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 and pin numbers from the deceased to be used to obtain monies owed as part of drug trafficking - the circumstantial evidence against the defendant together with the implied admissions made would allow a properly instructed jury to return a verdict of guilty of murder or alternatively of manslaughter.
(Peek J, in dissent)
Appeal allowed - conviction recorded set aside - appeal ground that verdict unsafe and unsatisfactory, made out - would substitute a judgment and verdict of acquittal.
McAuliffe v The Queen (1995) 183 CLR 108; Gillard v The Queen (2003) 219 CLR 1; M v The Queen (1994) 181 CLR 487; R v Nguyen (2010) 242 CLR 491; R v Wilson (1992) 174 CLR 313; Carroll v The Queen (2009) 83 ALJR 579; R v Fragomeli [2008] SASC 96; R v Khalil (1987) 44 SASR 23; R v HS (2004) 90 SASR 28, considered.

R v LY, NGUYEN AND NGO
[2011] SASCFC 133
Court of Criminal Appeal Gray, Anderson and Peek JJ
GRAY J:

Chhay Ly, Jean Ngo, Huan Hoang Lam Nguyen, Ngoc Thai Tran and Phillips Lim were jointly charged with the offence of murder. It was alleged that the defendants murdered Paulo Jorge Miranda at Pooraka between 3 and 7 May 2008.
On 31 March 2011, the defendants Ly, Ngo and Tran were convicted by jury verdict of murder. The defendants Nguyen and Lim were acquitted of the crime of murder by majority verdict, but were convicted of the crime of manslaughter by majority verdict.
Ly and Ngo have appealed against their convictions of murder. They seek the setting aside of their convictions and the substitution of verdicts of acquittal. Nguyen has appealed against his conviction of manslaughter and seeks the setting aside of that verdict and the direction of an order of acquittal. Tran and Lim have not appealed against their convictions.
It was the prosecution case that the deceased was murdered. It was said that each of the defendants was party to a plan to kill or to cause the deceased grievous bodily harm and that each defendant also played an active role in the implementation of the plan. The evidence to support the prosecution case was circumstantial. The body of the deceased has not been found.
During the course of the trial, Tran, although having pleaded not guilty, claimed that he killed the deceased and asserted that his co-defendants were not parties to that killing. He gave sworn evidence and claimed to have acted in self-defence. The Director did not accept Tran’s evidence that he alone was involved in the killing of the deceased. As noted above, the jury returned a verdict of guilty of murder against Tran.
In the course of the Judge’s summing up, directions were given to the jury on matters of law. The Judge gave directions as to each element of the crime of murder including directions with respect to joint criminal enterprise. The Judge introduced the topic of the joint charge in the following manner:
As is obvious, there are five people charged in this case. They are all charged with the one offence of murder. They are jointly charged. In a moment I will be giving you directions as to how you should approach your task and what the elements of the charge are. However, I direct you that although some of the evidence is common to all of them there is certain evidence that is specific to each accused and I will be trying to isolate that during the course of my address. You must give separate considerations to the case against each particular accused and that accused’s answer to the charge. You will be asked to consider your verdicts in relation to each accused quite separately, and indeed give separate verdicts in relation to each. It does not follow that a verdict in relation to one accused has to be the same as a verdict in relation to another. You heard arguments to that effect. It all depends on your view of the case against a particular accused.
Later in his summing up, the Judge further addressed joint criminal enterprise:
If two or more persons join in a joint criminal enterprise, every act done and words spoken in furtherance of that enterprise by any of them is deemed to be done and spoken by all of them. In other words, the combined actions of two or more persons, with a common criminal intent, in implementing an arrangement, previously agreed upon by them, makes them all guilty of the resulting crime. The law considers that in such circumstances each person is acting both on his own account and on behalf of the other person or persons concerned. In other words, they were acting as a team and it really does not matter who did what, as long as they have agreed to act as a team to commit the particular offence, in this case murder.
So, if it is proved that all accused had an agreement or a part of an agreement to cause grievous bodily harm to the deceased and, in the execution of that agreement the deceased was killed, it does not matter who did the actual killing. The agreement might be the result of a carefully-worked out plan or might be made on the spur of the moment, without a word being spoken, just a nod. However, if it is arrived at and if as a result of that agreement the deceased is killed, then all of those people who are proved to be part of that agreement knowingly will be guilty of murder. Whether such an agreement existed and who was involved in it is a matter for the evidence and I will turn to that in a moment. However, I direct you, before any of the accused can be found guilty of murder on that basis, it must be proved beyond reasonable doubt that there was such an agreement; namely, to cause grievous bodily harm, or indeed to kill Mr Miranda deliberately, and that pursuant to that agreement the particular accused whose case you are considering played some active part in implementing that agreement, intending to, when he played that part to kill or cause grievous bodily harm, knowing that the agreement was still on foot when he played that part. If all of those things are proved beyond reasonable doubt, then he will be guilty of murder.
So, I repeat: it must be proved beyond reasonable doubt that when you look at the evidence against each accused individually, that whoever the accused was, this case you are looking at, it has to be proved that he was part of an agreement to kill or cause grievous bodily harm to Mr Miranda; he played an active part in the implementation of that agreement, intending to kill or cause grievous bodily harm and that agreement was still on foot when he played that active role. If those things are proved beyond reasonable doubt he will be guilty of murder and you will look at the case and the evidence against each of the accused individually as to whether individually each accused satisfies those elements.
