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 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.
There was evidence that, shortly after midnight on 2 May, the appellant was at a car park at a McDonald’s restaurant at Croydon. There was a group of people in the car park, all known to each other. The deceased arrived in his car at about 12.41 am.
After the deceased arrived, the appellant made a telephone call during which it was alleged by the prosecution that he spoke to someone and said, “Paul is here, come and get him”. When he gave evidence at his first trial, the appellant admitted calling Tran. His account of the conversation, which was read to the jury at the retrial, was:
QWhat did you think when you saw Paul arrive there.
AI panicked a little bit.
QWhy was that.
ABecause I heard he was travel around with a shotgun, because of what happened a couple of months ago when I slapped him, that’s why I panicked.
QWhen you panicked what did you do.
AI called Leon (the man known as Tran).
HIS HONOUR
QYou panicked because you thought Mr Miranda had a shotgun; is that right.
AYes, I thought he was there to set me up, pretty much.
QSo you thought when he came he had a shotgun with him then.
AYeah.
...
QWhy did you ring Leon.
AJust called him as a back up.
QWhat did you say to Leon.
AI said - I was speaking in Vietnamese and I said, ‘I think the white guy’s here and he’s going to set me up’.
There was evidence from a witness, Mark Keal. Keal was a friend of the deceased. Keal also knew the appellant, who was a former school friend. About two to three weeks before 3 May, Keal had heard Tran say that the deceased owed him, Tran, $40,000 and if the deceased did not pay it back something was going to happen to him. Tran offered Keal $5000 to set up Miranda.
Keal gave evidence that on 2 May he had been with the appellant at Samnang Tom’s house, when the appellant was asked by him if he and Thanh Van Nguyen could set up the deceased. Keal refused. Keal’s evidence was disputed. Thanh did not support Keal’s account.
Keal said that there were others at the house. They all went to McDonald’s. Keal was in one car with another person. The appellant and Thanh Van Nguyen were in the appellant’s car, and there were others in a third car. Thanh Van Nguyen, who was in the appellant’s car, gave evidence that he saw the deceased in his silver Toyota motor vehicle arrive some time after the three cars had arrived. He gave evidence that he heard the appellant say, “That’s Paul”. Thanh Van Nguyen did not recall what else was said. He confirmed that the appellant also made a telephone call to his girlfriend. He did not hear the appellant refer to the deceased in any telephone call whilst he and the appellant were in the car together at McDonald’s. Thanh Van Nguyen saw the deceased leave. He then left the appellant’s car and joined other people who were in the car park.
The appellant’s girlfriend, Melissa Proom, gave evidence. She shared a house with the appellant at Mansfield Park. She recalled on one occasion that the deceased came to the house. She knew that there was tension between the deceased and the appellant. The appellant had told her that Miranda had moved his business from the appellant to Tran, which had caused a problem between them. She said that there was also some enmity between the appellant and Tran, but they had become friends again about three weeks prior to the deceased’s disappearance.
On 2 May 2008, she visited her mother at Strathalbyn. She received a telephone call from the appellant at about midnight. He told her that he was at McDonald’s. He told her that he wanted money for drugs. She left Strathalbyn and arrived at Mansfield Park at about 4 am. Shortly thereafter, within minutes, the appellant arrived. He showed her the photograph of the deceased taken on his telephone. The deceased had tape across his face and blood dripping from a head wound. The appellant told her that he had had a fight with the deceased, and had hit him a couple of times. He said that the other boys still had the deceased.
Tran had a brother known as Andy. The appellant told Ms Proom that he wanted to visit Andy to “talk about it”. According to Ms Proom, the appellant had said to her that Tran had told him that Andy knew about what was happening, and that they wanted to get the money from Miranda. She said that when the appellant spoke to Andy, Andy appeared to know nothing about it. Ms Proom was concerned that the appellant might be charged with kidnapping, so she attempted to convince him and Andy to go to get the deceased and talk to him to convince him not to report what had happened to the police. She then left the room for a moment. When she returned, the appellant and Andy told her that they had received a telephone call and were informed that the deceased had died that day. The appellant told her that the deceased was alive when he last had seen him.
At the appellant’s first trial, he denied being present at South Terrace at any time the night that it is alleged that Miranda was being held at South Terrace. He gave evidence that another person had his telephone that evening, that it was only returned to him later, and that he had not taken the photograph. That was not his case, as presented at the second trial. He did not deny having been present and having taken the photograph. He had written a letter from prison to Ms Proom, after he had seen her witness statement. In the statement, she stated that he had come back to their home shortly after 4.00 am and shown her the photograph which he told her he had taken. He had admitted to her that he had seen the deceased and hit him a couple of times. In the letter, he advised Ms Proom that her account of events was accurate.
