R v Ly, Nguyen and Ngo

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.