R v Pham; R v Nguyen; R v Trinh

[2019] NSWSC 1539

Supreme Court

New South Wales

Medium Neutral Citation:	R v Pham; R v Nguyen; R v Trinh [2019] NSWSC 1539
Hearing dates:	04 November 2019
Decision date:	06 November 2019
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	(1) The jury are directed to return a verdict of not guilty in the case of Mr Pham. (2) The application of Mr Nguyen for a verdict of not guilty by direction is refused. (3) The application of Mr Trinh for a verdict of not guilty by direction is refused.
Catchwords:	CRIME – murder – applications for directed verdicts – six accused charged with murder – three accused make applications – circumstantial case – appropriate legal test – where cause of death stab wound to chest – where doubt over knowledge of the presence of a knife – distinction between rational inference and speculation
Cases Cited:	Bloodsworth v R [2019] NSWCCA 260 Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 Duong, Lu, Do & Tran (1992) 61 A Crim R 140 R v JMR (1991) 57 A Crim R 39 R v Le & Loeung [2019] NSWSC 632 R v Qaumi & Ors (No 59) [2016] NSWSC 1159 The Queen v A2, Magennis & Vaziri [2019] HCA 35
Category:	Procedural and other rulings
Parties:	Regina Jason Pham Voung Van Nguyen Minh Duc Trinh
Representation:	Counsel: L Lungo (Regina) R Wilson SC (Pham) B Hancock (Nguyen) S Schaudin (Trinh)   Solicitors: Director of Public Prosecutions (Regina) Blair Criminal Lawyers (Pham) Matt Lorkin Solicitor (Nguyen) George Sten & Co Criminal Lawyers (Trinh)
File Number(s):	2016/00182720; 2016/00182350; 2016/00180864
Publication restriction:	No publication until the conclusion of the trial.Suppression orders made in respect of the witness LK on 8 October 2019.

Judgment

1. At the conclusion of the prosecution case, three of the accused men – Mr Pham, Mr Nguyen and Mr Trinh – made applications that the jury be directed to return verdicts of not guilty to the charge of murder.

The prosecution case in a nutshell

2. The prosecution case is one of joint criminal enterprise. Six men are charged jointly with the murder of Tu Luong. At its core, the case concerns the exacting of retribution or revenge upon a low level drug dealer called Tu Luong (and also referred to as Michael). It is alleged that Mr Luong purchased drugs “on tick” (that is, on credit) from one of the accused, namely Tony William Ho. Mr Ho had obtained those drugs from another of the accused men, Minh Duc Trinh. Mr Luong did not pay for the drugs and Mr Ho, Mr Trinh, Mr Pham and others attempted to locate and contact him. On Sunday, 6 December 2015 a rendezvous was arranged in Bligh Street Villawood. After Mr Luong met Mr Pham, Mr Trinh and Sandra Dobson in Bligh Street, he was driven to Belmore Street in Villawood where he was assaulted by three or perhaps four of the six accused men. In the course of that assault somebody, who on the prosecution case was Jason Hoang, stabbed Mr Luong several times. One of those stab wounds was to the chest and it penetrated his heart. He died some hours later in Liverpool Hospital.

3. The prosecution case is that the six accused acted in concert and were part of a joint criminal enterprise to kill or inflict grievous bodily harm on Mr Luong. On the day in question, the six men occupied two cars, a black Honda Accord and a white Ford Territory. The black car pulled up beside the white car near the corner of Bligh and Mandarin Streets and then both cars drove to Belmore Street. The white car was occupied by Mr Trinh, Mr Pham and the deceased, and was driven by Ms Dobson. The black car was occupied Mr Ho, Abdul Feroz, Jason Hoang and Voung Van Nguyen. It was driven by LK.

4. It is the prosecution case that the occupants of the white vehicle tricked Mr Luong into attending a meeting in Bligh Street where it was suggested there was going to be exchange of drugs – “ice” for heroin. The black car arrived a short time later and the two vehicles travelled the short distance to 10 Belmore Street. Mr Trinh got out of the white vehicle and, on the prosecution case, indicated to Mr Ho and the others where Mr Luong was seated. Mr Luong was dragged from the white car by several of the occupants of the black car and assaulted by Mr Ho, Mr Feroz and Mr Hoang. The prosecution case is that Mr Hoang inflicted the fatal stab wound in the course of that assault. There is evidence of multiple stab wounds and one piece of evidence that suggests that one or more of the wounds may have been inflicted when Mr Luong was still (at least partially) inside the white car. The prosecution submits that during the assault, Mr Feroz and Mr Ho struck the deceased with poles or pipes or similar objects but there is no evidence that any serious injury was occasioned by blunt force trauma. The prosecution case is that Mr Nguyen was present in the immediate vicinity of the assault and was ready, willing and able to assist the others in the violence that led to Mr Luong’s death.

