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

1. 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”).

2. 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.

3. 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

4. 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.”

5. 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 harm contrary to s 33(1) of the Crimes Act (counts 3, 4, 5 and 6) and affray (count 2).

6. The Crown case on count 7 relied largely on CCTV footage and admissions made by Mr Le and Mr Loeung in their ERISPs. It was the count based on the evidence of what happened as the attackers were leaving.

7. It is not necessary to recount the Crown case in relation to counts 1–6 in any detail for the purpose of these reasons. It can be briefly stated as follows. On 12 February 2016 two cars carrying between them nine men arrived at Mr Loeung’s premises in Bonnyrigg late one night with the intention of assaulting him and Mr Le. Mr Loeung’s wife and young children were present at Mr Loeung’s home. Mr Le and another man, Mr Oeng (“Uncle”), were visiting at that time. Some of the men who arrived were armed with beer bottles and the CCTV footage shows that, almost immediately upon their arrival, they commenced to seriously assault Mr Le.

8. It was common ground at the trial that eight of the nine men arrived at Mr Loeung’s home as a result of false information. Neither Mr Le nor Mr Loeung had done anything to these men. Only the ninth man, Danny Nguyen, had ever met Mr Le and Mr Loeung before. That had occurred minutes earlier when Mr Loeung and Mr Le had prevented Mr Nguyen from attempting to assault Mr Nguyen’s girlfriend, who was a neighbour of Mr Loeung. In response Mr Nguyen planned an act of revenge by telling his friends that Mr Le and Mr Loeung had “jumped” Mr Nguyen. It was common ground that this was untrue.

9. CCTV cameras were installed at Mr Loeung’s premises which caught the majority of the melee that ensued when the nine men arrived at Mr Loeung’s home. Mr Loeung can be seen to assault a number of persons with a large knife whilst Mr Le is assaulted nearby. Mr Nguyen and three other men were stabbed in the melee. Sadly, one of them, Mr Ho, later died as a result of his wounds. As the attackers commenced to run from the premises both Mr Le and Mr Loeung can be seen running back into the premises. This is a brief summary of the Crown case on counts 1–5.

10. The CCTV footage shows that after Mr Le and Mr Loeung ran inside they stayed inside for about 26 seconds. There was no evidence (apart from Mr Le’s and Mr Loeung’s) as to what was said or done inside the house.

11. Whilst the two men are inside the house, the first car, driven by Aaron Mah, with the wounded Mr Ho, drove off. The second motor vehicle, driven by Danny Nguyen in the driver’s seat, and with three passengers, sat stationary on the nature strip across from Mr Loeung’s house. It did not leave the scene.

12. After Mr Le and Mr Loeung have been in the house for 26 seconds, the CCTV footage depicts the two men running from the door of the house. Whereas Mr Loeung initially had one knife, he now has two and whereas Mr Le was previously unarmed he is now also seen to be carrying a knife. The two men are seen to run in proximity to each other from the house across the road where Mr Nguyen’s car remained at the scene.

13. What happens next cannot be seen on the CCTV footage as a tree in the foreground blocks the car. The driver of the car, Mr Danny Nguyen, was stabbed in his leg at that time but no other injuries or damage were caused. The Crown case was that he was stabbed by Mr Loeung (count 6). The CCTV footage then sees the two men return to the premises as the car drives off.

14. After the cars left, ambulances were called and Mr Le was conveyed to Liverpool Hospital to be treated for his injuries whereas Mr Loeung was taken to Fairfield Hospital.

The offenders’ ERISPs

15. Both Mr Le and Mr Loeung agreed to be interviewed by police in hospital whilst they were being treated for their injuries.

16. In his ERISP Mr Le made full admissions to getting the knife and running to the car. He accepted that he went back inside and came out with a knife and went across to the Liberty after the nine men had retreated to their cars. He said that when he got to the Liberty he hit his knife against the rear driver's window. He told police that the window was closed and his knife broke when he struck it against the closed window. The only issue at trial was whether he was acting in self-defence at the time. Although he fully admitted his own involvement he denied seeing Mr Loeung in the kitchen, whilst running to or whilst at the car.

