judgment. As was submitted by the respondent, the authority of the principles of general application laid down in Franklin is unaffected by any concession made by defence counsel in that case. We return to the principal factor which is said to distinguish the case of Franklin from the present circumstances. Whilst it is true that a very short period of time separated the two distinct attacks upon the deceased at the bus stop in Alexandra Parade, the evidence was overwhelmingly to the effect that a savage attack took place upon the deceased whilst he was on the ground on the occasion of the first attack. The passenger in Amanda Cheng’s car, Sovichea Tan saw two people ‘slashing’ at the deceased. Amanda Cheng saw a person get out of the red car and attack the deceased with an ‘overhead motion’ with a machete. Others were seen by her to attack him with swords and machetes. Susan Zuker saw the deceased struck to the upper body approximately ten times on the occasion of the first attack. Thereafter, and in the intervening period before the continuation of the attack by those who returned in the red car, no movement on the part of the deceased was observed apart from some small movement of his arms. The evidence of both Dr Ranson and Dr Robertson was that all of the major incision injuries were injuries which substantially contributed to the death of the deceased. As Lord Parker CJ said in R v Smith:[19]

It seems to the court that if at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.

[18]This argument although advanced by Linh Nguyen is of no relevance to his circumstance as we have concluded that Linh Nguyen was properly to be seen as an aider and abettor of the two principals at the time of the second attack.

[19]42-3.

The evidence is clear that at the time of the death of the deceased all of the major incision injuries suffered by him were both operating and substantial causes of his death. The speculative possibility that in the absence of the injury to his heart intensive treatment and heroic surgery may have avoided death is not to the point. There is no feature of significance which distinguishes this case from the principles set out by Brooking JA in Franklin.

The respondent referred us properly to R v Japeljarri[20] and to R v Evans and Gardiner (No 2)[21], which may be argued as casting doubt upon the principles expressed by Brooking JA. The respondent submitted that insofar as statements made in those cases are irreconcilable with the decision in Franklin, the more authoritative approach was that of Brooking JA. It was submitted that the approach of the learned trial judge in applying the principles stated by Brooking JA is supported by the decision of the High Court in Royall. We agree. In our view it is clear that the acts of the principal offender or offenders in the first attack remained an operating and substantial cause of the death of the deceased and, in circumstances where the injuries were inflicted by two or more assailants, acting in concert and at substantially the same time, it was sufficient for the jury to consider whether or not the attack of the accused principals made a substantial contribution to death of the deceased. It was not appropriate for his Honour to leave to the jury the determination of whether there was a supervening act or event which broke the chain of causation.
[20](2002) 134 A Crim R 261.
[21][1976] VR 523.

Consciousness of guilt

At trial the Crown contended that certain of the applicants had lied to the police in their records of interview and did so because the applicants were conscious of their guilt. The trial judge left the alleged lies to the jury on that basis. It is now contended that the trial judge erred in admitting evidence of the alleged lies as evidence that was capable of displaying consciousness of guilt and erred in his directions as to the manner in which the jury could use that evidence.

A ground of the application by Cuong Lam is that the trial judge erred in his directions to the jury by failing to identify the particular lies said by the Crown to disclose consciousness of guilt.

In his address to the jury the prosecutor contended that the statements by Cuong Lam that he went no further than 20 metres north in Chapel Street from the intersection of Daly and Chapel Streets and that he did not go to the intersection of Alexandra Avenue and Chapel Street were lies disclosing consciousness of guilt.

In dealing with the evidence admissible only against Cuong Lam, the trial judge said:

[T]he prosecution relied upon certain lies which it says Cuong Lam told the police, lies which it says were told because of the realization by him that if he told the truth, he would reveal his involvement in the crime with which he is charged.

It was submitted that this direction was deficient in that his Honour did not remind the jury of the statements said by the Crown to be lies displaying consciousness of guilt.

The trial judge’s directions to the jury as to the cases against individual offenders were in two parts: the evidence relating to each accused and the arguments of counsel in respect of each accused. While his remarks as to the evidence of lies said to have been told by Cuong Lam in his treatment of the evidence against the applicant were in general terms, his Honour’s description of the lies relied upon by the prosecution in dealing with the arguments of counsel was quite specific. The trial judge told the jury that one lie relied upon by the prosecution was ‘his assertion that he only went 20 metres north of Chapel Street from Daly Street’ and another was his answer ‘No’, to the question:

Did you attend the intersection of Alexandra Avenue and Chapel Streets on the morning of Monday, 8^th of July?

When the directions are read as a whole, there was adequate identification of lies said to disclose consciousness of guilt.

A ground of the application by Hung Van is that the trial judge erred in admitting evidence of alleged lies by the applicant as evidence that was capable of demonstrating consciousness of guilt with respect to the counts alleging that the applicant murdered Viet and Nam Huynh.