5. As I have said, the prosecution case is one of joint criminal enterprise. At the commencement of the trial, the Prosecutor eschewed any reliance on the principle of extended joint criminal enterprise. This was confirmed in the course of argument on the no case submission. In other words, to establish murder against any one of the accused men, the prosecution must prove beyond reasonable doubt that the particular accused entered into and participated in an agreement whereby it was agreed that Mr Luong would be killed or seriously injured in the assault. An issue which has permeated the trial is whether any of the accused men, apart from the stabber himself, knew that a knife would be used to stab Mr Luong in the course of the assault.

6. Manslaughter is not specifically charged on the indictment but it is a naturally occurring alternative to murder. All parties agree that if the case goes to the jury, the alternative charge of manslaughter, based on an unlawful and dangerous act, would have to be put to the jury and would arise if the particular accused joined an agreement to act violently but did not agree to kill or to inflict grievous bodily harm on Mr Luong. To prove manslaughter, the prosecution would have to prove that the individual accused entered and participated in a joint criminal enterprise to commit an unlawful and dangerous act on Mr Luong.

7. Due to the diligence of counsel, and co-operation between the parties, the evidence adduced by the prosecution is in relatively short compass. It consists of:

1. The evidence of the two drivers. Ms Dobson, the driver of the white car, has not been charged with any offence concerning the death of Mr Luong or her involvement in drug dealing. LK, the driver of the black car, pleaded guilty to manslaughter and was sentenced to 5 years imprisonment following a substantial discount for his plea of guilty and assistance.

2. A schedule of telephone contact and messaging between the various players.

3. CCTV footage from various locations including, critically, footage taken from a house at 8 Belmore Street, Villawood which captures the whole of the critical incident.

4. Evidence of a number of eye witnesses who were present in the vicinity at the time of the incident.

5. Evidence of the forensic pathologist concerning the findings on post mortem examination.

6. Evidence of the police investigation including the examination of the crime scene and evidence of a forensic nature.

8. For the purpose of the present applications it is necessary to focus, not exclusively but most particularly, on the evidence of the telephone communications, the CCTV footage from 8 Belmore Street, Villawood and the evidence of the two drivers. However, a couple of particular observations of two of the eye-witnesses are also relevant to determine the applications and all of the evidence must be considered.

Relevant principles of law

9. The principles applicable to an application such as the present were not in dispute although their application to the factual circumstances of the present case and in particular the distinction between the drawing of rational inferences as opposed to speculation and supposition was subject of contest between the parties.

10. The legal test to be applied on an application for a directed verdict of acquittal is well established. It is a very high test and I explained it in R v Qaumi & Ors (No 59) [2016] NSWSC 1159 at [13]-[14]:

“In R v R (1989) 18 NSWLR 74, the NSW Court of Criminal Appeal considered the question of when a trial Judge has the power to direct a jury to return a verdict of not guilty. Gleeson CJ (with whom Maxwell and Wood JJ agreed) rejected a line of authorities suggesting that a trial Judge may direct a verdict of guilty if they form the view that a verdict of not guilty would be unsafe and unsatisfactory. The Court accepted that the narrower view was correct and held that that:

‘A judge should only direct an acquittal if [they conclude] that there is no evidence upon which a jury properly directed could properly convict. It is sometimes expressed by saying that the question is whether there is evidence on which the accused could lawfully be convicted.’

The power to intervene if the verdict is unsafe or unsatisfactory (i.e. unreasonable and unable to be supported on the evidence) is reserved to the Court of Criminal Appeal.”

11. In Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 the High Court held at 214:

“It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.”

