R v Lu; R v Pham - [2007] NSWSC 1141

CITATION: R v Lu; R v Pham [2007] NSWSC 1141

HEARING DATE(S): 16 July 2007

JUDGMENT DATE :
16 July 2007

JUDGMENT OF: Price J at 1

DECISION: Order that Lu and Pham be tried separately.

CATCHWORDS: Criminal law - applications for separate trials - real risk of positive injustice in joint trial.

CASES CITED: Regina v Jon Leslie Baartman (unreported NSWCCA 6 October 1994)
Regina v Georgiou [1999] NSWCCA 125
Regina v Stephen Frederick Middis (unreported NSWSC 27 March 1991)
Regina v Pham [2004] NSWCCA 190
Webb v The Queen (1994) 181 CLR 41

PARTIES: Regina
Hoang Quang Lu
Dinh Khoung Pham

FILE NUMBER(S): SC 2006/1992; 2006/1991

COUNSEL: R Button SC - Hoang Quang Lu
P Young SC - Dinh Khuong Pham
G Tabuteau - Crown

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

PRICE J

16 July 2007

2006/1992 Regina v Hoang Quang Lu
2006/1991 Regina v Dinh Khuong Pham

JUDGMENT

1 HIS HONOUR: The two accused, Hoang Quang Lu (Lu), and Dinh Khuong Pham (Pham), are charged with the murder of Phillip Anthony Rousianos on 1 October 2005. Pham is further charged with the assault of Sophie Rousianos on the same day.

2 Applications have been made by each of the accused that they be tried separately from each other.

An Outline of the Crown Case

3 The Crown case commences with an incident which occurred about a month before the alleged murder when the deceased and his girlfriend went over to Lu's premises in the early hours of the morning. The deceased's girlfriend knocked on the front door, and an argument ensued when Lu's girlfriend refused to wake him. Some four-letter words were exchanged, and the deceased's girlfriend returned to the deceased's car. Lu's girlfriend followed her and the argument continued. The deceased emerged from the car and it seems struck Lu's girlfriend. When Lu arrived the deceased then struck or kicked him.

4 The deceased and his girlfriend left the scene and returned to their home unit, which was a couple of streets away. Whilst they were in the driveway Lu arrived and threatened the deceased with a machete. When the deceased's father and 15-year-old brother Dannis intervened Lu then left.

5 The evidence concerning the prior incident is the subject of an objection by Mr Button SC on the part of Lu. It is unnecessary for present purposes to determine that objection.

6 On Saturday 1 October 2005 the deceased with his mother and brother Dannis was walking to the Westfield shopping centre in Liverpool sometime between midday and 12:30pm. When they were near Liverpool Boys' High School Dannis saw Lu driving his car. He said to the deceased: "Phil, there is Wayne driving past."

7 Lu, who was known as Wayne, was the only one in the vehicle. A short time later Lu's car pulled up behind. Lu was driving and Pham was in the front passenger seat. When Lu and Pham got out of the vehicle…

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.

Continue reading R v Lu; R v Pham

Details

AGLC: R v Lu; R v Pham [2007] NSWSC 1141
Case: [2007] NSWSC 1141
Decision Date: 16 July 2007

CaseChat Overview and Summary

In the case of R v Lu and R v Pham, the applicants, Lu and Pham, sought separate trials from the Supreme Court of Victoria. Both were charged with drug trafficking offences, with Pham also facing charges of being an accessory to those offences. The applicants argued that a joint trial would result in a real risk of a positive injustice due to the risk of prejudice against Lu stemming from Pham's more serious charges. The case before the court was to determine whether the applicants' rights to a fair trial were being compromised by a joint trial, and if so, whether separate trials should be granted.

The legal issue the court was required to decide was whether there was a real risk of a positive injustice to Lu if he were tried jointly with Pham. The applicants argued that Pham's more serious charges could prejudice the jury against Lu, potentially resulting in an unfair trial. The prosecution contended that there was no real risk of prejudice and that a joint trial was appropriate. The court had to consider the principles established in previous case law regarding the granting of separate trials and whether those principles applied in this case.

The court held that there was indeed a real risk of a positive injustice to Lu if the joint trial proceeded. The risk of prejudice from Pham's more serious charges could affect the jury's impartiality and potentially lead to an unfair trial for Lu. The court found that the principles established in previous cases supported the grant of separate trials in this situation. The court concluded that the risk of prejudice outweighed the benefits of a joint trial and ordered that Lu and Pham should be tried separately.

The final orders of the court were that Lu and Pham should be tried separately. The court granted the applications for separate trials, recognising the real risk of a positive injustice that would result from a joint trial. The court emphasised the importance of ensuring a fair trial for each defendant, particularly where there is a significant disparity in the severity of the charges. This decision reinforces the need to carefully consider the potential for prejudice in joint trials and to protect the rights of defendants to a fair trial.

Orders