The trial judge adopted as the criterion to determine the admissibility of evidence of lies as disclosing a consciousness of guilt that the inference arising from the evidence was compelling and prominent. On this basis his Honour permitted the Crown to rely upon four alleged lies. Counsel for the applicant at trial made submissions as to the admissibility of the lies, but drew no distinction with respect to their relevance as between the different counts with which the applicant was charged. On appeal, counsel for the applicant submitted that a possible explanation for the lies was the applicant’s consciousness of guilt arising from the death of James Huynh, the subject matter of count 1, and thus the lies could not be used to bolster the Crown’s case that the applicant murdered Viet and Nam Huynh by chasing them to the river bank or acting in concert with Cuong Lam who chased them to the river bank.

The existence of a possible explanation for a lie told by an accused person, that he was conscious that he had committed another offence as opposed to the offence in issue, does not necessarily preclude the lie being left to the jury as evidence being capable of supporting an inference that the applicant was conscious that he had committed the offence in question.[22] The lie, a species of circumstantial evidence, is to be considered in the context of all the evidence. Whether it amounts to an implied admission of guilt will depend upon the nature of the lie, the circumstances in which it was made, the nature of the offence in question and the other evidence in the case.[23] Post-offence conduct is rarely intractably neutral.[24]
[22]R v Ciantar (2006) 16 VR 26.
[23]Compare Edwards v R (1993) 178 CLR 193, 201 (Brennan J).
[24]R v Ciantar, above, 39.

In the present case the applicant accepts that the alleged lies were capable of demonstrating his consciousness of guilt with respect to count 1. In our opinion, the alleged lies were equally capable of demonstrating the applicant’s consciousness of guilt as to counts 2 and 3. The evidence was capable of supporting the inference that Hung Van acted in concert with Cuong Lam throughout the assault upon James Huynh and the pursuit of Viet and Nam Huynh. The events alleged to constitute all the counts were connected and amounted to a continuing episode of criminal conduct.[25]
[25]Compare R v Akkus [2007] VSCA 287, [76]-[80] (Vincent JA).

A related ground of the application by Hung Van is that the trial judge erred in failing to direct the jury that the applicant might have lied because he was conscious of his guilt of a lesser crime than murder and because of the fact that he was conscious of his guilt in respect of count 1, as opposed to counts 2 and 3. The lesser offences left to the jury were manslaughter and accessory after the fact.

Counsel for the applicant submitted that the trial judge was required to direct the jury to consider the alleged lies in the context of each of the offences left for their consideration, to direct the jury that before they could view the alleged lies as demonstrating a consciousness of guilt in respect of the crime of murder, they would have to discount the possibility that the applicant lied because he was conscious of his guilt of a lesser offence and to direct the jury that they were to give separate consideration to the question of whether the lies demonstrated consciousness of guilt in respect of count 1 or in respect of counts 2 and 3 or all three counts.

The trial judge made it clear at several points in his charge and in relation to each of the accused that the jury were to consider the lies in relation to each crime. For example, in the course of dealing with the lies alleged to have been told by Hung Van, he said:

[Y]ou must determine whether or not you are satisfied that his statement constitutes an unequivocal acceptance by him of his guilt of the charge which you are considering.

The prosecutor treated the alleged lies as part of a connected series of events and that was how defence counsel viewed the way in which the Crown put its case. In summarising counsels’ contentions, the trial judge covered this aspect. His Honour had earlier said, in his directions in respect of Cuong Lam:

If you are satisfied that an accused has lied about a matter of importance in relation to the commission of the crime, and that the only reasonable explanation for the accused telling such a deliberate lie was his awareness that he committed the crime with which he is charged, you may use the lie as part of the circumstantial case upon which the Crown relies. If you are satisfied that the accused told a lie of this nature, it will form part of the body of evidence upon which the prosecution relies.

In our opinion as a result of the manner in which the trial judge fashioned his charge and the way in which the parties conducted their cases, the jury would have understood that if they were satisfied that the applicant had lied about a matter of importance in relation to the particular crime they were then considering, the lie could form part of the body of circumstantial evidence from which a conclusion as to the guilt of the applicant could be drawn. It follows that, if the jury obeyed the trial judge’s directions, they would have realised that the alleged lies might have been told as a result of consciousness of guilt of a crime other than that which they were considering, and accordingly the lies were not part of the circumstantial case from which guilt could be inferred.

A like complaint was made on behalf of Hoang Tran. His Honour’s directions with respect to the lies alleged to have been told by Hoang Tran, in the light of the way in which the applicant’s case was conducted, similarly disclose no error.

In the case against Linh Nguyen, the lies relied upon by the Crown were the point at which he was said to have stopped his car at the intersection of Alexandra Avenue and Chapel Street and his denial that he drove twice to that intersection. Counsel for the applicant contended that the lies should not have been left to the jury because they were equally capable of being explained as consciousness of guilt of murder, manslaughter or being an accessory after the fact. For the reasons we have set out above, we reject that submission.

It was also contended that the trial judge’s directions as to the lies were deficient in a number of respects. It was said that the jury were not directed that the ‘offence charged’ was a convenient way of saying that the accused had a consciousness of the alleged wrongful conduct which constituted the offence charged rather than consciousness of a specific crime known to the law. It was also said that as manslaughter and accessory after the fact were lesser alternatives than murder, the jury should have been directed that consciousness of guilt of manslaughter or being an accessory after the fact did not provide a reasonable explanation for the lies. Finally, it was said that the directions failed to identify in relation to murder, manslaughter and accessory after the fact the issues in respect of each offence for which the Crown relied upon evidence of the lies, and the facts, acts and circumstances which were said to show that the lies bespoke consciousness of guilt for the purposes of those issues.

