R v Lam & Ors

[2008] VSCA 121

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN   

v
CUONG QUOC LAM – 1st Applicant	No 389 of 2005
and
HUNG TU VAN – 2nd Applicant	No 008 of 2006
and
LINH VAN NGUYEN – 3rd Applicant	No 009 of 2006
and
THANH NHA NGUYEN – 4th Applicant	No 001 of 2006
and
LONG THANH TRAN – 5th Applicant	No 392 of 2005
and
HONG BUI – 6th Applicant	No 002 of 2006
and
HOANG QUANG TRAN – 7th Applicant	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 MENTION:	24 June 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 121

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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:

1. The Court delivered judgment in this matter on 17 June 2008.  We omitted to deal in our reasons with ground 5 of the application by Linh Nguyen for leave to appeal against conviction and grounds in substantially the same terms advanced by the other applicants save David Nguyen.[1]  We now do so.

   [1]As the applications by Hoang Tran, Long Tran and Hong Bui resulted in acquittals, the ground cannot affect the disposition of their applications.

1. Ground 5 is as follows:

The learned judge erred in his directions to the jury on manslaughter insofar as he failed accurately to describe the state of knowledge that is required of an accessory who aids and abets the principal in the killing of another where the accessory is guilty only of manslaughter.

PARTICULARS

The learned judge erred by confusing “intent” on the part of the accessory with that person’s “knowledge” and thereby obfuscated the issue that required determination.  In the alternative, the learned judge illegitimately broadened the scope of intent/knowledge required in order to found guilt of manslaughter by directing that an intent to cause “some harm” by an assault would suffice rather than the knowledge that the principal was carrying out an act that was, in its nature, unlawful and dangerous.

1. In the course of his charge to the jury, the trial judge, speaking of the possibility that the applicants might be found guilty of manslaughter, said:

[I]f you were not satisfied that they were there aiding and abetting the commission of the crime of murder, you would have to consider whether or not a particular accused at the time that he aided and abetted intended only that some harm be inflicted and thus was intending the crime of manslaughter of an unlawful and dangerous act …

1. The direction is criticised as misstating both the mental element required of aiders and abettors in respect of the principal crime and the risk of harm necessary to establish manslaughter. 

1. The intention required of an aider and abettor is an intention to assist or encourage the commission of a principal crime.[2]  In addition, the aider and abettor must know the essential facts that constitute the principal offence.[3]  It is not a requirement that the aider and abettor intend the commission of the principal crime. 

   [2]NCB v Gamble [1959] 1 QB 11, 20 (Devlin J).

   [3]Giorgianni v R (1985) 156 CLR 473, 481 (Gibbs CJ).

1. As to harm, in order to be guilty of manslaughter by an unlawful and dangerous act, the circumstances must be such that a reasonable person in the accused’s position would have realized that he or she was exposing another to an appreciable risk of serious injury.  It is not sufficient that there was a risk of some harm resulting.[4]

   [4]Wilson v R (1992) 174 CLR 313.

1. Failure to leave a viable manslaughter alternative to murder may vitiate a conviction for murder.[5]  It is no answer that the jury, properly instructed, found the applicant guilty of murder.  As Gleeson CJ and Gummow J said in Gilbert v R:

[A] jury may hesitate to acquit and may be glad to take a middle course which is offered to them.[6] 

[5]Gilbert v R (2000) 201 CLR 414.

[6]Above, 421.

1. Counsel for the applicants submitted that the misdirections resulted in the trial judge posing an incongruous and unattractive option for the jury to consider, thereby rendering a finding of manslaughter more difficult than it should have been.

1. In our opinion there are two answers to this submission.  The first is that a verdict of manslaughter need be left to a jury only if manslaughter is a viable alternative to murder.  In the present case, manslaughter required only knowledge on the part of the applicants of acts by the principals which exposed James Huynh to an appreciable risk of serious injury as distinct from acts done with an intent to kill or cause really serious injury.  In the circumstances of this case, we do not consider one was a viable alternative to the other. 

1. The applicant Linh Nguyen was in close proximity to a ferocious attack with swords upon James Huynh, which caused the terrible injuries we have earlier described.  According to the evidence of Amanda Cheng and Sovichea Tan, who were in a stationary car at the traffic lights at the intersection of Chapel Street and Alexandra Avenue while James Huynh was being attacked with swords, the car driven by the applicant arrived and parked next to the bus stop at which the attack was taking place.  Other witnesses gave like evidence.  The applicants Cuong Lam, Van Hung and David Nguyen were even more immediately involved in the attack upon James Huynh.

1. We are also of the opinion that the evidence in support of the higher state of knowledge asserted by the prosecution was so strong, that proper directions as to the legal consequences of entertaining a doubt about that matter could not have made a difference to the result.[7] 

   [7]Compare Gilbert v R, above, at 422 (Gleeson CJ and Gummow J).

1. The real question at trial was whether the applicant Linh Nguyen encouraged or assisted in the commission of the principal offence, not whether that offence was murder or manslaughter.  This was the basis upon which this aspect of the case was fought by the parties.

1. Secondly, in our view, when the charge is considered as a whole, there was no appreciable risk that the jury were misled as to the mental element required of an aider and abettor or as to the harm that must be intended by a person guilty of manslaughter by an unlawful and dangerous act. 

1. When he broached the subject of aiding and abetting, the trial judge told the jury in clear terms and several times that an aider and abettor must know the principal offender was committing the principal crime with the necessary intent.  Later, he referred to an aider and abettor intending that harm be inflicted.  He had introduced that remark by saying that ‘The principles of … aiding and abetting which I have already explained to you apply in the same way if you are considering the crime of manslaughter.’  We doubt that the slip would have deflected the jury from a proper consideration of manslaughter. 

1. Similarly, when he introduced the subject of manslaughter in his charge, the trial judge told the jury that the prosecution must prove that the acts of the accused were unlawful and dangerous.  He then explained the term ‘dangerous’, saying:

The expression “dangerous” is to be understood as follows:  the act or acts would be dangerous for this purpose, whatever the accused’s intention, if a reasonable man in the accused’s then situation must have realized that the act or acts would expose the deceased to an appreciable risk of serious injury.

His Honour repeated that statement twice.  In the context of those observations, his Honour referred to acts ‘that fell short of causing really serious injury.’  When he turned to the question whether the aiders and abettors might be guilty of manslaughter, his Honour again used the expression ‘some harm less than really serious injury.’ 

1. It is not without significance that no counsel took exception raising the matters now said to render defective the charge as to the liability of aiders and abettors in manslaughter.

1. In our opinion the jury would have understood that the applicant was guilty of manslaughter if he intended to encourage or assist in an assault which he knew a reasonable person would have realized exposed James Huynh to an appreciable risk of serious injury.

1. For the foregoing reasons, we are of the opinion that the ground has not been established.

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