17. In his ERISP Mr Loeung told the police he had two knives and Mr Le had a knife. They first went inside, locked the door and then came back outside and just started throwing the knife. He said he was swinging the knife towards them. “We rushed back out, showed them the knife and then started chopping them,” he said. He was asked whether he stabbed anyone at that point and he said, “I wouldn’t remember that moment, very hyped up.” He was asked, shortly thereafter, “What happened to those knives?” and he replied, “The knife, I ‑ during that moment, when we, like, chop them, whatever, they just pulled the knife into their car and then they drive off.” He was asked, “When you say chop them, what, you stabbed them?” And his reply was, “Stab them, chop them, I don’t know what we did.”

18. Both men agreed running to the car with their respective knives but denied doing it as part of any agreement and claimed they were acting in self-defence.

Count 7 – Crown case

19. The Crown case on count 7 was based on principles of complicity. It was alleged that both men had formed an agreement to arm themselves with three knives with the common intention to assault persons in the sense of those persons apprehending immediate violence.

20. The Crown opened to the jury on counts 6 and 7 as follows

“Danny Nguyen's driver’s window was down, or unwound at the time the two accused approached the Liberty. The Crown says the accused Loeung was striking at Danny Nguyen whilst he was seated in the driver's seat with the knives that he was holding. And the Crown case is that Duc Le at this point was striking at the car window directly behind the driver. So the rear passenger behind the driver, but that window was not unwound or open, it was a closed window.

The Crown says whilst Duc Le was striking at that window with the knife he was holding, his knife broke. That is the handle separated from the blade. And the Crown says each of those items end up on the roadway …

…

Count 7 is the joint count against each accused, and the Crown case in relation to count 7 is the actions of each accused arming themselves with knives, a single knife in the case of Duc Le, and two in the case of the accused Loeung, and approaching the Liberty, and doing what they did when they got there with their knives represents the joint ‑ count 7 on the indictment against each of the two accused.

Count 7, just briefly again, is the joint count involving an allegation against each accused and you will have seen or noticed that it is a joint count and that is because the Crown case for count 7 is an allegation that each accused participated in another legal concept but a concept called "joint criminal enterprise" between themselves to commit the offence in count 7. In due course her Honour will direct you in relation to that legal concept, "joint criminal enterprise" and what the Crown must prove beyond reasonable doubt in relation to that count.

The Crown case factually … is that the two accused armed themselves with a weapon, in this case three knives ‑ one in the hand of Duc Le; and two in the hands ‑ one in each hand of the accused Loeung. Having armed themselves with a weapon, they crossed the road and ran towards the Liberty. The Crown case is that, at that time, including when they got to the Liberty and what they did when they got there, the accused were armed with an intent to commit an indictable offence, namely assault, and her Honour will come to direct you what an assault means at law.

…

In his interview with police, [Mr Le] was asked about what the accused Loeung was doing and whether he had any knife when Duc Le went across the road to the Liberty and in his interview with police he told them in broad terms he didn't notice the accused Loeung, where he was or whether he had a knife at the time and he didn't see him at that time.”

The “no case” submissions

Mr Le

21. Mr Pierce of counsel submitted that the onus was on the Crown to show at least some evidence of an agreement between the two men as it the substance of count 7. He pointed to the fact that, in his ERISP, Mr Le said that he did not even know Mr Loeung was there. Mr Le entered the house first. Mr Loeung’s mere presence in the house did not make out the offence. Mr Pierce submitted that even if his client knew Mr Loeung had two knives it did not mean they were in agreement with each other. He submitted the Crown’s case on this point was “complete speculation”.

22. Mr Pierce submitted that there was a distinction in Mr Le’s ERISP, where he talks about wanting to damage the window, which is property damage, and the charge of attempting to assault. He submitted the Crown could not rely on reckless assault because the count was intent to assault.

23. Mr Pierce summarised his position as follows. Mr Le may not have even have known that Mr Loeung had two knives; he may have independently decided to go outside anyway; and, even if he did know that Mr Loeung had a knife, that does not mean that he was in an agreement with him to commit the offence.