In R v Ciantar[26] the Court said that it would ‘often be helpful’ for a judge to explain the term ‘the offence charged’. The Court did not say that an explanation was mandatory. In the present case, the Crown case against Linh Nguyen was that he aided and abetted the murder of James Huynh or his manslaughter by an unlawful or dangerous act or was an accessory after the fact. In the course of his charge, the trial judge made it very clear that, if they were satisfied that the applicant had lied, the jury could treat the lies as forming part of the body of circumstantial evidence which might found an inference of guilt of a particular crime. His Honour carefully spelled out the elements of each crime, which the jury were told to consider in turn. When the charge is considered as a whole, we think it was not deficient in the manner contended for by the applicant.
[26]Above, [75].

A ground of the application by Hoang Tran was that a false denial that he had been to Alexandra Avenue after being at the Salt nightclub was incapable of disclosing consciousness of guilt of murder. Counsel for the applicant submitted that the evidence was intractably neutral.[27] He pointed out that the lie was withdrawn after a short time.
[27]R v Ciantar, above, [72].

The submission to a large extent relied upon R v Heyes[28]. That decision is no longer good law.[29] It is now established that the availability of a lesser included crime does not preclude reliance upon false denials to infer guilt. In the present case, the jury were strictly warned to consider each crime in turn. The Crown case was that there was a large body of circumstantial evidence beyond a lie that exhibited consciousness of guilt. In our view the evidence was not intractably neutral and, insofar as it was weakened by the withdrawal of the lie[30], that circumstance did not deprive the evidence of probative effect and was adequately dealt with by counsel in the course of his address to the jury.
[28](2006) 12 VR 401.
[29]R v Ciantar, above.
[30]R v Lee (2005) 12 VR 249, 255 [36] (Coldrey J); R v Ellis (1998) 100 A Crim R 49, 50 (Doyle CJ) and 58-9 (Olsson J).

Aiders and Abettors

The Crown argued at the trial that each of the applicants, Hong Bui, Long Tran, Hoang Tran and Linh Van Nguyen, aided and abetted one or more of Cuong Quong Lam, Hung Tu Van and David Nguyen in the murder of the deceased, James Huynh. The verdicts in each of their cases must have been reached on that basis.

Whilst the principal contention of the Crown in relation to the other three applicants was that they acted in concert, it was put alternatively that one or more of them aided and abetted the others.

In this court, a number of arguments have been advanced on behalf of all, save David Nguyen, with respect to the instructions given to the jury concerning their respective possible liability as aiders and abettors. Some were common to all applicants who raised this issue and were formulated in similar terms:

The learned judge erred in his directions on aiding and abetting; and, in particular, he erred:
(a)in directing (i) that the alleged acts of aiding and abetting need not in fact help or encourage the principal or convey to him the aider and abettor’s assent to and concurrence with his actions and/or (ii) that the principal need not be aware of such help, encouragement, assent or concurrence; and
(b)in failing to direct inter alia that the aider and abettor (i) must be linked in purpose with the principal and (ii), by his words or conduct, must have done something to bring about, or render more likely, the commission of the offence by the principal.

---
The learned judge erred in his directions on aiding and abetting; and, in particular, he erred in failing to direct that the prosecution must prove that the aider and abettor intentionally helped, encouraged or conveyed assent and concurrence to the principal or principals knowing or believing (i) that the actions of the principal would cause death and (ii) that the principal intended that death be caused.
---
In failing to define properly for the jury the concepts of intentionally helping, intentionally encouraging and intentionally conveying assent and/or concurrence.

[The judge erred] in failing to direct the jury that:
they must be satisfied that an accessory who aids and abets principal(s) in the first degree in the commission of the offence of murder
I. must know or believe that the principal(s) actions will cause death,
II. and that the principal(s) intends to cause death

In addressing these contentions, which are directed to the principles of law that the jury were to apply to the evidence before them, there is no need to do more than set out the relevant passage from the trial judge’s ruling[31], with which we agree:
[31]R v Cuong Quoc Lam and Ors [2005] VSC 294.

In The Queen v Lowery & King (No. 2) … Smith J set out the principles relating to aiding and abetting which have been consistently applied in this State for over 30 years. His Honour said:
“Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another – another whom the law calls the principal in the first degree – if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and he is equally guilty of the crime with the principal in the first degree. Aiding and abetting in this connection means doing one or other of these three things while aware that the crime is being committed: first, intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal of the first degree. …”

In Giorgianni v The Queen … Justice Mason examined the terms “aid, abet, counsel or procure” and then said:
“But the terms are descriptive of a single concept. In this regard, I would adopt the observation of Cussen ACJ in R v Russell …, as being applicable to secondary participation in misdemeanour. Having listed various words, including ‘aiding’ and ‘abetting’ which have been used to refer to the conduct of a principal in the second degree in felony His Honour observed: ‘all the words above mentioned are, I think, instances of one general idea, that the person charged as a principal in the second degree is in some way linked in purpose with the person actually committing the crime, and is by his words or conduct doing something to bring about, or rendering more likely, such commission’. As R v Russell itself illustrates, there need not exist any agreement or consensus between the principal in the second degree or secondary participant and the principal offender… .”