It is to be observed that the above extracts of the Judge’s summing up are in conventional terms and accord with the guidance given by the High Court in McAuliffe[1] and in Gillard.[2]
[1] McAuliffe v The Queen (1995) 183 CLR 108, 117-118.
[2] Gillard v The Queen (2003) 219 CLR 1, [19], [24]-[26], [109]-[112].
Two principle issues arise for determination. It was submitted that the Judge misdirected on the alternative charge of manslaughter by unlawful and dangerous act. The Director accepted that there had been a material misdirection, that the proviso could not be applied and that the co-appellants’ convictions should be set aside and retrials ordered. The appellants accepted this concession. However, it was contended that in any event the verdicts were unsafe and unsatisfactory and that not only should the verdicts be set aside, but that verdicts of acquittal should be entered.
It is convenient to first address the submission that the verdicts were unsafe and unsatisfactory.
Unsafe and Unsatisfactory
It was submitted that the verdicts of murder in the case of Ly and Ngo and the verdict of manslaughter in the case of Nguyen were unsafe and unsatisfactory in the sense described by the High Court in M[3] and, as a consequence, each appellant sought a setting aside of the conviction and a direction that there be an acquittal. It was contended that the evidence led at trial could not on any view lead a properly instructed jury to reach verdicts of guilty of murder or manslaughter. The Director submitted that in the event that the convictions were set aside, an order should be made remitting each appellant for retrial. The determination of these contentions requires this Court to closely consider the evidence led in the trial.
[3] M v The Queen (1994) 181 CLR 487.
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.
There was a body of essentially undisputed evidence that the deceased was heavily involved in the sale of illicit drugs and that he was involved in this activity with Ly, Ngo and Tran.
There was further undisputed evidence that blood of the deceased was found at premises at 52 South Terrace, Pooraka. This property was sublet by Ly for a period that commenced a short time prior to 3 May 2008. A search of the GPS from Ngo’s motor vehicle on 5 May 2008 revealed a recent entry of the address of 52 South Terrace, Pooraka. Gloves recovered from a wheelie bin located at that address disclosed on examination DNA consistent with that of the deceased, Nguyen and Lim. Tran, in evidence, admitted being at 52 South Terrace on 3 May 2008 and to killing the deceased at those premises.
There was a body of evidence about the deceased’s movements on the night of 2 May and the early hours of 3 May 2008.
There was extensive evidence about “messaging traffic” between the mobile telephones of the deceased, Ly, Tran, Ngo, Nguyen and Lim. Evidence came from mobile carriers’ records. There was no dispute as to the linking of the mobile phones to the parties or to the accuracy of the record of contact set out in an exhibit that had been prepared to collate and summarise the primary records.
It was against the background of the above matters that the prosecution advanced its case that it had been proved beyond reasonable doubt that each defendant was party to a plan to kill or cause grievous bodily harm to the deceased and that it could be inferred that each defendant was not only party to the plan, but also played an active role in the implementation of the plan.
The evidence led by the prosecution against Ly may be summarised as follows. Sam Luong, the principal lessee of 52 South Terrace, offered Ly accommodation at that address. Ly accepted the offer. It was the prosecution case that Mr Luong went to collect rent from Ly at 52 South Terrace on the evening of 3 May 2008. Somontha Chea, gave evidence that he went with Ly to the premises and “dropped him” there on one occasion. Examination of a document found in the living room of the premises revealed fingerprints of Ly as well as those of Chea. Chea gave evidence that they took drugs at the premises. There was other evidence that Ngo, Tran and Tran’s brother, Andy, were also making use of the premises at or about this time.
It was the prosecution case that there were further connections between the crime scene at 52 South Terrace and Ly. Louis Miranda, the brother of the deceased gave evidence that the deceased left Louis Miranda’s home at 7:30 pm on 2 May 2008, telling him that he was going to see a friend named Chhay – who on the prosecution case was the appellant, Chhay Ly.
Shane Sydenham gave evidence that he was with the deceased in the early hours of 3 May 2008 and that the deceased left saying that he was going to get some “cutter”. It was common ground that cutter was an agent used in the preparation of drugs. Tran, when giving evidence, said that Ly had a buyer of cutter – who on the prosecution case was the deceased.
On the evening of 2 May 2008 and the early hours of 3 May 2008, extensive mobile telephone traffic took place between the deceased and some of the defendants, and between the defendants themselves. From as early as 5:07 pm on 2 May 2008, there was telephone contact between Tran and Ly and SMS contact between the deceased and Ly. From the early evening of 2 May through to the early hours of 3 May 2008, there was what the prosecution described as a constant stream of calls and SMS messages between Tran and Ly and between Ly and the deceased. On the prosecution case, the inference to be drawn was that Tran and Ly were manoeuvring the deceased to 52 South Terrace where the deceased arrived in the early hours of the morning of 3 May 2008. Tran in evidence said that the telephone traffic was related to drugs and cutter. It was the prosecution case that this may have been so, but that the proper inference to be drawn from the telephone and SMS traffic was that Tran and Ly were manoeuvring the deceased to the premises at 52 South Terrace for the purpose of inflicting really serious bodily harm on him.
Mary-May Tanilon gave evidence that she met Ly in 2006 through An Fuang Foo, Ly’s girlfriend. Tanilon obtained drugs from Ly and had seen him with cutter. On 2 May 2008, Tanilon had been at a party that concluded at about 4:00 am on 3 May 2008. When the party ended, Tanilon went to Foo’s house at Henley Beach. Tanilon was asked to stay by Foo. Tanilon gave evidence that Ly arrived at the Henley Beach house at about 8:00 am on 3 May 2008. She described Ly as “just off tap”, meaning that he was high on drugs. Ly was making noises and pacing about. Tanilon asked Ly whether there was anything wrong. At first, Ly did not reply and then said words to the effect that he had been at the “wrong place at the wrong time” and then added that he had been “seeing some bad shit”.

