R v Nguyen

[2010] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 951 of 2007

THE QUEEN

v

DANG QUANG NGUYEN

No 513 of 2008

THE QUEEN

v

DANG KHOA NGUYEN

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JUDGES	NEAVE and BONGIORNO JJA and LASRY AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 July 2009
DATE OF ORDERS	18 December 2009
DATE OF JUDGMENT	23 February 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 23
JUDGMENT APPEALED FROM	R v Nguyen, Ho and Nguyen [2007] VSC 540 (Williams J)

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CRIMINAL LAW – Conviction – Acting in concert – Extended common purpose – Aiding and abetting – Applicants found guilty of murder and attempted murder – Whether verdicts unsafe and unsatisfactory – Whether jury directions incorrect and deprived applicants of chance of conviction for manslaughter rather than murder – First applicant’s application for leave to appeal granted, appeal allowed, convictions quashed and verdicts of acquittal entered – Second applicant’s application for leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Crown	Mr T Gyorffy	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant Dang Quang Nguyen	Mr P J Matthews	Michael J Gleeson & Associates
For the Applicant Dang Khoa Nguyen	Mr O P Holdenson QC	Balmer & Associates Pty

NEAVE JA:

1. Late on 7 November 2004, or very early the next morning, Bill Ho (‘Ho’) and the applicants, Dang Khoa Nguyen (‘Khoa’) and Dang Quang Nguyen (‘Quang’), went to a flat in Carlton, where seven young people were asleep or watching television.  While they were there Ho pulled out a hand gun, shot Chau Minh Nguyen (‘Chau Minh’) and then killed Hieu Trung Luu (‘Hieu Trung’).  Each of the three men were convicted of the murder of Hieu Trung and the attempted murder of Chau Minh. 

1. Khoa and Quang now seek leave to appeal against their convictions.

1. On 18 December 2009, the Court quashed Quang’s convictions for murder and attempted murder and ordered that verdicts of acquittal be entered in respect thereof, with reasons to be handed down at a later date.  The reasons that follow apply to both Quang and Khoa.

The Crown case

1. The Crown case against Khoa and Quang was that they had accompanied Ho to the flat to collect a drug debt from Mau Duong (‘Mau’).  Ho was armed with a gun and Quang was carrying a Samurai sword.

1. The victim of the count of attempted murder, Chau Minh, did not live permanently in the flat, but was intending to stay the night until about 1:00am when he had to go to work.  He was lying asleep on the floor against a wall when someone stood on his feet and he was woken up.  Ho then shot Chau Minh, who lost consciousness.  Very shortly after the first gunshot there was a second.  Hieu Trung, who was lying on the bed, stood up after the first shot and was then shot in the head.  Hieu Trung died as a result of that gunshot wound.

1. After the second shot the three men left and, as they were…