R v Ngo - [2012] SASCFC 125

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v NGO
[2012] SASCFC 125
Judgment of The Court of Criminal Appeal
(The Honourable Justice Sulan, The Honourable Justice Vanstone and The Honourable Justice White)
15 November 2012
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PRESENTATION OF DEFENCE CASE
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE
Appeal against conviction - appellant found guilty of murder - Crown case was that the appellant was party to a joint enterprise to kill or do grievous bodily harm to the deceased - defence case that the appellant left the scene of the killing while the deceased was still alive - whether the trial Judge erred by failing to adequately direct the jury on the significance of the appellant's departure - whether the verdict was unsafe and unsatisfactory and not supported by the evidence.
Held: Appeal dismissed - the trial Judge adequately summarised the defence case - the trial Judge's directions made it clear the jury had to be satisfied beyond reasonable doubt that the appellant was a party to an agreement to kill or do grievous bodily harm, and that the appellant participated in that agreement - there was evidence at trial capable of supporting the Crown case and from which a reasonable jury could exclude all hypotheses other than that the appellant was a party to an agreement to kill or do grievous bodily harm - from the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty or murder.
Chidiac v The Queen (1991) 171 CLR 432; M v The Queen (1994) 181 CLR 487; Doney v The Queen (1990) 171 CLR 207; Butler v The Queen [2011] VSCA 417; R v Nguyen (2010) 242 CLR 291, considered.

R v NGO
[2012] SASCFC 125
Court of Criminal Appeal: Sulan, Vanstone and White JJ

SULAN J: On 6 July 2012, the appellant, Jean Ngo, was convicted by a jury of the murder of Paulo Jorge Miranda (Miranda), between 3 and 7 May 2008. The appellant appeals against the conviction. It was alleged by the prosecution that he participated in a joint enterprise to murder Mr Miranda.
The grounds of appeal are, first, that the Judge failed to adequately direct the jury that the appellant’s departure from the scene of the killing, prior to the deceased being killed, was evidence from which the jury could have a reasonable doubt, that the appellant had been a party to the joint enterprise as alleged by the prosecution. Secondly, that in the circumstances of the case, the verdict of murder is unsafe and unsatisfactory, and not supported by the evidence.
Background
On 31 March 2011, the appellant was convicted of murder by a jury. At that trial, it had been alleged that the appellant, together with Chhay Ly (Ly), Huan Hoang…

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 Ngo

Details

AGLC: R v Ngo [2012] SASCFC 125
Case: [2012] SASCFC 125
Decision Date: 15 November 2012

CaseChat Overview and Summary

The appeal concerned a conviction for murder, with the Crown alleging the appellant was part of a joint enterprise to kill or cause grievous bodily harm to the deceased. The appellant's defence was that he left the scene of the killing while the deceased was still alive. The appeal was heard by Sulan, Vanstone and White JJ of the Court of Criminal Appeal.

The legal issues before the court were whether the trial judge had erred by failing to adequately direct the jury on the significance of the appellant's departure from the scene, and whether the jury's verdict was unsafe and unsatisfactory, and not supported by the evidence.

The Court of Criminal Appeal dismissed the appeal, finding that the trial judge had adequately summarised the defence case. The directions given to the jury were considered sufficient to make it clear that they had to be satisfied beyond reasonable doubt that the appellant was a party to an agreement to kill or do grievous bodily harm, and that he participated in that agreement. The court held that there was evidence capable of supporting the Crown's case, from which a reasonable jury could exclude all hypotheses other than the appellant being a party to such an agreement. Therefore, it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt.