Maryann Phoneyiem, gave evidence that she had known Ly for about six years, having met at a hotel. Following that time, they regularly smoked heroin together. She said that they caught up every second day or so and that on an occasion some weeks after 3 May 2008, Ly told her that he had received a call from his girlfriend telling him that the CIB had come to his house looking for him. Some time later, Phoneyiem received messages from Ly in which Ly said that the CIB had come to the premises to arrest him, but he did not know what for. Ly spoke of kidnapping, said he was suspected of kidnapping, but claimed that he did not know anything about it. Phoneyiem said that according to Ly, the kidnapping was said to have occurred at a place where he used to live. Sometime later, Phoneyiem said she caught up with Ly at the Regency Tavern and on that occasion, Ly told her that they had found DNA and added something to the effect “they kidnapped him and just bashed him because he owed them money”.
The prosecution case was that the combined effect of the evidence of Tanilon and Phoneyiem was that Ly was present when the deceased was bashed, in particular referring to him having seen some bad shit and that his later conversations with Phoneyiem demonstrated knowledge of what had occurred. His statements to Phoneyiem confirmed his use of the premises at 52 South Terrace and his acknowledgement of his DNA being at those premises.
Ly called no evidence in his defence.
The prosecution case against Ngo was that there was a history of animosity between Ngo and the deceased. Thanh Nguyen, a prosecution witness, spoke of an earlier occasion when he observed Ngo hit the deceased.[5] Mark Keal had been present. The altercation took place outside a house where an argument ensued between the deceased and Ngo. Ngo said to the deceased “how come you talk shit about me”. Each then called the other a dog and Ngo slapped the deceased in the face. Nguyen gave evidence that after the altercation, the deceased drove off, undertook a U-turn and drove at a fairly high speed straight at Ngo.
[5] For convenience, in these reasons I shall refer to Thanh Nguyen by his full name and the defendant Nguyen by his surname.
When giving evidence, Ngo alluded to there being some animosity with the deceased. He claimed that drug dealing with the deceased ceased at the beginning of 2008. He acknowledged that this made him angry because he was not making as much money as usual. He admitted slapping the deceased and claimed that the deceased was talking “shit about me”. He said that the deceased was giving him a bad name as a drug dealer and that the talk was bad for business. He used the word “dog” because the deceased no longer bought drugs from him. On the prosecution case, there was bad blood between the men around the time of the death of the deceased.
Keal gave evidence that there had been drug taking on 2 May 2008 at Keal’s house during the afternoon and evening. The deceased came to the house for a short time in the evening and left at about 9:00 pm. Ngo arrived shortly after. Both Ngo and Keal were smoking heroin in the bedroom. According to Keal, Ngo asked him if he knew where the deceased was and then asked Keal if he could “set [the deceased] up”. Keal said that he declined to do so.
Keal gave evidence that, having overheard Ngo making a mobile telephone call, he sent a text to the deceased from the car park at McDonalds telling him not to come to McDonalds. Keal then sent a further text to the deceased saying that Ngo had set the deceased up. The deceased had responded with a text “come on, what you going to do about it”.
In the early hours of 3 May 2008, Keal arrived at McDonalds at Croydon. Keal and others including Ngo drove to McDonalds in three vehicles. Keal gave evidence that while in the car park at McDonalds he overheard a conversation between Ngo and another, saying “[the deceased] is here, come and get him”. Thanh Nguyen gave evidence that he was in the vehicle at the time that Ngo spoke on the mobile telephone. After the deceased arrived at McDonalds, Thanh Nguyen said that Ngo told him that he wanted to bash the deceased and asked him to go and speak to the deceased. Thanh Nguyen then said to Ngo “don’t do it here because there is surveillance cameras”.
It was the prosecution case that this evidence allowed the conclusion that Ngo was part of an arrangement to get hold of the deceased for the purpose of exacting violence upon him.
On 5 May 2008, Detective Jarred Karran, having been briefed about the disappearance of the deceased, went to see Ngo and seized a GPS unit from Ngo’s motor vehicle and Ngo’s mobile telephone. An examination of the GPS data revealed an entry, 52 South Terrace, with latitude and longitude coordinates. That was the address at Pooraka. The address was recorded as recent input data. An examination of the mobile telephone disclosed an image of the deceased bound, appearing senseless and apparently bleeding about the head and face. It is not possible to determine whether the deceased was dead or alive at the time that the image was taken.
On the prosecution case, this further material together with the evidence discussed above established that Ngo was part of a joint enterprise to lure the deceased to 52 South Terrace where he was to be tortured for the purpose of extracting financial details and information about the availability of money.
The telephone records established extensive telephone traffic between Ngo and Tran and between Ngo and Nguyen.
Ngo in evidence asserted that he had given his mobile telephone earlier in the morning of 3 May 2008 to a man called Julian Rapadas and that Rapadas or some other person took the photograph and later returned the mobile telephone to Ngo. Rapadas was not called as a witness at trial.
The prosecution case against Nguyen and Lim was that they were together at relevant times. Nguyen’s evidence was consistent with this. Lim did not give evidence.