Mr Loeung

24. Mr Terracini SC submitted that there was simply no evidence whatsoever that both of the offenders knew that there was going to be three knives. He submitted this was not a matter of inferences; neither offender knew what the other was going to do when they armed themselves. The 26 seconds during which the two men were inside was the only period where there could be a joint criminal enterprise formed. He submitted that the CCTV footage does not show both men running at exactly the same time. Nor, he submitted, did they arrive at the same time. Rather, he argued that what took place was “completely and utterly unknown” except that, at some stage, the offenders armed themselves: Mr Le with his first knife; Mr Loeung with his second.

25. Mr Terracini noted that Mr Oeng was called as a witness and was available to give evidence of what took place in the house at the time but was not asked about whether there was an agreement or who picked up what knife or as to what he saw. He submitted it was “beyond speculative” that the Crown would be able to articulate to the jury when the alleged agreement took place. Accordingly, it was not a matter of competing inferences.

26. On the distinction between property damage and assault, Mr Terracini asked rhetorically, “how can you assault a car?” He emphasised that the indictment alleged “an assault” and not “reckless damage to property” and submitted the Crown could not prove at the time the car was struck his client was involved in any joint criminal enterprise. As to the alleged meeting of the minds at the motor vehicle, Mr Terracini submitted that the Crown could not prove where Mr Loeung and Mr Le were specifically standing. Nor could the Crown prove whether there was any conversation between them, nor that either Mr Loeung or Mr Le knew what the others would do. He submitted those considerations were absolutely fundamental and the Crown could not get over that.

Crown submissions

27. The Crown Prosecutor submitted that his opening did not limit the offence to being completed when Mr Le and Mr Loeung were inside the kitchen. He submitted, as his primary argument, that he did not have to prove an oral agreement between the parties; there was ample evidence to infer an agreement. The relevant inferences could be drawn from the fact that the offenders returned inside a “relatively small house” for a period of 26 seconds after which Mr Le emerged with Mr Loeung “hot on his heels”. Together, the Crown said that each offender ran towards the direction of the Liberty and Mr Le accepted that in his own evidence.

28. It was further submitted that, if the jury were of the view that Mr Loeung and Mr Le were side by side to each other at the car, within a metre of each other, it was open to the jury to find that they must have been aware of what the other was carrying at that time. The Crown submitted it was a classic matter for the jury to determine on the available evidence that the offenders reached agreement or meeting of the minds.

29. As for the available inferences to be drawn, the Crown Prosecutor submitted that the jury could be satisfied that the offenders committed assault “by reason of putting in fear” because by the time Mr Le reached the car there were occupants inside the case. On Mr Le’s own account he was smashing the knife against the window and this is sufficient to constitute assault.

30. As to the form of the count on the indictment, the Crown submitted that it had particularised three knives but argued that it did not need to establish three knives. On the Crown’s submission, all it needed to satisfy was that Mr Le was armed with a weapon.

Reply

31. In reply, Mr Pierce submitted the Crown should be held to three knives because otherwise the jury might pick and choose between whichever of the three knives were possessed by one or the other. He also added that it was not the case he understood the Crown to be presenting from its opening.

32. Mr Terracini submitted that if the Crown’s case was that it was fear of assault, then the first time his client had heard of that was today at about 3.34pm after the Crown closed its case.

Consideration

33. It would only be open to me to direct a verdict of not guilty on count 7 if I was satisfied that there was a defect in the evidence such that, taken at its highest, it could not support a verdict of guilty. In Doney v R (1990) 171 CLR 207; [1990] HCA 51 the High Court stated the principle in this way (at 214):

“… if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at it’s highest, it will not sustain a verdict of guilty.”