The prosecution case was that when the photograph was taken, the deceased was alive. The photograph showed the deceased blindfolded. He was covered with a sheet. The photograph showed that the deceased was bleeding from a wound to the right side of his head. The prosecution alleged that the appellant was present and took that photograph on his mobile telephone. It was not disputed that the photograph had been taken at 4.08 am on 3 May 2008.
In cross-examination, Ms Proom said:
ABefore he showed me the photo, he said that he had seen Paul and that – they had seen him and they had had a fight between them and then the photo came out and I just like, I didn’t think anything of it because, you know, there was a lot of fights between people back then and what’s another fight? And then when I saw the photo, I thought ‘Well yeah that’s a bit more than a fight’.
The evidence of Ms Proom put a lie to the appellant’s evidence at the first trial. The appellant did not dispute her evidence.
Vong Nguyen was the owner of the house at 52 South Terrace, Pooraka. He and his brother-in-law went to the house on 3 May 2008 because he had been told that two young men were residing there. Mr Nguyen had rented the house to a husband and wife. Mr Nguyen spoke to a young man who advised him that the tenant had permitted the young man to stay there for a week. Mr Nguyen returned the following day and spoke to a person who identified himself as Tran.
Van Khanh Nguyen, Vong Nguyen’s brother-in-law, gave evidence that he was at the house on 3 May 2008. He entered the shed and observed a small silver sedan parked there. The deceased had been driving a silver Toyota Corolla when he was seen at McDonald’s restaurant earlier in the evening. There was evidence that Tran (Leon) organised the removal and burning of a silver Toyota. The witness who arranged for the car to be burnt assumed it was for an insurance claim. There was evidence that the car was taken to Port Parham and burnt.
There was evidence led by the prosecution of telephone communications between Tran’s telephone and the appellant’s telephone on the evening of 2 May and in the early hours of 3 May 2008. There was also evidence that the GPS unit from the appellant’s car showed that he had been at the house at 52 South Terrace.
The appellant did not give evidence at the trial.
The case against the appellant was that he was part of a joint enterprise to inflict really serious bodily harm, or death, on the deceased and, whether he was present or not at the time the deceased was killed, he was a party to an agreement to lure the deceased to South Terrace, Pooraka. The prosecution case was that he was present when the deceased was assaulted and he participated in the joint enterprise, knowing the purpose was to kill or inflict grievous bodily harm upon the deceased.
The defence case
The defence case was that the prosecution had failed to prove an agreement to kill or do really serious bodily injury to the deceased. Further, that it failed to prove that the appellant was party to an agreement. It was submitted that the evidence relied upon by the prosecution did not establish an agreement to lure the deceased to South Terrace.
The defence case was that the appellant had left the premises at South Terrace at about 4.08 am, or thereabouts, just after the photograph had been taken, and that when he left, the deceased was still alive. The case for the defence was that the jury should have a reasonable doubt that the appellant participated in any agreement to kill or do grievous bodily harm to the deceased, and that his departure at 4.08 am, or thereabouts, was compelling evidence to which they the jury should have regard in arriving at that conclusion.
The summing up
At an early stage during the summing up, there was an exchange between the trial Judge and senior counsel appearing for the appellant. The question which had arisen was whether the Judge should direct the jury to consider whether, if the appellant was a party to an agreement as alleged, he had withdrawn from the agreement.
Counsel for the appellant specifically requested the Judge not give a direction about what is required for an effective withdrawal. He submitted that the trial Judge should direct the jury that, if they concluded that the appellant was a party to an agreement, then the jury must consider the timing of that agreement. The extent of the agreement was to take Mr Miranda to the house, tie him up, obtain the PIN to his bank account, with no agreement on the part of the appellant, to kill or do grievous bodily harm to the deceased. If the appellant left the house at South Terrace after taking the photograph at 4.08 am, then the appellant’s departure was indicative of the agreement having come to an end. Counsel submitted it was not a case of the appellant withdrawing but, rather, that the agreement to which the appellant had been a party was completed.
Counsel expressed the position as follows:
It would be open to the jury to say, ‘Hold on a minute he has taken his photo and he has left. It is reasonably possible that that indicates that, at least in his mind, the agreement has been completed and fulfilled and so the extent of the agreement was not to kill him or cause him really serious bodily harm but just doing what had been done’.
Counsel specifically submitted to the trial Judge that the defence case did not rely on withdrawal by the appellant from the agreement.
Primarily, the defence case was that Tran had killed the deceased, and that most likely occurred at 52 South Terrace, Pooraka. It was put to the jury that the evidence suggested that the appellant did not take part in the actual killing, and the jury should have a reasonable doubt that the appellant was at the house when Mr Miranda was killed.
The defence submitted that the evidence could not satisfy them beyond reasonable doubt that there was an agreement between the defendant and Tran to kill or do really serious bodily harm to the deceased.