12. In The Queen v A2, Magennis & Vaziri [2019] HCA 35 Kiefel CJ and Keane J explained the application of “the Doney test” in the following passage (with references omitted):

“Application of the Doney test requires assessment of the sufficiency of the evidence taking the prosecution evidence (including the answers of prosecution witnesses to cross-examination) at its highest and drawing all inferences favourable to the prosecution case that are reasonably open. If the case is circumstantial, it is not to the point that the court may consider an hypothesis consistent with innocence to be reasonably open on the evidence. The question is whether a jury, taking the evidence at its highest and drawing all reasonably open inferences that are most favourable to the Crown, could rationally exclude that hypothesis. Subject to contrary statutory provision, the court does not need to consider evidence that contradicts, qualifies or explains the prosecution's case or that supports the accused's case.”

13. In R v JMR (1991) 57 A Crim R 39, Lee CJ at CL (with whom Carruthers and Finlay JJ agreed) explained the operation of the test in a circumstantial case where competing inferences arise. The question of whether the prosecution has negatived all other reasonable inferences consistent with innocence is a question for the jury, not for the trial Judge. Lee CJ at CL said at 44:

“… a judge in a case of circumstantial evidence cannot direct a verdict of acquittal if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be formulated.”

14. An example of the application of these principles is provided in the helpful judgment of N Adams J in R v Le & Loeung [2019] NSWSC 632 at [33]-[34].

15. I have applied these principles to the circumstances of the case of each of the three accused who have made an application for a directed verdict.

Mr Pham’s application

16. Mr Pham was sitting in the rear passenger seat of the white car. His location is important in view of part of the evidence upon which the prosecution relies.

17. Mr Pham was involved in the arrangements whereby Mr Luong attended 28 Bligh Street, Villawood and entered the white vehicle which Ms Dobson drove to the location where the killing occurred. There is evidence of a large amount of telephone contact between Mr Pham and Mr Luong between around midday and 3:56pm. [1] The killing took place at around 4:06pm. An MMS message sent at 1:23pm attached what I take to be a screen shot of a Google map with a “pin” indicating a location in Bligh Street, Villawood. [2] There is CCTV footage showing Mr Pham in the company of Mr Trinh and Ms Dobson at the Pritchard Hotel in the period before and after the killing. [3] Ms Dobson's evidence was that she used Mr Pham's telephone to contact Mr Luong and, by a ruse, arranged for a meeting to take place where there would be an exchange of drugs. The prosecution relies on this deception, apparently orchestrated by Mr Pham, to support the inference that there was some sinister purpose behind the meeting that was proposed.

    1. Ex N, pp 49-52.

    2. Ex N, item 976 and annexure to the exhibit.

    3. Ex Q, R.

18. Based on the evidence of Ms Dobson, along with the CCTV footage and telephone records, there is no doubt that Mr Pham played a role in organising the meeting. There is also clear evidence of his connection with Mr Trinh in the form of telephone contact and CCTV footage. There is no dispute that he was present in the car which drove Mr Luong to the location where the alleged homicide occurred.

19. However, there is no evidence capable of establishing either that Mr Pham left the white vehicle at any stage or that he was aware that weapons were to be used in the assault – or that there was to be an assault at all – before the fatal moments captured in the CCTV footage from Belmore Street, Villawood. It is the absence of such evidence that forms the basis of his application to direct the jury to return a verdict of not guilty.

20. This CCTV footage is critical evidence in terms of what happened at the scene. The prosecution has, without dispute from any of the three applicants for a directed verdict, indicated who is who within the CCTV footage. It is not disputed that Mr Pham never left the white car. What the CCTV footage shows, relevantly to Mr Pham, is that when the white car pulled up, people from the black car approached the white car and attempted, and then succeeded, in pulling Mr Luong from the vehicle. There is some evidence from a local resident (Mr Lancaster) that he witnessed a stabbing occur while Mr Luong was being pulled from, and was still at least partially inside, the white car. From that evidence, taking the prosecution case at its highest, an inference can be drawn that Mr Pham was aware at that moment that a knife was to be used in the attack on Mr Luong. However up until that point there is no evidence capable of establishing that he was aware that any weapons were to be employed or even that any violence was to be employed in the attempt to have Mr Luong return the drugs or pay for them.

21. The driver of the white vehicle Ms Dobson, gave the following evidence relevant both to her actions and those of Mr Pham:

“Q. What happened?