The evidence established that Nguyen and Lim attempted to obtain money from the deceased’s accounts at Automatic Teller Machines at North Park Shopping Centre and Torrensville. This occurred at or about 5:30 am on 3 May 2008. They had the deceased’s bank cards and associated pin numbers to enable access to the Automatic Teller Machines. Attempts were made to access the deceased’s bank accounts, including an attempt to withdraw $200.00 from a Commonwealth Bank account and to withdraw two amounts of $500.00 from an Australian Central Credit Union card account. The attempts were unsuccessful.
According to Nguyen, he claimed further that he and Lim were sitting in a vehicle parked a short distance from 52 South Terrace when Tran brought the deceased’s bank cards to the vehicle and handed them to Lim.
The telephone records show that Tran was calling Nguyen between 12:30 am and 12:50 am on 3 May 2008. The next telephone contact between Tran and Nguyen was at 5:27 am at or about the time that Nguyen and Lim accessed the deceased’s bank accounts at North Park Shopping Centre. It was the prosecution case that Nguyen and Lim drove to Tran’s premises and picked Tran up a short period of time after 12:50 am and thereafter remained in his company for the next four hours or so.
The prosecution case was that Nguyen and Lim were present during the course of the infliction of serious bodily harm on the deceased. Five gloves were found by the police in a wheelie bin at 52 South Terrace. DNA evidence was found on two of those gloves. On the inner surface of the gloves, DNA profiles consistent with those of Nguyen and matching those of Lim were located. On the outer surface of one of the gloves, a mixed DNA profile was obtained - one consistent with the profile of the deceased and the other consistent with the profile of Lim.
In evidence, Nguyen gave an account that Tran had asked them to clean up the house and in particular to collect bloody syringes. No syringes were found by the police in their investigations.
In my opinion, the prosecution evidence against Ly would allow a properly instructed jury having regard to the totality of the evidence admissible against Ly to reach the conclusion that he was party to a plan to lure the deceased to 52 South Terrace 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 circumstantial evidence led against Ly together with implied admissions made by Ly to Tanilon and Phoneyiem, could allow a properly instructed jury to reach a verdict of guilty of murder or alternatively, of manslaughter.
In my opinion, the prosecution evidence against Ngo would allow a properly instructed jury to reach the conclusion that he was party to a plan to lure the deceased to 52 South Terrace 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. Accordingly, in my view, the prosecution evidence against Ngo would allow that jury to return a verdict of guilty of murder or alternatively, of manslaughter.
In my opinion, the prosecution evidence against Nguyen would allow a properly instructed jury to reach the conclusion that he was party to a plan to lure the deceased to 52 South Terrace 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. Accordingly, in my view, the prosecution evidence against Nguyen would allow that jury to return a verdict of guilty of manslaughter.
Manslaughter by an Unlawful and Dangerous Act
The Judge gave the following direction as to the alternative verdict of manslaughter:
There is, however, a further direction of law that I wish to give you. If it is proved beyond reasonable doubt that an accused person, one of the accused in this case, was part of an agreement not to cause grievous bodily harm but just to cause harm, just to hurt, but not to hurt grievously in the way that I have described, but nevertheless Mr Miranda died as a result of the accused’s implementation of that agreement just to cause harm, then the accused would be not guilty of murder but guilty of the lesser charge of manslaughter. The difference between that and murder is that if it is proved that an accused was part of an agreement to cause grievous bodily harm or to kill and actively implemented that agreement, he is guilty of murder, but if his state of mind was that he thought he was part of an agreement merely to cause harm, not grievous bodily harm, and as a result of that implementation of that agreement Mr Miranda died, he will be not guilty of murder but guilty of manslaughter.
So let me repeat that in short form. Looking at a particular accused, if it is proved beyond reasonable doubt that he was part of an agreement and actively implemented as part of that agreement and that agreement was to cause grievous bodily harm to the deceased and the accused’s state of mind was that he was part of that plan to cause grievous bodily harm, he is guilty of murder. If, however, there is a reasonable doubt as to the element as to whether the plan was to cause grievous bodily harm, but it is proved beyond reasonable doubt that the plan was to cause just harm, not grievous bodily harm, and he was part of that plan to do that and actively implemented his role and as a result of those actions the deceased died, he will be not guilty of murder but guilty of manslaughter. And, of course, if it is not proved beyond reasonable doubt that there was an agreement to cause either grievous bodily harm or to cause harm, ladies and gentlemen, of course, the accused will be not guilty of anything.
[Emphasis added.]
In Gillard,[6] the High Court had occasion to consider the decision of the trial Judge not to leave manslaughter as an alternative verdict when the appellant and co-accused faced the charge of murder. The Court concluded that manslaughter should have been left and appropriate directions given about the elements of that crime. Gleeson CJ and Callinan J observed:[7]
In our view, there was a viable case of manslaughter to be left to the jury, and the refusal to leave that case was a wrong decision on a question of law.
This raises the question of the proviso. Gilbert decides that it is not an answer to the appellant's argument to point out that, since the jury were properly (albeit conservatively) instructed on the elements of murder, and since they convicted the appellant of murder, there is, on that account alone, no miscarriage of justice. It is unnecessary to repeat the reasons for that. The jury were wrongly deprived of an opportunity to consider an intermediate position. The respondent sought to distinguish Gilbert on the following ground. One of the counts on which the jury convicted the appellant was one of attempted murder. In relation to that count, there was no intermediate possibility of manslaughter. That is so, but the distinction does not answer the problem to which Gilbert was addressed. If, in relation to the two counts of murder, the jury were (by hypothesis) not properly instructed in the law of culpable homicide, then that could have affected the outcome of the whole trial. Although the error related directly only to the first and second counts, once it is accepted that the nature of the error is such as to affect the verdicts on those two counts it is impossible to dismiss the possibility that it also affected the verdict on the third count.