The requisite mental element of a principal in the second degree was stated by Wilson, Deane and Dawson JJ as requiring “intentional participation in a crime by lending assistance or encouragement”. … The necessary intent for aiding and abetting or counselling and procuring requires “knowledge of the essential facts of the principal offence”. … As Giorgianni illustrates, a secondary participant will not have sufficient knowledge and hence the necessary intent if the participant does not know that the principal offender was about to do or was doing something which amounted to the alleged offence.
Knowledge of the essential facts includes knowledge of the principal in the first degree’s intention. In R v Stokes & Difford… Hunt J stated:
“To establish that an accused is an accessory to the commission of a crime by another person (whether or not he is a co-accused), by aiding and abetting him, the Crown must establish: (1) the commission of that crime by the principal offender, and (2) that the accused was present at the time when the crime was committed, and (3) that .. the accused knew all the essential facts or circumstances which must be established by the Crown in order to show that the crime was committed by the principal offender (whether or not the accused knew that they amounted to a crime) and (4) that, with that knowledge, he intentionally assisted or encouraged the principal offender to commit that crime. The accessory’s intention to assist or encourage the principal offender must be based upon that knowledge. …”

After some analysis of Giorgianni Hunt J, speaking of both accessories before the fact and those who may be present said:
“It is usually more appropriate to speak of the accessory’s knowledge (or awareness) of the principal offender’s intention to do an act with a particular state of mind at the time when the accessory aids, abets, counsels or procures the principal offender to commit the crime in question than it is to speak of the accessory’s knowledge of the act done by the principal offender with that state of mind. The knowledge will usually crystallise in the accessory’s mind before he involves himself as an accessory to that crime.
In the case of an accessory who is present and who intentionally gives the principal offender assistance and encouragement in relation to his commission of that crime, it may well be that either or both of them has or have already been involved in an assault upon the victim. The accused charged with being an accessory – having become aware of the principal offender’s intentions no doubt by reason of his involvement in the assault up to that time – only at that stage, and with that knowledge, intentionally assists and encourages the principal offender – for example, by himself continuing to assault the victim. That was the basis of the decision in Mohan. But even in such a case, it is strictly with the accessory’s awareness of the principal offender’s intentions for the future that he then encourages and assists him, rather than with his awareness (except in the loosest sense) of the actions done by the principal offender in the past. …”

This reasoning illustrates both the relevance of preceding events and the need to ensure that the distinction is maintained between a belief or intent of the secondary participant arising from prior knowledge and the intent required at the time of the acts of assistance or encouragement.
Both principle and authority suggests that the prior acts of a secondary participant and the surrounding circumstances in which the secondary participant was involved are relevant to the intent of the secondary participant and the nature and the quality of the alleged acts of aiding and abetting.
In R v Beck … Macrossan CJ, after observing that one may look at all of the aider’s conduct to see whether he intends and is giving support at a particular moment, said:
“Intentional encouragement may come from expressions, gestures or actions intended to signify approval. Voluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding. It seems that all will depend upon a scrutiny of the behaviour of the alleged aider and the principal offender and on the existence which might appear of a bond or connection between the two actors and their actions … a calculated presence or a presence from which opportunity is taken can project positive encouragement and support to a principal offender. The distinction between a neutral and a guilty presence of a person at the scene of a crime would be for the jury to assess. Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no tell tale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out….”[32]
[32]R v Cuong Quoc Lam and Ors [2005] VSC 294, [18]-[26].

…
Three questions concerning aiding and abetting
The secondary participants Long Tran, Hong Bui and Hoang Tran each admit to being present either on foot or in their motor car or both, in the vicinity of the crime scene. They each claim that they performed no act which constituted assistance or encouragement of a named principal in the first degree and that their presence, perhaps unknown by the principal offenders, cannot constitute aiding and abetting. Three interrelated questions have thus arisen as to the directions of law which the jury should be given relating to the acts of aiding and abetting.
(1)Must the prosecution establish that the principal in the first degree was aware of the acts said to constitute aiding and abetting.
(2)Must the prosecution establish that the act or acts said to constitute aiding and abetting in fact assisted or encouraged the principal in the first degree.
(3)May the secondary participant’s presence in close proximity to the deceased at the time of the commission of the offence by a principal in the first degree be sufficient to constitute aiding and abetting.[33]