It was submitted to the jury that it was a reasonable possibility that the attendance by the deceased at 52 South Terrace had nothing to do with the appellant. It was Mr Miranda’s intention to go to South Terrace that night for the purpose of obtaining or cutting drugs, and that his attendance had nothing to do with any conduct by the appellant.
It was put to the jury that it was reasonably possible, in fact likely, that Mr Miranda went to South Terrace because he wanted to obtain cutter from Ly, not that he was lured to the premises pursuant to an agreement between the appellant, Tran and others to assault him. It was submitted that the coincidence of Tran and the appellant being at South Terrace did not establish an agreement between them in relation to what was to happen to the deceased.
It was the defence case that the evidence did not establish an agreement, and that there was a reasonable possibility that the events surrounding Mr Miranda’s death occurred spontaneously.
The Judge, when summing up to the jury on the issue of joint enterprise, said:
So let me explain what I mean by that. If two or more persons join in a joint criminal enterprise, then every act done and word spoken in furtherance of that joint enterprise by either of them is, in law, done or spoken by both of them, or all of them, if there is more than two. In other words, the combined actions of two or more people with a common criminal intent in implementing an agreement or an arrangement previously agreed upon by them makes them both or 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. So if it is proved that the accused Jean Ngo was party to an agreement to cause grievous bodily harm to the deceased, and in the carrying out of that agreement the deceased was killed, then it does not matter who did the actual killing. The agreement or the understanding might be the result of a carefully worked out plan or it might be made on the spur of the moment without a word being spoken or even just a nod. However, if the agreement is arrived at and if as a result of that agreement the deceased is killed, then all of the people who are proved to be part of that agreement knowingly will be guilty of murder.
Now, whether such an agreement exists in this case between the accused Jean Ngo and another or others is a matter for the evidence and I will turn to that in a moment, however, I direct you that before the accused Jean Ngo can be found guilty of murder on the basis of a joint enterprise, it must be proved beyond reasonable doubt that there was such an agreement; namely, to either kill or cause at the very least grievous bodily harm. As I said, that means really serious bodily harm, to Mr Miranda, deliberately, and that pursuant to that agreement the accused Mr Ngo played some active part in implementing that agreement intending, when he played that part, to either kill or cause grievous bodily harm, knowing that the agreement with the other person or persons was still on foot when he played his part. If all of those things are proved beyond reasonable doubt then he will be guilty of murder.
I will just repeat that: it must be proved beyond reasonable doubt when you look at the evidence against the accused Jean Ngo, that he was party to an agreement to either kill or cause grievous bodily harm to Paulo Miranda, that he played an active part in the implementation of that agreement, intending at that time to either kill or cause grievous bodily harm to Mr Miranda and that the agreement he had with the other or others was still on foot when he played that active role. If those things are proved beyond reasonable doubt he will be guilty of murder.
However, it is not enough to simply prove an agreement or an understanding to commit a crime. The prosecution must prove that the accused played some part in implementing the agreement or understanding. The participation does not have to be very great, but there must be some evidence of it.

The Judge directed the jury that, if the deceased died when the appellant was not present at the house at 52 South Terrace, Pooraka, he would still be guilty of murder if the jury was satisfied beyond reasonable doubt that he was a party to an agreement or an understanding to inflict grievous bodily harm on Mr Miranda, and that he played some part in implementing that agreement or understanding, and that he did so with the necessary intention to inflict at least grievous bodily harm to Mr Miranda, and that the agreement was still in progress at the time when Mr Miranda was killed.
The Judge directed the jury as follows:
However that is not to say that you cannot take into account the departure of the accused Ngo from the house after the photo was taken at 4.08 am not to return when you are considering whether there ever was any agreement at least in the accused Ngo’s mind to cause Mr Miranda really serious bodily harm as the prosecution allege.
Counsel for the appellant submits that the trial Judge erred in failing to adequately direct the jury on the significance of the appellant’s departure from 52 South Terrace, Pooraka, shortly after 4.00 am on 3 May 2008. In argument, counsel for the appellant conceded that the trial Judge did allude to the possibility of the appellant’s departure from the premises before the actual killing took place. She directed the jury to take that fact into account in considering the extent of any agreement, and if there was an agreement at all.
Counsel’s submission boiled down to a complaint that the trial Judge, although having directed the jury correctly, did not give sufficient emphasis to the evidence relating to the appellant’s departure from the premises, and the likelihood that Mr Miranda was still alive at the time the appellant departed. Further, that if it was reasonably possible that the deceased was alive at that time, that was evidence which could support the defence case.
The trial Judge did direct the jury on that question. No error has been demonstrated in respect of the trial Judge’s directions. The defence case was adequately summarised and left to the jury. The trial Judge’s directions made it clear that the jury had to be satisfied that the appellant was party to an agreement to kill or do grievous bodily harm to Mr Miranda, and that the defendant participated in that agreement.