The substantial question to be considered in relation to the proviso is that which was considered by the Court of Appeal of Queensland in Gilbert, and upon which that Court divided. It is whether a jury, properly instructed, would necessarily have returned a verdict of murder. The facts of Gilbert were, in a number of respects, similar to those of the present case. The accused drove the victim and a co-offender to a lonely place, where the co-offender bashed and killed the victim. The accused said that all he knew was that the co-offender intended to assault the victim. The accused was convicted of murder. It was agreed on all sides that the trial judge had erred in not leaving manslaughter to the jury. A majority in the Court of Appeal decided there was no miscarriage of justice because, having regard to his knowledge of the co-offender's violent propensities and the victim's physical weakness, a jury would inevitably have concluded that the accused foresaw that the co-offender would act with intent to cause grievous bodily harm. The dissentient disagreed, for factual reasons that are presently irrelevant, as did a majority in this Court.
In the present proceeding, it was appropriate for the alternative verdict of manslaughter to be left to the consideration of the jury.
[6] Gillard v The Queen (2003) 219 CLR 1.
[7] Gillard v The Queen (2003) 219 CLR 1, [26]-[28].
It is to be noted as a matter of concern that at trial no objection or complaint was made by counsel for any party about this direction. The Judge specifically invited the parties to consider the terms of his directions on the law and their adequacy. Counsel for each party, including senior counsel, informed the Judge that they had no concern with the adequacy of the directions.
On appeal each of the appellants complained, however, that this direction was a misdirection. It was said that an element of joint enterprise manslaughter by unlawful and dangerous act, is that the degree of harm agreed to be inflicted was such that it exposed the deceased to an appreciable risk of serious injury, and that to participate in a joint enterprise merely to cause harm was insufficient. In short, it was complained that the prosecution had to prove beyond reasonable doubt more than an agreement to cause harm.
In Wilson,[8] Mason CJ, Toohey, Gaudron and McHugh JJ following an extensive review of earlier decisions restated the elements of manslaughter by unlawful and dangerous act. The act causing death must be both unlawful and dangerous in the sense that it carries with it an appreciable risk of serious injury. Their Honours observed:[9]
Manslaughter by an unlawful and dangerous act … is a relevant and appropriate category of manslaughter. Manslaughter by the intentional infliction of some harm answers neither description. It continues the rigour of the early common law and ought to play no part in contemporary law. This approach leaves two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury and manslaughter by criminal negligence. There have been suggestions that these two categories should be replaced by one. But, as the law stands, there are differences between them. In the case of manslaughter by criminal negligence, it is unnecessary to prove that the accused's act was unlawful. And the tests of dangerousness are different. An appreciable risk of serious injury is required in the case of manslaughter by an unlawful and dangerous act. For manslaughter by criminal negligence, the test is "a high risk that death or grievous bodily harm would follow". As the question of criminal negligence was not relied on in the present appeal, we need say no more as to the appropriateness of the distinctions that presently exist between this category of manslaughter and manslaughter by an unlawful and dangerous act.
[Emphasis added. Footnotes omitted.]
[8] R v Wilson (1992) 174 CLR 313.
[9] R v Wilson (1992) 174 CLR 313, 333. This test has been reaffirmed by the High Court in R v Gillard (2004) 219 CLR 1, [12] and in Carroll v The Queen (2009) 83 ALJR 579, [21]. A recent application of these principles by this Court is in the decision of R v Fragomeli [2008] SASC 96, [1], [51], [86].
The Judge’s direction that an agreement to cause harm would be sufficient to satisfy the requirement of “dangerous” was a material misdirection. As earlier mentioned, the Director accepted that there had been a misdirection and accepted that there was no room for the application of the proviso. In the Director’s submission, the appellants Ly and Ngo should be remitted for retrial on the charge of murder and the appellant Nguyen should be remitted for retrial on the charge of manslaughter.
In the case of the appellants Ly and Ngo the jury did not have adequate directions on the law to enable them to consider the alternative verdict of manslaughter. The jury may have considered that this was a case where the relevant intent was to perform an unlawful and dangerous act and thereby give rise to the risk of serious injury. The Judge’s directions precluded the jury from properly considering the alternative verdict of manslaughter. In the case of Nguyen there is a risk of a miscarriage of justice in that the jury may have proceeded to convict of the crime of manslaughter on an erroneous basis.
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.
ANDERSON J. 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.
PEEK 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
In my view the case against the appellant Ly (hereafter “Ly”) was much weaker than the cases against the other accused. Senior counsel for Ly submits that there is no clear evidence of any participation by him in the plan postulated by the prosecution and specifically there is:
·no evidence of any ill will by him toward the deceased;
·no evidence of any motive to harm, let alone murder, the deceased;
·no evidence of any DNA or any other forensic evidence linking Ly to the shed, or to the gloves or to any item concerned with the murder (in contradistinction with the position of the other appellants);
·no evidence of presence by him at the scene of the crime before, during, or after the commission of the crime;
·no evidence of any participation by him in the later attempted theft of funds from the deceased’s bank accounts;
·no evidence of any assistance by him in the disposal of the body of the deceased or the disposal of his vehicle;
·no evidence given by any of the accused who gave evidence (Tran, Nguyen and Ngo) that Ly was ever present at the scene of the crime; and
·positive evidence by Tran that Ly was in no way part of any plan.[10]
[10] T1783.