A. So he is pulling, they started pulling him out by his legs and he is screaming ‘no no no’ and the Chinese Russian was in the back and he was just was just like, hunching over like this (indicated) because he was getting, he was getting hit, from

Q. He was getting hit from his

A. The guy [was], John was like, trying to hop over the Chinese Russian.

Q. Just pause there?

A. At one stage.

Q. Alright, so from which door was John coming from?

A. The pass- right.

Q. Michael's door or the Chinese Russian's door?

A. Michael's door.

Q. Now you indicated before that the Chinese Russian was hunched over?

A. Yes and then he helped, and then he started, because, Michael was leaning very strongly, he started to bang, you know, started to get really rough, the struggle, intensified, and the Chinese Russian began to push him out, help, like I guess

Q. No, just don't, just tell us what he did?

A. He was pushing.

Q. Pushing who?

A. Michael.

Q. Okay, what happened after that?

A. And then he even started to come over onto the, into the front of the car and I was getting hit.

Q. Who?

A. Michael, Michael, was leaning in the front of the car hitting onto my shoulder as well, and he even at one stage grabbed some of my hair and I sort of lent back and I sort of just pushed him off me as well, I just didn't want him to get into the front seat and then all these guys [were] going so crazy, like, I didn't want him to, you know get anywhere near me and then they are going to come in and they are so angry.

Q. Just pause there, just take a breather. Was your hair the same length as it is now?

A. Yes.

Q. Shorter or longer?

A. No it has always been long.

Q. So we have got to the point where Michael was attempting to come into the front of the vehicle and your hair is being pulled and

A. Well he wasn't, I don't know if he was attempting but he was, like, they were pushing him and he was leaning and resisting and back and forth.

Q. Right okay?

A. And then, they eventually got him out of the car and closed the door and then Minh jumped in the car and the Chinese Russian said, I just sped off.

Q. In which direction did you go?

A. Straight.

Q. After you drove away, did you look back or did you just

A. I didn't look back no, I was shaking so much and the Chinese Russian just said drive normally and I was shaking like almost uncontrollably.

Q. Where was Michael, the last time you saw him?

A. Michael was in the back seat of the car the last time I saw him.” [4]

4. Transcript (T), pp. 135-136.

22. When Ms Dobson refers in this evidence to the “Chinese Russian” she is referring to Mr Pham. This evidence is capable of establishing that Mr Pham pushed Mr Luong away from himself while Mr Luong was still within the car and when, on Mr Lancaster’s evidence, he was stabbed. It is not capable, rationally, of establishing that he was doing so as part of a joint criminal enterprise to inflict grievous bodily harm on Mr Luong. While it is not a matter of any moment, it is noted that Ms Dobson did almost precisely the same thing when Mr Luong attempted to climb into the front of the vehicle away from those who were trying to pull him out of the white car.

23. The prosecution in its opening said the following things about its case against Mr Pham:

“It will be the prosecution case that the deceased couldn't repay the debt and that Mr Pham was called upon to help Mr Ho and Mr Trinh to recover either the drugs and/or the money and the deceased would be lured to a location and seriously assaulted.” [5]

“Mr Pham was in the Territory seated in the back behind the front passenger. Mr Pham, I expect the evidence to be, that, and from, in particular Ms Dobson, that he was in the back of Territory and he assisted in pushing the deceased from the vehicle…” [6]

“Mr Pham again I expect the evidence to show a significant role by Mr Pham in setting up the meeting, that is the meeting between the deceased coming to the scene and then the others attending in the Accord, so the deceased could be attacked.” [7]

5. T 33.

6. T 34.

7. T 38-39.

24. There is evidence establishing a connection between Mr Pham and at least two of the critical players who arrived in the black car. First, there is telephone contact between Mr Pham’s ‘phone and those of Mr Ho and Mr Hoang on the morning and afternoon of the killing. [8] Those calls can be considered in the context of other calls and messages between Mr Ho and Mr Hoang, Mr Ho and Mr Luong and Mr Pham and Mr Luong. There is also evidence that Mr Pham was present at Mr Ho’s premises on the morning of the incident. This evidence is capable of giving rise to a rational inference that Mr Pham was well aware of the drug debt and of Mr Ho’s desire to have the drugs returned or be paid for. The question is whether they give rise to an inference that Mr Pham joined a joint criminal enterprise to assault, kill or inflict grievous bodily harm on Mr Luong.