…
Conclusions
In answer to the question whether the prosecution must establish that the principal in the first degree was aware of the acts said to constitute aiding and abetting, a distinction must be drawn between acts of assistance and acts of encouragement. The primary offender need not be aware of acts of assistance performed by the principal in the second degree with the requisite knowledge and intention. Acts of encouragement must be viewed differently. For the words or conduct of an accused person to have the capacity to encourage the perpetrator of the crime, the words must be spoken and the conduct take place in the presence of the primary offender. The prosecution must establish that the secondary participant conveyed or communicated to the principal offender his encouragement by words or by his presence and behaviour that the offence should be committed. The prosecution need not establish that the principal in the first degree was aware of the words or acts of encouragement so long as they were communicated or conveyed with the necessary intention by the secondary participant and in circumstances where the principal offender could be aware of them.
The prosecution is not required to establish that the acts said to constitute aiding and abetting in fact assisted or encouraged the principal in the first degree. The suggestion in some of the authorities to which I have referred that it must be established that the principal in the first degree was in fact assisted or encouraged do not in my respectful opinion accord with principle or those authorities which I regard as persuasive and plainly correct. Such a direction to a jury would be too favourable. It would impose an impossible burden upon the prosecution, who would rarely be in a position to place evidence before a jury as to the effect of the secondary participant’s conduct on the principal offender’s state of mind.
Where the secondary participant is one of a group of persons behaving in a similar fashion, and the present circumstances may be such a case, it is unnecessary for the prosecution to establish an awareness of the encouragement proffered by each member of the group. Proof is not required that the principal offender was in fact encouraged by each individual’s conduct. In circumstances such as the present, the prosecution must establish that the conduct of the secondary participants said to be acts of encouragement, whether performed on foot or in a motor car, were acts of which the principal offender was or could have been aware.
In relation to the third question, the jury may use the non-accidental presence of participants in the second degree as some but inconclusive evidence of aiding and abetting. It will be open to the jury to consider the conduct of each of the secondary participants, who the prosecution allege came within very close proximity to the body of the deceased James Huynh, in the context of the surrounding circumstances. They may take into account evidence of prior events involving the secondary participants to determine whether a secondary participant’s conduct constituted an act or acts of encouragement or assistance accompanied by the necessary intent.[34]

[33]Ibid [36].

[34]Ibid [76]-[79].

Whilst much time was occupied in the hearing before us in the analysis of the relevant principles and authorities in this area, it quickly became clear that lying at the heart of the submissions of counsel was the contention that no adequate evidentiary foundation to support the conviction in his client’s case. In short, in each of the cases of Hong Bui, Long Tran, Hoang Tran and Linh Nguyen, it was argued that the evidence was either incapable of supporting the conclusion that he was an aider or abettor or, alternatively, that the drawing of that inference had to be regarded as attended with such doubt that the verdict in the case of the particular applicant could not stand in accordance with the principles enunciated by the High Court in M v R.[35] We are of the view that in the cases of Hong Bui, Long Tran, and Hoang Tran there is force in these contentions.
[35](1994) 181 CLR 487.

The attribution of criminal responsibility to one person for the voluntarily undertaken and separate activities of another is an extremely serious matter. In consequence, a number of principles have been developed directed to identifying and differentiating carefully between the various bases upon which an individual ,who has not personally performed any of the acts constituting the offence, can be regarded as sufficiently complicit in the commission of a crime to be treated as a party to it.

Q:       For how long?
A:       I’m not sure. I was drunk.
Q:       Yeah. So, how much had you had to drink inside that night?
A:       Don’t recall.
Q:       Okay. Did you do anything when you were there?
A:       Nuh.
Q:       Did you kick or punch or - - -?
A:       Nuh.
Q:       Touch this person that was - - -?
A:       Nuh.
Q:       On the ground? Did you end up with any blood on you as a result?
A:       The officer said I had blood on my shoes.
Q:       Blood on your shoes?
A:       Yeah.
Q:       What do you mean “the officer said”?
A:       When I got taken in on that - - -
Q:       Yeah.
A:       Monday morning.
Q:       And have your shoes been taken off - - -?
A:       Yeah.
Q:       You? Okay. And what happened after this occurred?
A:Then after this, can’t remember nothing. I just remember I ended up at that hotel.[36]

[36]Hoang Tran’s Record of Interview – Q251-276.

The inference that he aided and abetted the commission of an attack upon the deceased of the kind that he observed once he arrived at the scene and from which he very soon walked away before it was over could not in our view be drawn at any level of proof in his case.

Linh Nguyen

The evidence, it was said, indicated that -

(a) he was friendly with David Nguyen,
(b) he knew Cuong Lam and Hung Van,
(c)on 8 July 2002, he drove his brother Son Nguyen’s red Toyota Starlet Sedan,

(d) he was at the Commercial lounge with David Nguyen,
(e)whilst at the Commercial lounge, someone had received a phone call to say that Hung Van had been bashed so the applicant drove to the Salt Nightclub,

(f) he admitted leaving the Commercial lounge with David Nguyen,
(g) he admitted picking up Hung Van outside Legends Pool Hall,
(h)David Nguyen was seen armed getting into a small red car outside the Legends Pool Hall,
(i)he admitted driving Van to the intersection of Alexandra Avenue and Chapel Street,
(j)Hung Van and David Nguyen got out of the car and attacked James Huynh,
(k)that there were two attacks on James Huynh by the occupants of the “small red car”,

(l) he waited whilst the attacks on James Huynh took place,
(m)he drove Hung Van and David Nguyen away from the scene of the attack, and
(n)he attended with Hung Van, David Nguyen and Tuan Tran at the flat in West Footscray.