On my understanding, the following heads of evidence were relied upon by the prosecution against Ly.
The group with which Ly was associated
The first head of evidence was that Ly knew, and mixed with, a number of persons, including but not limited to, the deceased, the co-accused and various other persons who, to a greater or lesser extent, were involved in supplying and/or using illicit drugs. This general proposition is not disputed by Ly but it takes the prosecution little distance.
The connection between Ly and 52 South Terrace, Pooraka
The second head of evidence was that there was a connection between Ly and what is asserted to be the scene of the murder, 52 South Terrace, Pooraka (“52 South Terrace”). The evidence was that a Mr Luong (himself an illicit drug user) was the tenant of 52 South Terrace and had offered Ly accommodation there about a fortnight prior to the asserted date of the murder, 3 May, 2008. However, there is little evidence as to how often Ly was at those premises; he can be shown to have been there at least once in the period leading up to 3 May 2008 through the evidence of Smotha Chai who stated that he and Ly had together ingested some drugs there. Chai’s evidence is supported by the finding of both his and Ly’s fingerprints on a document later found in the living room.
Senior counsel for Ly makes the valid point that these premises were used in an informal way by a number of persons in the drug taking milieu and, while her description “doss house” may be colourful, it is probably not far wide of the mark. I observe that Gray J correctly notes in his reasons that “Ngo, Tran and Tran’s brother, Andy, were also making use of the premises at or about this time.” Indeed, when Luong came around to collect rent, he found Tran and Tran’s brother apparently living there and Ly was absent[11]. Importantly, when the owner of the premises, one Vong Nguyen, attended on the night of 3 May and again at 12 noon on the following day, Sunday 4 May 2008, he found Tran there and again Ly was absent. Vong Nguyen and Tran entered into discussion about Tran renting the premises and Tran produced his driving licence to Vong.
[11] T1263, 1264.
In these circumstances, it seems to me that if murder did take place at 52 South Terrace, the above material as to Ly’s connection with the premises provides very little evidence that he was actually involved in the murder.
Mobile telephone traffic
The third head of evidence was comprised by mobile telephone traffic. Clearly, there was a constant stream of telephone traffic on 3-4 May 2008 between various persons of interest, including Ly. However, as Gray J correctly notes, the prosecution do not disagree with the proposition that such telephone traffic likely concerned drugs and the availability of cutting material.[12] The prosecution, of course, suggest that the existence of these conversations may demonstrate that Ly was taking part in a plan with others to “lure” the deceased to 52 South Terrace, but it could equally be suggested that Ly was used as a dupe or otherwise lacked the required mental intent for an offence of homicide. Really, either hypothesis is as speculative as the other.
[12] The word “cutter” is used by various witnesses as meaning “cutting” material, or more formally, a substance used to add bulk to drugs, at the same time diluting the degree of purity.
Statements by the deceased as to his intended movements
The fourth head of evidence was comprised by two statements made by the deceased shortly before his death as to his intended movements. The first was made by the deceased to his brother, Louis Miranda, at about 7.30pm on 2 May 2008 stating that he was going to meet a friend, Chhay, this being the first name of Ly. The second statement, made by the deceased in the early hours of 3 May 2008 to Shane Synom, was to the effect that he was going to get some “cutter”. The prosecution cases was that these statements, taken with the evidence of the co-accused Tran that Ly had a buyer of “cutter”, pointed to an intention to meet with Ly. The position of Ly is that this may well be the case – but such a proposed transaction was entirely commonplace in this circle of drug dealers and in no way pointed to participation by Ly in a plan to murder.
Ly’s statement to Mary-May Tanilon
The fifth head of evidence was comprised by Mary-May Tanilon’s evidence that Ly stated to her at about 8am on 3 May 2008, at a time when he was affected by drugs, that he had been “at the wrong place at the wrong time” and “something about seeing some bad shit”:[13]
[13] T1174-1175.
A:He just said something along the lines of that he was at the wrong place at the wrong time.
Q: Did he say whether he had seen anything?
A: Yeah. Maybe - yeah, he said something about seeing some bad shit.
…
Q:Did the conversation turn to the topic of what had been said earlier about seeing bad shit and being in the wrong place at the wrong time?
A:No, that was like - he didn’t say anything more. We just talked about the drugs, you know, if it was good or not, like - yeah.
It is to be noted that Ms Tanilon agreed in cross-examination that she was also affected by drugs at the time of the statement. The full context and precise wording of the conversation or statement simply cannot be known.
It is worth while stating the obvious here: while it is possible that Ly was referring to the subject murder, the very purpose of the evidence was to prove his participation therein. While it is accepted that each item of circumstantial evidence is to be taken with the rest of the evidence and no one item is to be expected to be capable of proving the case alone, one must also guard against circularity of reasoning and a temptation to assume the very thing sought to be proven.
It must also be recognised that the ramblings of a person high on drugs about seeing “bad shit” at some unspecified time and location as later recalled by another person, also high on drugs at the relevant time, is not particularly compelling evidence. If the comment were to be taken to refer to the topic of the deceased’s murder, it could just as easily refer to coming upon the scene after rather than before the death. But, most importantly, the very content of the reported comments – “wrong place at the wrong time” and “seen” are redolent of mere accidental observation of something and inconsistent with any admission of purposive involvement; the comments are in fact exculpatory rather than constituting any admission of involvement in a crime.
