R v Ly, Nguyen and Ngo - [2011] SASCFC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v LY, NGUYEN AND NGO
[2011] SASCFC 133
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Anderson and The Honourable Justice Peek)
11 November 2011
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - HOMICIDE - MURDER - ALTERNATIVE VERDICTS - DIRECTIONS TO JURY - WHERE EVIDENCE TO SUPPORT VERDICT OF MANSLAUGHTER
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - OTHER MATTERS
Three appeals against conviction - where defendants Ly and Ngo convicted by jury verdict of murder and defendant Nguyen convicted by jury verdict of manslaughter - where defendants appealed to this Court seeking the setting aside of the verdicts and substitution of verdicts of acquittal - where prosecution case at trial that each defendant was party to a plan to kill or cause the deceased grievous bodily harm and that each defendant played an active role in the plan - where on appeal the Director accepted that there had been a misdirection by the trial Judge on the alternative charge of manslaughter by unlawful and dangerous act, and further accepted that the proviso could not be applied and that the defendants’ convictions should be set aside and retrials ordered - where the defendants contend that the verdicts were unsafe and unsatisfactory and that not only should the verdicts be set aside, but that verdicts of acquittal should be entered - whether verdicts unsafe and unsatisfactory.
Held:
As to defendants Nguyen and Ngo
(The Court) Appeals allowed - convictions recorded set aside - orders for retrial - the prosecution evidence against both defendants would allow a properly instructed jury to reach the conclusion that each defendant was a party to a plan to lure the deceased to the scene of the crime for the purpose of inflicting physical torture carrying with it an appreciable risk of serious injury for the purpose of extracting bank cards and pin numbers from the deceased to be used to obtain monies owed as part of drug trafficking - the evidence against the defendants would allow a properly instructed jury with respect to defendant Ngo to return a verdict of guilty of murder or alternatively of manslaughter, and with respect to defendant Nguyen a verdict of guilty of manslaughter.
As to defendant Ly
(Gray and Anderson JJ, Peek J in dissent): Appeal allowed - conviction recorded set aside - order for retrial - the prosecution evidence admissible against the defendant would allow a properly instructed jury having regard to the totality of the evidence against the defendant, to reach the conclusion that he was a party to a plan to lure the deceased to the scene of the crime for the purpose of inflicting physical torture carrying with it an appreciable risk of serious injury for the purpose of extracting bank cards…

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: [2011] SASCFC 133
Decision Date: 11 November 2011

CaseChat Overview and Summary

The case of *R v Ly, Nguyen and Ngo* involved three appeals against criminal convictions heard by the Court of Appeal of the Supreme Court of Victoria. Ly and Ngo were convicted of murder, while Nguyen was convicted of manslaughter. The prosecution's case at trial was that each appellant was a party to a plan to kill the deceased or cause grievous bodily harm, and that each had played an active role in executing this plan. The appeals sought to have the jury verdicts set aside and replaced with acquittals.

The central legal issues before the Court of Appeal concerned whether the jury verdicts were unsafe and unsatisfactory, and whether a misdirection by the trial judge on the alternative charge of manslaughter by unlawful and dangerous act had occurred. The Director of Public Prosecutions conceded that a misdirection had indeed taken place and that the proviso, which allows an appellate court to uphold a conviction despite an error if it is satisfied no miscarriage of justice occurred, could not be applied. This concession meant that the convictions of at least some of the appellants would need to be set aside.

The Court of Appeal, applying the principles established in *M* and *R v Nguyen*, considered the task of an appellate court in assessing whether a verdict is unreasonable or unsupported by evidence. This involves determining whether it was open to the jury to be satisfied beyond reasonable doubt of guilt, while giving full regard to the jury's advantage in seeing and hearing witnesses. In this instance, the Director's concession regarding the misdirection was accepted as properly made, leading to the conclusion that a risk of miscarriage of justice arose for each appellant.