The position of this applicant can be seen to be significantly different from those just considered, in that it was clearly open to the jury to find that, on hearing of what had taken place at the Salt nightclub involving his friends, he attended with others to effect some form of retribution. He took Van and David Nguyen to the scene of the attack, with at least one of them carrying a sword or machete. There was evidence that he remained there while an attack took place and then drove Van and David Nguyen away. Further there was evidence that he drove his car to the bus stop on two occasions and it was certainly open to the jury to conclude that at least on the second of them he was well aware of what was taking place and was there to assist the perpetrators. On one, at least, of those occasions a billiard cue belonging to the applicant’s brother which was kept in the car was taken by one of the perpetrators to the place where the attack occurred. The jury were entitled to find that he actively participated in the events by his provision of direct assistance to those involved and with a clear understanding of the nature of the activity in which they were engaged.

Linh Nguyen, Cuong Lam, and Hung Van

Although the primary manner in which the Crown put its case against those designated as principals was that they acted in concert, it was also argued alternatively one or more of them aided and abetted each other.

The argument was advanced on behalf of Linh Nguyen, Cuong Lam and Hung Van that it was possible that the jury regarded any one or two of the alleged principals as aiders and abettors and therefore no verdict of guilty could be properly returned against an individual who was found to aid and abet either of them. In other words, no liability could attach to an aider and abettor of an aider and abettor to some other principal. The contention is based upon the derivative nature of the liability of an aider and abettor who, it is said, by definition is contributing to the commission of an offence by a principal and here, it was said, there may well have been no relevant principal.

In our view this argument is misconceived. As we have earlier pointed out, liability attaches to an aider and abettor by reason of the contribution made to the commission of the offence. There is no reason in principle why that contribution cannot be made by the provision of assistance or encouragement to other aiders and abettors. Take, for example, the by no means improbable scenario of a fight at a football match in which an aider and abettor assists the assailant and friends of the aider and abettor, in turn, join in to back him up. Their involvement although solely directed to the provision of assistance to the aider and abettor may make a powerful contribution to the commission of the offence. It would still be necessary for the prosecution to establish that the person, who would be reasonably designated a third level participant, possessed the requisite knowledge and state of mind with respect to the principal offence and offender but it could hardly seem to matter as a matter of principle or justice that the contribution was made indirectly in this way.

The trial judge correctly instructed the jury with respect to the principles to be employed by the jury in considering whether the prosecutor had established beyond reasonable doubt that the particular applicant had aided and abetted the principal whoever they decided that was, in the commission of the crime of murder. It is, in our view, unrealistic to suggest that they would not have been well aware that the contribution of the aider and abettor had to be directed to the commission of that crime.

Unsafe and unsatisfactory verdicts

At trial, the prosecutor contended that Cuong Lam and Hung Van acted in concert with each other in bringing about the deaths of Viet and Nam Huynh. The prosecutor submitted to the trial judge that the guilt of the applicants on counts 2 and 3 could be established by proving that they chased the victims to the bus stop at the corner of Alexandra Avenue and Chapel Street and there attacked James Huynh, and it was not necessary for the jury to find that either applicant chased the victims from the bus stop to the river bank at the point where they jumped into the river, which was several hundred metres from the bus stop.

The trial judge rejected this submission. He ruled that if neither Cuong Lam nor Hung Van chased the deceased from the bus stop to the river bank, it could not be said that they caused the deceased to jump into the river. There was evidence that the victims were chased to the river bank by a number of persons. If neither Cuong Lam nor Hung Van was amongst the pursuers, it would be the conduct of the third parties, not said by the prosecution to be acting in concert with Cuong Lam or Hung Van, which caused the deaths. His Honour directed the jury in accordance with this ruling. Thus counts 2 and 3 could only be established if the jury found that both Cuong Lam and Hung Van chased the victims to the river bank or that at least one did, acting in concert with the other.

The only evidence that Hung Van chased the Huynhs to the river bank was that given by John Huynh, who jumped into the river with Viet and Nam Huynh.

In his evidence-in-chief John Huynh said that he had been involved in the fight with, inter alia, Hung Van in the Crown casino nightclub. He was also involved in the fight in the Salt nightclub during which Hung Van was struck on the head by a bottle. He said that he next saw the applicant in Daly Street armed with a samurai sword. He saw James Huynh, his brother, being struck by a sword. John Huynh said he was chased down Chapel Street by persons who included the applicant. James Huynh fell down near the bus stop. A red car came from Chapel Street and five people jumped from it carrying samurai swords. He saw the applicant strike James Huynh with a sword. John Huynh ran to the river and leaped in. From the river he saw the applicant standing at the river bank waving a sword.

Cross-examination of John Huynh revealed a number of circumstances which threw grave doubt upon his evidence-in-chief.

Although John Huynh said that he saw James Huynh struck with a sword in Daly Street, he gave evidence at the committal that he had not seen anyone strike his brother and, in the first of two statements to the police, he did not say that he saw his brother struck with a sword. In his first statement, he did not mention that he saw the applicant in Daly Street holding a sword. At the committal he had given evidence to the effect that the only thing he could remember the applicant doing in Daly Street was standing there. In his first statement, he did not say that he saw the applicant chasing him down Chapel Street. At the committal he said that he was not able to recognise any of the persons who chased him down Chapel Street and said that the next time he saw the applicant after seeing him standing outside the Salt nightclub was when he saw him at the intersection of Chapel Street and Alexandra Avenue. He admitted that the first time he had ever said that he had recognised the applicant chasing him down Chapel Street was in evidence-in-chief at the trial. As to his evidence that he saw the applicant at the intersection of Chapel Street and Alexandra Avenue, he had not mentioned this in his statements to the police and first mentioned it in his evidence at the committal. As to his evidence that he saw his brother fall to the ground near the bus stop, he had previously given evidence at the committal he had last seen his brother running.