Ly’s statements to Maryann Phoneyiem
The sixth head of evidence was comprised by Maryann Phoneyiem’s evidence that Ly made a number of comments to her on several successive occasions, the first being some weeks after 3 May 2008, concerning relevant matters. Ms Phoneyiem was a heroin user and she and Ly were regularly using heroin together during this period; it was in this context that various communications occurred. The first communication was recounted as follows:
Q:Was there an occasion when you were with Mr Chhay Ly when the topic of the CIB came up?
A:Yes, I was with him. He got a phone call from his girlfriend, and she had told him that CIB have come into the house looking for him but she didn’t know what reason.
Q:    Where were you when that happened?
A:    I think we were in the car.
Q:    How long were you with him after he told you that?
A:Not long because he had to go. He was in a hurry to go back and find out why the CIBs were there.
Q:    Did you drop him somewhere after you had this conversation with him?
A:    Yes.
Q:    Where did you drop him?
A:    I’m pretty sure it was back at the house, in Henley Beach.
The second communication was said to have consisted of text messages:
Q:After you dropped him off there, was there a period of time when you exchanged text messages with him?
A:    Yeah, he will message me back and forth.
Q:    Did the topic of arrest come up?
A:He said that he was - the CIBs were there to arrest him but he didn’t know what for yet.
Q:In addition to texting him during this period, did you also speak with him on the phone?
A:No, I don’t think there was any phone calls. It was just sending messages back and forth.
Q:    Was there anything mentioned about kidnapping?
A:    No, not at that time.
The third communication consisted of a meeting about two weeks after the first communication:
Q:    Did the topic of kidnapping come up at a later stage?
A:    Yes, when we caught up next time, when I picked him up again.
Q:    Sorry?
A:    When I picked him up the next time.
Q:    How long after the last occasion was that?
A:    A couple of weeks.
Q:    What was said on the topic of kidnapping?
A:He told me that the CIBs were there to arrest him because he was a suspect for a kidnapping which he didn’t know about.
Q:    Did he say where this so-called kidnapping was said to have taken place?
A:    At a house at Arndale or somewhere like that. I’m not too sure of the location.
Q:    Did he say whether he had any connection to the house or not?
A:    He used to live there.
Q:    Did he say anything about what the kidnapping was about?
A:    Not at the start. He didn’t tell me much because he didn’t know himself.
The fourth communication consisted of a later meeting at the Regency Tavern:
Q:    Did you see him later at the Regency Tavern?
A:    I think so.
Q:    What did you do there?
A:    We played pokies for a bit and done what we usually do, just catch up and smoke.
Q:Did the topic of the kidnapping come up during the course of this occasion that you were with him?
A:Yes. He said that he found out more information. It was about a kidnapping that he knew about, and it was taking place at that house, but he doesn't know why he is getting arrested, but he got told that he - they found his DNA there and -
Q:    Sorry, I didn’t hear that.
A:He got told from the police that they found his DNA at the house. That’s why he is a suspect.
Q:Was there any mention of violence during the course of this conversation, did he say anything about that?
A:He said that they kidnapped - he didn’t say himself, he said ‘they’, I don’t know who he means by ‘they’ - but he said they kidnapped him and just bashed him because he owed them money or something like that.
In my view, a fair reading of this evidence discloses no more than the making of comments on several occasions by Ly – disjointed and under the influence of heroin - as to what he was learning from various sources as time went on in relation to what had occurred in his absence.
The accuracy and reliability of the reporting of such comments is none the better for being later recounted by a person also under the influence of heroin at the relevant time. But even with such disadvantages, it can be still be clearly seen that Ly positively states more than once that he was in the dark as to what had supposedly happened; in other words, at a time close to the event, he positively eschews personal observation. In so far as his later remarks are suggested by the prosecution to display esoteric knowledge, it is important that they be taken in proper context; it is clear that they do not purport to be based on direct knowledge but rather constitute progressive reports as to what he has heard from others since the previous conversation. It is completely understandable that, if he were innocent of the charge against him, he would have been speaking to a wide range of people to obtain as much knowledge about the situation as soon as possible; such sources would likely include, directly or indirectly, persons who had been present or persons who had spoken to such persons. I consider that it is quite clear that these statements, taken individually or cumulatively, are simply not capable of constituting safe evidence of esoteric knowledge on the part of Ly.
The present case has certain parallels with the decision in R v Khalil.[14]There the appellant was being tried on a charge of breaking, entering and stealing three rifles and evidence was led of portion of a conversation with prison warders during which he apparently made a damaging admission. However, a real question of whether he was then speaking seriously was raised if one had regard to his words in a different part of the conversation relating to a quite different pending charge which was not before the jury. Having failed on a voir dire application to exclude the evidence, counsel for the appellant elected not to cross-examine so as to bring out the further conversation which would have raised the possibility of overall jocularity but also would have had the disadvantageous effect of exposing the further serious charge. The conviction was set aside on the basis of error by the trial Judge in declining to exclude the evidence. Of present relevance, O’Lachlan J stated:[15]
There is no doubt that where a confession is equivocal, the court may quash a conviction founded solely thereon: S L Phipson, The Law of Evidence (13th ed, 1982), p 449; R v Barker (1915) 11 Cr App R 191; R v Smith (1979) 5 Crim LJ 161. I have already quoted the evidence of Officers Standish and Moore and if, in every sense, they accurately reproduced the words spoken by the appellant, then there is, of course, no room for ambiguity. He did not, in answer to the question, say that “the police say that I stole three machine guns”. According to their evidence he clearly and unambiguously said words to the effect “I stole three machine guns”, adding that the police had recovered two. But the evidence of Standish and Moore that I have thus far quoted or referred to does not tell the full story. The full story can only be gleaned by having regard to their evidence in the voir dire examination, for that discloses that the conversation relating to the machine guns was part only of a larger conversation between the officers and the appellant. Indeed it would seem that the appellant was in custody, not only in respect of the charges that are the subject of this appeal but also in respect of a charge of robbing a jewellery store; naturally no reference to this other charge was made before the jury. In the voir dire evidence, however, Standish explained that when he asked Khalil “What are you in for”, the reply was: “They reckon I robbed a jewellery store.” Standish commented “They reckon” and according to him Khalil replied: “Yeah, they got twenty-four witnesses but they are all liars.” Standish retorted “Twenty-four liars?” and to this Khalil said: “They said they saw my face. How could they, I had a balaclava.” … Standish, in cross-examination, conceded that: “I found it extremely funny, we all did.” …
[14] (1987) 44 SASR 23.