The Court ultimately ordered retrials for Nguyen and Ngo, and set aside the conviction of Ly, substituting a verdict of acquittal. This divergence in outcome for Ly was based on his specific ground of appeal concerning an unsafe and unreasonable verdict, which the majority found to have been made out.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Attention was drawn to the High Court decision of Nguyen, where Hayne, Heydon, Crennan, Kiefel and Bell JJ observed:[4][4] R v Nguyen (2010) 242 CLR 491, [33].The task of an appellate court in considering whether a verdict of guilty returned by a jury "should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence" was described by this Court in M. As four members of the Court pointed out in M, the conclusion that a verdict should be set aside on this basis is often expressed in terms of the verdict being "unsafe or unsatisfactory", "unjust or unsafe" or "dangerous or unsafe". The question for the appellate court is one of fact."[T]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."As the plurality in M went on to point out:"But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."The authoritative guidance which this Court provided in M about the task of a court of criminal appeal was expressed in the following terms:"It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."[Footnotes omitted.]It is this authoritative guidance that this Court is to follow when considering the appellants’ submissions on this topic.The Evidence at Trial There was a substantial body of unchallenged evidence that persons who knew the deceased had not seen him since at least the morning of 3 May 2008. However, as the Judge pointed out in summing up, that evidence was largely overtaken as a consequence of the evidence of Tran that he had killed the deceased. No party on the appeal suggested that it had not been established that the deceased had been killed.

Decision

Reasons for decision

ANDERSON J PEEK J (dissent)

The Director’s concession that there had been a material misdirection was properly made. I consider that a risk of a miscarriage of justice arose in the case of each appellant. There is no room for the application of the proviso. Conclusion For these reasons the conviction of each appellant should be set aside. Orders for retrial should be made. I agree that the convictions of each appellant should be set aside and that orders for retrial should be made. I agree with the reasons of Gray J. I would allow the appeal of the appellant Ly, set aside the conviction and substitute a judgment and verdict of acquittal. I would allow the appeal of the appellant Nguyen and order a re-trial. I would allow the appeal of the appellant Ngo and order a re-trial. I have read the draft judgment of Gray J. I agree with his Honour that the plain misdirection of the trial Judge constituted error as a matter of law and that each of the verdicts must necessarily be set aside. I also agree with his Honour’s proposed disposition of the appeals of Nguyen and Ngo. I disagree with his Honour only in relation to the disposition of the appeal of Ly. I consider that Ly has made out his ground 9 of appeal (unsafe/unreasonable verdict) and accordingly the appropriate order in his case is that a judgment and verdict of acquittal be entered rather than an order for a re-trial. The prosecution case generally The appellant Chhay Ly was tried on a joint Information with Ngoc Tran, Jean Ngo, Huan Nguyen and Phillips Lim. Gray J has referred to the general nature of the prosecution case. In relation to Ngoc Tran, there was strong evidence that the deceased owed him a substantial amount of money, some $40,000, which he was unwilling or unable to pay. There was a body of circumstantial evidence, including DNA evidence, leading to the conclusion that Tran killed the deceased at 52 South Terrace and later organised the disposal of the deceased’s body and motor vehicle. A good deal of the evidence became redundant when Tran admitted in evidence that he had killed the deceased, asserting that it had occurred in self defence. In relation to Ngo, there was strong evidence of his animosity toward the deceased (including some previous violence by Ngo) and evidence that on the evening of 2 May 2008 he had asked Keal if he could “set up” the deceased. Importantly, during the course of the night of 2 May 2008, Ngo was at the car park of MacDonald’s when the deceased arrived and, according to the witness Keal, Ngo made a phone call to Tran during which he said “Paul (the deceased) is here, come and get him”. According to a further witness at MacDonald’s, Ngo stated that he wanted to “bash” the deceased. Later, after the time of the murder, a GPS unit was seized from Ngo’s car by police which revealed that the car had recently travelled to 52 South Terrace. In relation to Nguyen and Lim, there was evidence that they drove Tran to 52 South Terrace and DNA evidence on gloves found at the house showed that each had been inside the house, on the prosecution case establishing at the very least that they cleaned up the house after the murder. There was also strong evidence that they later attended at ATM machines with the deceased’s cards and attempted to withdraw cash. The attempts were unsuccessful but, importantly, correct pin numbers were used. The prosecution case against the appellant Ly

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J,

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