34. In the present case the question is whether there is evidence from which inferences can be drawn to support the Crown case that the two men were acting in concert. The fact that there may be competing hypotheses or inferences available does not mean that there should be a directed verdict. It is not open to direct a verdict of not guilty on the basis that inferences other than those advanced by the Crown might be open: R v JMR (1991) 57 A Crim R 39. In Saffron v Director of Public Prosecutions; Allen v Director of Public Prosecutions (1989) 16 NSWLR 397 Gleeson CJ explained the matter in this way (at 401):

“It is a corollary of the fundamental principle that the prosecution carries the onus of proof of guilt beyond reasonable doubt that a jury cannot convict on the basis of circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances: Plomp v The Queen (1963) 110 CLR 234 and Chamberlain v The Queen [No 2] (1984) 153 CLR 521. It does not follow, however, that simply because it is possible, looking at the objective circumstances established by the evidence in a case, to construct a hypothesis consistent with the innocence of the accused, the case is not one fit to go to a jury. That entirely overlooks the role of the jury in a criminal trial.”

35. It follows that if the evidence adduced by the Crown is capable of proving each of the elements of each offence beyond reasonable doubt, then the matter should be left to the jury for determination: R v Bilick and Starke (1984) 36 SASR 322; (1984) 11 A Crim R 452.

36. The identified defects in the Crown case was the absence of evidence to establish: any agreement, that there was joint possession of three knives and that any agreement was to “assault” others. It was accepted that the negation of self-defence was a jury question and not a proper basis to seek a directed verdict in this matter.

37. The elements of an offence contrary to s 114(1)(a) are that an offender armed himself with the intention of committing an assault. The Crown’s case was not that Mr Le had intended to use or attempt to use the knife against anyone else, or even that he had threatened to use it. Rather, the Crown’s case was that Mr Le had intended to commit an assault in the common law sense of the word: “by reason of putting in fear” the occupants of the car. This is consistent with the Crown opening. It is not an element of the offence that there any actual assault is committed, although a subsequent assault would be evidence of the relative intention at the time.

38. The trial proceeded on the basis that the agreement was formed during the 26 seconds both men were inside the house. During submissions in response to the no case application, the Crown Prosecutor submitted that the agreement could have been formed at any stage after the two men left the house including when they were both at the car in proximity to each other. I accept that the evidence permits the Crown to put his case that way and no prejudice is caused by him being permitted to do so given the broad terms in which he opened his case to the jury.

35. Prior to the trial commencing, and during the exchanges with counsel on this application, I raised with the Crown Prosecutor why Mr Le had been charged with Mr Loeung on indictment in the Supreme Court. There is no apparent reason why the case had to be brought as one of one of joint criminal enterprise. As the cases I referred to in Blundell v R [2019] NSWCCA 3 demonstrate, it is evident that the Crown usually only needs to rely upon principles of joint criminal enterprise when it is unable to identify exactly which of the participants did what act in furtherance of the crime committed. That is not this case. Both men agreed to being in possession of the weapons and running towards the car and that is confirmed by the CCTV footage.

36. There were thus two aspects of count 7 that caused me some disquiet, being why this charge was brought as one of joint criminal enterprise and why Mr Le was prosecuted in the Supreme Court rather than the Local Court. Despite my reservations in the way that the offence was charged I was not satisfied that that there was any defect in the case such that, taken at its highest, it could not support a verdict of guilty. Much of the evidence in support of count 2 was uncontested. The evidence to establish that the two men acted as they did as part of a joint criminal enterprise was as follows:

1. The CCTV footage shows the two men running into the house in close proximity to each other.

2. The CCTV footage shows that the two men were inside the house for 24 seconds.

3. The CTTV footage shows that the two men ran from the house in proximity to each other at a time when Mr Long is clearly seen to have two knives and Mr Lee has one.

4. Both men admit being present at the car at the relevant time (they just deny seeing each other there)

5. The witnesses called in the Crown case, who were in the car, described there being more than one person at the car.

41. Although there is a competing inference that the two men made separate decisions to arm themselves and run outside again, that does not mean there was a defect in the Crown case. Based on this evidence, most of which was not in dispute, I am satisfied that inferences could be drawn that the two men ran to the car in joint possession of the three knives with the intention of assaulting the men in it or that they entered into a spontaneous agreement once they arrived at the car.

42. For these reasons I did not exceed to the accused’s applications that I take count seven from the jury.

Orders

43. Applications for directed verdicts dismissed.

**********

Decision last updated: 07 June 2019