[15] (1987) 44 SASR 23, 37-38.
Similarly, Johnston J stated:[16]
… The conversation was not reported at the time and no notes were made of it. This of course does not prevent the reception of the evidence. But in this particular case it is the precise form of the words which is important. The evidence was that the accused said: “I steal three machine guns, the police got two, I’ve still got one.” If the words were preceded by “The police say” or “they say” or even “say” the words are quite without significance. Gestures, tone of voice could possibly indicate that it is the allegation that is referred to, not the fact. There was no reason for the officers to remember or to attempt to remember with total accuracy. …
[16] (1987) 44 SASR 23, 28.
In the present case, it is not a matter of jocularity that is in question but rather whether Ly was simply reporting information he had obtained from various sources after the event rather than through contemporaneous personal observation.
It should go without saying that a young lady under the influence of heroin is not going to remember the conversation “with total accuracy”. But, fortunately for the appellant, she does report several instances where the appellant did explicitly make it clear that he was referring to second hand information. In my view, it is impossible to sever the final snippet of the reported conversation - “He said that they kidnapped - he didn’t say himself, he said ‘they’, I don’t know who he means by ‘they’ – but he said they kidnapped him and just bashed him because he owed them money or something like that” - from what precedes it, namely the repeated statements that what he was recounting was based on information later conveyed to him rather than contemporaneously observed by him.

That so called evidence of “esoteric knowledge” must be treated with great caution was emphasised in The Queen v HS[17] where Duggan J stated:
In my view, the fact that the appellant was not circumcised and the complainant gave evidence to that effect, could not be considered as relevant esoteric knowledge. Apart from the unremarkable nature of this feature, it was a clear possibility on the evidence that the complainant had the opportunity to acquire this knowledge in a non-sexual setting, namely, when they attended the toilet together. The trial judge did not refer to that possibility in her reasons for decision.
As for the condition of the appellant’s foreskin, Besanko J has drawn attention to the consideration that the evidence does not exclude the possibility that any restriction in drawing the foreskin back over the head of the appellant’s penis could have been observed when the appellant was urinating and that this may have been seen by the complainant. The evidence does not exclude the possibility that the restriction was evident when the penis was flaccid as well as erect.
Finally, there is a lack of specificity about the evidence on this topic which renders it unsuitable as a basis from which to infer esoteric knowledge. It is necessary to refer to some of that evidence.
[17] (2004) 90 SASR 28, [21]-[23].
His Honour examined the evidence and concluded:[18]
In my view, this evidence lacked the particularity and probative force required to establish a level of esoteric knowledge which would justify the importance which the trial judge accorded to it.
[18] (2004) 90 SASR 28, [28].
In my view his Honour’s words apply a fortiori in the present case where, in my view, the overall content of the conversations and the surrounding circumstances deprived the particular passages sought to be relied upon by the prosecution of any real probative force.
Unsafe/unreasonable verdict?
As to the correct approach to the question of whether the verdict was unreasonable or unsafe and unsatisfactory, I take as authoritative, as does Gray J, the following passage in the joint judgment of Hayne, Heydon, Crennan, Kiefel and Bell JJ) in R v Nguyen:[19]
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.
(Emphasis added)
[19] [2010] 85 ALJR 8, 14.
The case against Ly was virtually entirely, if not entirely, based upon circumstantial evidence; the conviction cannot be said to be based upon judgments made by a jury as to the credibility of witnesses giving direct evidence against Ly. Ly himself did not give evidence. There is little, if any, advantage held by the jury over this Court in the present situation.
It appears that the evidence of statements made by Ly to Ms Tanilon and Ms Phoneyiem were stressed and heavily relied upon by the prosecution at trial but it is my view, for the reasons I have given, that such evidence had significant inadequacies and lacked probative force.
Looking closely at all of the heads of evidence against Ly both singly and cumulatively, I accept that there are circumstances of suspicion, but such suspicion falls far short of the requisite level of proof of a charge of murder. I consider that there are reasonable possibilities consistent with innocence that simply cannot be excluded on the available evidence. In my view, there is, at the very least, a significant possibility that he is not guilty of the charge of murder.
Adopting the test in M v The Queen[20] appearing in emphasis above, I consider for the reasons I have given, that the evidence against Ly displays inadequacies and is tainted or otherwise lacks probative force in such a way as to lead (to the conclusion) that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted.
[20] (1994) 181 CLR 487, 494-495.
I consider that ground 9 of Ly’s appeal (unsafe/unreasonable verdict) is made out. Accordingly, I would favour an order that a judgment and verdict of acquittal be entered on his appeal.