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.
In R v Nguyen,[5] the High Court reaffirmed its decision in M that the appellate court must ask itself 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.[6]
[5] (2010) 242 CLR 491.
[6] R v Nguyen (2010) 242 CLR 491, 499.
In order for this Court to allow the appeal on the grounds that a verdict is unsafe or unsatisfactory, the appellant must establish that the jury was bound to conclude that there was an alternative explanation of the conduct available, consistent with the appellant’s innocence of the charge. In other words, that there was at least an alternative hypothesis to that of guilt which could not have reasonably been excluded. In considering that question, the importance of having regard to the decision of the jury is essential. As the High Court observed in Doney v The Queen:[7]
... [T]he purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful ...
[7] (1990) 171 CLR 207, 214.
The Court should be cautious before overturning a verdict of the jury in a circumstantial case where, in the collective wisdom of the jury, the evidence satisfied members of the jury beyond reasonable doubt of the guilt of the appellant. The observations of Maxwell P in Butler v The Queen[8] were that it is for the members of the jury to draw upon their collective experience of ordinary affairs in deciding whether they were convinced beyond reasonable doubt of the case which the prosecution was advancing. It is apparent from the verdict that they were, and that they rejected all the various alternative possibilities which the defence had put forward.
[8] [2011] VSCA 417
As Maxwell P observed in Butler, there was room for reasonable differences of opinion. However, in that case he concluded that alternative hypotheses should be rejected and the appeal should be dismissed. Ashley JA, with whom Ross AJA agreed, concluded that there were two rationally available inferences which could be drawn on the issue of the appellant’s intention. They allowed the appeal and remitted the matter for a retrial on the charge of manslaughter.
The alternative hypothesis postulated by counsel for the appellant at trial was that there was a reasonable possibility that the deceased went to the house at 52 South Terrace, Pooraka, by chance and that the appellant was not a party to any agreement to harm the deceased. It was part of the defence case that the jury should reject the evidence of Keal. It was put to the jury that there was insufficient evidence to conclude that the appellant was party to any agreement.
On appeal, counsel shifted ground. He contended that, even if there were evidence from which a jury could conclude that there was an agreement, no reasonable jury could have concluded that there was an agreement to kill, or at least do grievous bodily harm to Mr Miranda, of which the defendant was a party. Counsel submits that, if there is evidence from which the jury could conclude that the appellant was party to an agreement to lure the deceased to South Terrace, the evidence does not support a conclusion that the agreement went further than an agreement to assault Mr Miranda. It is contended that, at its highest, the evidence can only support a verdict of manslaughter. That contention is rejected.
There was evidence capable of supporting the prosecution case, and from which a reasonable jury could exclude all hypotheses, other than that the appellant had been party to an agreement with Tran, and others, that they would lure Mr Miranda to the premises at 52 South Terrace, Pooraka, when he would be assaulted, with the intention of either killing him or doing him grievous bodily harm, for the purposes of obtaining moneys which were owed to Tran.
There was evidence that the appellant and the deceased previously argued. The deceased owed Tran $40,000 and Tran had said that, if he did not pay, something was going to happen to him. There was evidence that the appellant asked Keal to set up the deceased. When Keal refused, the evidence was that the appellant communicated with Tran. He told Tran that the deceased was at McDonald’s, and Tran should come and “get him”. The deceased was observed in the car park at McDonald’s. The appellant spoke to Tran. The evidence established that at 4.08 am the appellant was present at 52 South Terrace, Pooraka and photographed the deceased who was blindfolded and bleeding from the face. It was open to the jury to conclude that the appellant’s presence at the house was not coincidental, but was part of a plan or agreement to lure Miranda to the house and to use violence to extract repayment of the debt. There was evidence that the appellant told his girlfriend that he had hit the deceased a couple of times, and that Tran wanted to get his money back from the deceased. He also told his girlfriend that the other boys still had the deceased.
There was evidence of telephone calls between the appellant and Tran, both prior to and after the death of the deceased.
It was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt. The jury had the benefit of hearing and seeing the witnesses. For the Court to interfere with the verdict, the Court must conclude that a reasonable jury must have entertained a doubt about the appellant’s guilt.
I am satisfied that no such conclusion is open on the evidence.
I would dismiss the appeal.
VANSTONE J: The appellant has now been found guilty of murder by two juries in trials conducted by different judges of this Court.
I am satisfied on the whole of the evidence that it was open to the jury to conclude beyond reasonable doubt that the appellant was guilty.
I agree that the appeal should be dismissed and with the reasons of Sulan J.
WHITE J. I would dismiss the appeal. I agree with the reasons of Sulan J.