Orders

Orders of the court

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Background

Background to the litigation

The grounds of appeal are, first, that the Judge failed to adequately direct the jury that the appellant’s departure from the scene of the killing, prior to the deceased being killed, was evidence from which the jury could have a reasonable doubt, that the appellant had been a party to the joint enterprise as alleged by the prosecution. Secondly, that in the circumstances of the case, the verdict of murder is unsafe and unsatisfactory, and not supported by the evidence. Background On 31 March 2011, the appellant was convicted of murder by a jury. At that trial, it had been alleged that the appellant, together with Chhay Ly (Ly), Huan Hoang Lam Nguyen (Nguyen), Ngoc Thai Tran (Tran, also known as ‘Leon’) and Phillips Lim (Lim), murdered Miranda. Ly, Ngo (the appellant) and Tran were convicted of murder. Nguyen and Lim were acquitted of murder, but were convicted of manslaughter. Ly, Ngo and Nguyen appealed their conviction. Tran and Lim did not appeal. On 11 November 2011, the Court of Criminal Appeal allowed the appeals and set aside the verdicts in each case and ordered a retrial. The appellant and Nguyen were retried before a Judge and jury. The appellant was charged with murder and Nguyen was charged with manslaughter. On 6 July 2012, both the appellant and Nguyen were convicted as charged. The prosecution case At the retrial, there was no dispute that the deceased, Miranda, disappeared on or about 3 May 2008. His body has never been found. The evidence at the trial established that the deceased was known to the appellant and to others, who it is alleged were present with the deceased shortly before he disappeared. The case against the appellant was circumstantial. Evidence at the trial established that there had been animosity between the appellant and the deceased some months prior to the deceased’s disappearance. The appellant had been supplying drugs to the deceased, but the deceased had stopped dealing with the appellant and had been purchasing drugs from another person. The appellant was angry about the loss of his customer. There was evidence that the deceased was alive between 2 and 3 am on the morning of 3 May 2008 when he visited an acquaintance at Findon. It was not disputed that, at about 4 am that morning, the deceased was at 52 South Terrace, Pooraka, where Ly resided. At the retrial, the appellant did not dispute that he was present at the South Terrace property at about 4 am when the deceased was there. When police were investigating the disappearance of the deceased, they seized the appellant’s mobile telephone on which there was a photograph of the deceased showing him tied up and blindfolded. The deceased had injuries in the vicinity of his eyes and nose. There was blood dripping from his face. The photograph, which had been taken at 4.08 am on 3 May 2008, was of the deceased in a bedroom in the house at South Terrace. When police conducted a search and inspection of the property at 52 South Terrace, Pooraka, they observed a large quantity of blood in an outside shed. DNA evidence established that some of the blood was that of the deceased.

Evidence

Evidence Before The Court

I reject the first ground of appeal.The verdict of the jury was unsafe and unsatisfactory and not supported by the evidence Counsel for the appellant submits that the appellant’s departure from the scene, after having taken the photograph, gives rise to a reasonable possibility that, if he were party to a plan or agreement, then that plan or agreement was to do no more than that which was achieved at the point of his departure. That is, to do harm to Mr Miranda, not to do grievous bodily harm or to kill him. It is submitted that the evidence supports the hypothesis that the appellant had left the scene prior to Mr Miranda’s death, which is consistent with him having been a party only to an agreement to do harm to Mr Miranda, but not to do grievous bodily harm. Counsel submits that a jury could not have been satisfied beyond reasonable doubt of the appellant’s participation in a plan or agreement to kill or do Mr Miranda grievous bodily harm. The question for this Court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of the offence of murder.[1] In Chidiac, Mason CJ said:[2]... In deciding whether a verdict should be set aside as unsafe or unsatisfactory, the question for the appellate court to determine is whether the jury, acting reasonably, must have entertained a reasonable doubt as to the guilt of the accused. Or, to put it another way, it is for the court to decide whether, on the relevant evidence, it was open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt. The appellate court does not discharge its responsibility by finding that there was evidence sufficient to entitle the jury to convict because a verdict may be unsafe or unsatisfactory when there is a sufficiency of evidence for that purpose. [Citations omitted][1] Chidiac v The Queen (1991) 171 CLR 432.[2] (1991) 171 CLR 432, 443. McHugh J said:[3]... But in exercising its jurisdiction to set aside a conviction on the ground that it is unsafe or unsatisfactory, the Court must itself examine the nature and quality of the evidence for the purpose of determining whether a hypothetical reasonable jury would have accepted sufficient of the evidence to be satisfied beyond reasonable doubt of the guilt of the accused....... If that Court concludes that no reasonable jury would have convicted the accused on the evidence, then its duty is to allow the appeal whatever the nature of the evidence relied upon to support the conviction.[3] (1991) 171 CLR 432, 461-463. In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ said:[4]Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a Court of Criminal Appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the 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. 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.[Citations omitted][4] (1994) 181 CLR 487, 493.

Decision

Reasons for decision

WHITE J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

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