As to his evidence that he saw the applicant strike his brother with a sword near the bus stop, he had made no mention of this in his first statement or at either of the two committal hearings. The first time he had ever said that he saw his brother struck by anybody near the bus stop was at the second committal. At the first committal he had given evidence that he had not seen his brother stuck with a sword. The first time he had ever said that he recognised the applicant as striking his brother with a sword near the bus stop was in evidence-in-chief. As to his evidence that he had seen the applicant at the river bank holding a sword, he had made no mention of this in his first statement or at either committal hearing. The first time he had ever mentioned it was some two and a half years later. He said that he had not mentioned it previously because he had not recognised the applicant as one of the persons on the river bank until it came to him one day when he was at work in about October or November 2004. He said he simply forgot to mention it when he made a further statement on 25 January 2006.

In the course of cross-examination, John Huynh conceded that his observations upon which his evidence-in-chief was based were made under difficult circumstances. He identified the applicant as a person who chased him down Chapel Street when he looked over his shoulder once while running flat out in front of his cousins. As to his observation of the applicant striking his brother with a sword at the bus stop, he was running flat out and he looked over his shoulder for a couple of seconds whilst crossing the road. As to his identification of the applicant on the river bank waving a sword, he said that he had been swimming as fast as he could. When he was 10 to 15 metres from the river bank, he stopped and looked back at the people on the river bank for one or two seconds. It was really dark. He was in a state of panic, fear and anxiety. He did not have a clear view of the people on the river bank. He was treading water, moving his arms and legs to stay afloat. He could not make out facial features of the persons on the river bank, he could not describe their clothing and he recognised the applicant only by his short spiky hair.

Certain answers of the witness threw the uncertainty of his evidence into high relief. When asked whether he thought it could have been the applicant he saw on the river bank, he said, ‘I don’t know’. When he was asked whether he ‘put the bottle guy in the frame’ because that is what he would have done if he had been bottled, he said ‘I don’t know’. When it was put to him that his evidence of recognising the applicant was not right, again he said ‘I don’t know’.

A large number of witnesses gave evidence as to the movements of Van Hung at the intersection of Alexandra Avenue and Chapel Street. There was evidence that he arrived at the intersection in a red Starlet motor car, attacked James Huynh with a sword, returned to the intersection and got back into the red Starlet, which was driven away. There was also evidence that he got out of the car, that he and David Nguyen attacked James Huynh, that he got back into the red Starlet and the car was driven away again. No witness gave evidence of anyone returning from the river bank area to get into a red car. No witness identified the applicant crossing Alexandra Avenue to the river bank.

Witnesses called by the prosecution had the applicant in three places at once: at the intersection of Chapel Street and Alexandra Avenue, on the river bank and in Daly Street looking for his shoe. Yet the Crown case depended upon the applicant being near the bus stop at the time of the first attack there, as it was immediately after that attack that John Huynh spoke of being chased to the river bank.

There was abundant evidence that the applicant was seen in Daly Street after the Huynh group had run off down Chapel Street. One witness maintained that he was in Daly Street five minutes after the Huynh group had run off down Chapel Street.

In order to establish that the applicant was present when James Huynh was first attacked near the bus stop, the Crown relied upon the evidence of Amanda Cheng and Sobichea Tan, the applicant’s admission that he was present at the bus stop during the second attack upon James Huynh, evidence from witnesses that the red Starlet had attended twice near the bus stop and evidence that the same persons had got out of the red Starlet at the time of the first and second attacks.

Cheng could give no description of the clothing of the person she described getting into the red Starlet in Chapel Street. She did not describe the person getting out of the red Starlet near the bus stop having blood on his face. She had never identified the applicant. Sobichea Tan had never identified the applicant. A number of witnesses had described a red car being near the bus stop at the time of the attacks upon James Huynh and described persons getting out of the car, but were not able to say that the same persons got out of the car on each of the two occasions. No witness identified the applicant as being in the red Starlet at the time of the first attack upon James Huynh near the bus stop. The applicant said he got into the red Starlet in Chapel Street but said that he was only present near the bus stop at the time of the second attack upon James Huynh.

The only evidence that Cuong Lam chased Viet and Nam Huynh to the river bank was that given by Mark Ung. He was as thin a reed as John Huynh.

In his evidence-in-chief, Mark Ung said that he was present at the Salt nightclub on 8 July 2002 and saw a scuffle. He accompanied Hoang Tran when the latter was evicted from the nightclub. Mark Ung collected his car from a car park next to the nightclub. He drove along Daly Street to Chapel Street, turned into Chapel Street towards Alexandra Avenue, turned right into Alexandra Avenue and stopped his car on the river side of the street. He said he could not remember seeing anyone on the roadway or on the footpath in Alexandra Avenue. He did not remember seeing anyone run across Alexandra Avenue.

