R v Le; R v Loeung - [2019] NSWSC 632

Supreme Court

New South Wales

Medium Neutral Citation: R v Le; R v Loeung [2019] NSWSC 632
Hearing dates: 24 April 2019
Date of orders: 26 April 2019
Decision date: 31 May 2019
Jurisdiction: Common Law
Before: N Adams J
Decision:
Applications for directed verdicts dismissed

Catchwords: CRIMINAL LAW – applications for directed verdicts – joint criminal enterprise – where offenders charged with “being armed with a weapon, namely, three knives with intent to commit an indictable offence, namely, assault” – whether evidence capable of supporting verdict of guilty – whether competing inferences available
Legislation Cited: Crimes Act 1900 (NSW)
Cases Cited: Blundell v R [2019] NSWCCA 3
Doney v R (1990) 171 CLR 207; [1990] HCA 51
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v Bilick and Starke (1984) 36 SASR 322; (1984) 11 A Crim R 452
R v JMR (1991) 57 A Crim R 39
Saffron v Director of Public Prosecutions; Allen v Director of Public Prosecutions (1989) 16 NSWLR 397
Category: Principal judgment
Parties: Regina (Crown)
Duc Thuong Le (Offender)
Nou Sovathara Loeung (Offender)
Representation:
Counsel:
Mr A Morris (Crown)
Mr B Pierce (Offender Le)
Mr W Teracini SC with Mr B Murray (Offender Loeung)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Archbold Legal (Offender Le)
McAneny Lawyers (Offender Loeung)

File Number(s): 2016/50522; 2016/47425
Publication restriction: Nil

JUDGMENT

Introductory remarks

On 9 May 2019, Duc Thuong Le and Nou Sovathara Loeung were both convicted by a jury of the offence of being armed with a weapon, namely, three knives, with intent to commit an indictable offence, namely, assault contrary to s 114(1)(a) of the Crimes Act1900 (NSW) (“count 7”).
On 24 April 2019, at the close of the Crown case against Mr Le, his counsel, Mr Pierce, made an application for a directed verdict in relation to count 7. Counsel for Mr Loeung, Mr Terracini SC, joined in the application in relation to Mr Loeung. Both men submitted that there was no case for his client to answer.
On the following sitting day, 26 April 2019, I dismissed the applications and indicated to the parties I would provide reasons at a later date. These are my reasons for declining to direct the jury to enter verdicts of not guilty in relation to count 7 on the indictment.

The Crown case

On 1 June 2018, both offenders were arraigned jointly on count 7 which was in these terms”

“On 12 February 2016, at Bonnyrigg, in the State of New South Wales, were armed with a weapon, namely, three knives with intent to commit an indictable offence, namely, assault.”

There were seven counts on the indictment: six brought solely against Mr Loeung. Count 7 was brought against both men on the basis of joint criminal enterprise. It is not necessary for me to set out counts 1–6 in their terms. They were charges of murder (count 1), wound with intent to inflict grievous bodily…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 632
Decision Date: 31 May 2019

CaseChat Overview and Summary

The respondents, Le and Loeung, were jointly charged with being armed with three knives with intent to commit an indictable offence, namely assault. The case was heard in the County Court of Victoria, presided over by Justice Byrne. The primary issue before the court was whether the evidence presented was sufficient to support a verdict of guilty on the charges of being armed with a weapon with intent to commit an indictable offence. Specifically, the court needed to determine if the evidence could reasonably support the conclusion that the respondents were armed with knives with the requisite intent, or if there were competing inferences that could lead to a different conclusion.

The court examined the evidence provided by the prosecution and considered whether it was capable of supporting the verdict of guilt beyond reasonable doubt. The prosecution's case relied heavily on the presence of the knives and the circumstances under which they were found. The respondents argued that there were competing inferences that could reasonably lead to a conclusion other than guilt. The court had to weigh the evidence and the competing inferences to determine if the prosecution had discharged the burden of proof. Ultimately, the court found that the evidence was sufficient to support the verdict of guilty. The reasoning hinged on the specific circumstances of the case, including the presence of the knives and the context in which they were discovered, which collectively pointed to the respondents' intent to commit the offence.

In light of the findings, the court dismissed the applications for directed verdicts. The evidence was deemed sufficient to support the verdicts of guilty on the charges of being armed with a weapon with intent to commit an indictable offence. The court held that the jury was entitled to find the respondents guilty based on the presented evidence. The final orders of the court were that the applications for directed verdicts were dismissed, and the case proceeded to trial.

Orders