Ung said that he performed a U-turn and parked on the other side of the street. A person with a sword, wearing white gloves, opened the passenger door of his car and climbed into the back seat of the car. Ung said that he could not remember what that person wore. Two other persons entered the car. Ung described the first of those persons, but said he did not look at the second. Ung said he saw Cuong Lam on 8 July 2002 carrying a samurai sword but could not remember where he was or what he was doing. Ung said he drove off when instructed to do so by one of his passengers. He drove to Daly Street, where his passengers alighted from the car.

At the conclusion of this evidence the prosecutor sought and was granted a declaration that the witness was hostile.

Ung was then cross-examined by the prosecutor. He said that he made a statement to the police and was interviewed by the police. He agreed that in the interview he said:

… parked at the river, all I remember was I said to you before just maybe seeing Cuong at the river.

Later he gave evidence that he told the police he saw Cuong Lam ‘jogging across the road … I think he was holding a samurai.’ Ung said that he told the police he did not know whether Cuong Lam got into his car because ‘I was looking straight ahead and thus cautious of like any actions were going to take place’. He said he had told the police the truth.

When he was cross-examined by counsel for Cuong Lam, the witness said he had not made any allegations against Cuong Lam when he gave his first statement to the police. He said that before the recorded interview began, the police suggested Cuong Lam was down by the river armed with a sword. Ung conceded that he had lied to the police in his first statement and when he was interviewed he was concerned that he would be charged with perjury. He agreed with counsel that when he mentioned Cuong Lam he was ‘telling the police what they wanted to hear to protect myself.’ Ung agreed that what he had told the police in his record of interview ‘is not 100 per cent true.’ It was revealed to the jury that in the course of a Basha enquiry the witness gave evidence that when asked whether at any stage did he see Cuong Lam down by the river, he said ‘I don’t know’.

In our opinion, upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt with respect to counts 2 and 3 that Cuong Lam and Hung Van were guilty.[37] We entertain a real doubt as to the guilt of the applicants as a result of the inconsistencies and difficulties in the evidence of the only witnesses who could supply evidence of the events necessary to be established in order to find the applicants guilty. We consider the jury’s advantage in seeing and hearing the witnesses is not capable of resolving the doubt we experience. The evidence of both John Huynh and Mark Ung lacks probative force for reasons which are not explained by the manner in which their evidence was given. We are of the opinion that the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the applicants in respect of counts 2 and 3.
[37]M v R (1994) 181 CLR 487.

Accordingly, notwithstanding that there was in law sufficient evidence to support the verdicts on counts 2 and 3, we will quash the convictions and order that verdicts of acquittal be entered.

As we are of the opinion that the verdicts on counts 2 and 3 should be set aside and that Cuong Lam and Hung Van should be acquitted on those counts, it is necessary to consider whether the sentences on count 1 should be affirmed or whether other sentences should be passed.[38]
[38]Section 569(1) of the Crimes Act 1958.

It is necessary to say something about the personal circumstances of the applicants.

Cuong Lam is aged 29 years. His father left home when he was a year old, and he arrived in Australia with his mother at the age of two years after fleeing Vietnam in a boat. Upon completing year 12, the applicant commenced studying for a civil engineering degree at Victoria University of Technology in 1998, later transferred to a building and building surveying course. While completing the course, the applicant was employed as a shop fitter and shop assistant and other part-time work. He lived at home with his mother and two younger siblings and was the principal earner in the family. Impressive character evidence was given in the course of the plea as to the applicant’s life as a student and in prison. The sentencing judge accepted that the applicant had ‘excellent prospects of rehabilitation’.

Hung Van is now aged 32 years. In 1989 the applicant arrived in Australia from Vietnam with his parents to join his siblings who had emigrated earlier. The applicant left school in year 10 at the age of 17 years. He commenced employment as a factory worker at Holden in 1995 and was still employed there when this offence was committed. The sentencing judge accepted that the applicant came from a large family who had and would continue to support him. He was described as an extremely well mannered prisoner who had demonstrated an excellent work ethic. He was, it seems, a model prisoner.

The sentencing judge carefully evaluated the circumstances of the offences, the characters and antecedents of the applicants and the effects of the murder upon the victim’s family. We think that his Honour imposed appropriate sentences in respect of the murder of James Huynh. We affirm the sentence of 18 years’ imprisonment imposed upon each applicant and in each case fix a minimum term of 15 years’ imprisonment before the applicant is to be eligible for parole.

For the foregoing reasons we will grant the applications of Cuong Lam, Hung Van, Hong Bui, Long Tran and Hoang Tran for leave to appeal against conviction. The appeals are treated as instituted instanter and allowed. The convictions of Hong Bui, Long Tran and Hoang Tran on count 1 and the convictions of Cuong Lam and Hung Van on counts 2 and 3 are quashed and verdicts of acquittal are to be entered on those counts. The convictions of Cuong Lam, Hung Van, David Nguyen and Linh Nguyen on count 1 are confirmed.

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[2008] VSCA 109

17 June 2008