    8. Ex N, for example at pp 50-52.

24. Until the critical moment, there is no evidence that Mr Pham knew that the other participants intended to assault, let alone inflict grievous bodily harm upon, Mr Luong. A critical question is whether he knew the occupants of the black car possessed any weapons. There is some evidence that there was at least one knife (and possibly two knives) as well as two pipes or poles inside the black car. LK claimed, implausibly, that he did not see any weapons inside the car although he gave evidence of a conversation about a knife. This evidence cannot be used to draw any inference of knowledge on Mr Pham’s part because he was not present.

25. Similarly, there was evidence of a hunting knife (or similar) being sharpened at Tony Ho’s house by LK, Messrs Ho and Hoang but no evidence that Mr Pham was present at that time. [9] There was also evidence that Mr Pham was present at Mr Ho’s house on the morning of 6 December 2015 [10] but that fact, even allowing for the inference that the knife may have been present at that stage [11] cannot, rationally, lead to an inference that he saw the knife, or that he knew it might be used in the course of an attack on Mr Luong.

    9. T 345-347.

    10. T 351.

    11. T 371

26. Ms Dobson gave evidence of seeing weapons in the black car when it pulled up next to her in Bligh Street: [12]

    12. T 127-129.

“Q. What do you mean by that?

A. It was just, it was pulled up and then it was still driving very slowly, moving.

Q. Did you recognise anyone?

A. Yes. Well, I didn't. Well Minh said ‘Is that John, is that John’ screamed out. They had weapons. They all had weapons and I was very alarmed by their car.

Q. Just pause there. The black car's going slowly past you, is that right?

A. Yes.

Q. Did it stop at any time?

A. I'm not sure if it actually came to a full halt but it took maybe three or four seconds to drive past.

Q. And do I take it you looked to your right?

A. Yeah, well it was like, I was very scared by seeing, when I saw that car.

Q. Did you recognise, and I'm not asking about any items, you referred to weapons, did you recognise any person in the car or persons?

A. [LK] and John in the front seats.

Q. And where was John?

A. John was in the, I'm pretty sure he was in the passenger seat in the front seat.

Q. And you mentioned [LK]. That's someone that you've given evidence of earlier?

A. Yeah.

Q. [LK]?

A. Yes.

Q. Where was he?

A. He was driving.

Q. Was your window, your driver's side window was it up or down do you recall?

A. My window was up.

Q. Do you recall whether your vehicle, the vehicle that you were driving had tinted windows or not or you can't say?

A. Yes, yes, I think. I can't say.

Q. The black car, when you looked to your right and saw John in the front passenger seat and [LK] as the driver, are you able to say whether say John's window was up, down or you can't say?

A. I can't say.

Q. Did you notice anyone else in the vehicle?

A. Yes.

Q. In that black vehicle?

A. Yes. The vehicle seemed very full, very, like it had, because they had so many weapons as well, lagging them around. There was maybe two, at least two other people in the back seat.

Q. Do I take it you didn't recognise anyone in the back?

A. Yes.

Q. Is that right?

A. Yes.

Q. Did you see anyone in the back with weapons?

A. Yes. There was a pole and another knife. I can remember seeing a big curved green knife.

Q. In the back?

A. I think so.

Q. Just the pole, are you able to describe the pole?

A. It was like a wooden pole, like a nice kind of wood, not, yeah.

Q. A wooden pole and do you know

A. A pool cue, maybe a pool cue pole.

Q. A pool cue pole?

A. It sort of looked like a nice (indicated), but not as big as a pool cue.

Q. You're indicating with your hand. Are you able to say from what you could see of the pole, you may not have seen the whole lot, but from what you could see how long the pole was?

A. It seemed to be maybe that long (indicated).

Q. Keep your hands there.

CROWN PROSECUTOR: One metre give or take?

HIS HONOUR: So the witness has held up her hands and indicated a distance and counsel at the bar table agrees that it's about a metre.

CROWN PROSECUTOR: About a metre.

Q. And you don't know who had that pole in the back of the car?

A. No, I don't know who had what.

Q. As far as its thickness, are you able to say from where you were how thick it was?

A. I can't say, maybe that thick (indicated) I don't know, maybe thin. I can't say, I'm sorry. I can't. I don't know. Maybe that thick (indicated ). I don't know. I don't think it was a thick. It wasn't think, maybe more on to the thinner side.

Q. Alright well maybe the size of a 10 cent piece or a 20 cent piece. It went up to 50. You're not sure?

A. I can't be sure, I'm sorry.

HIS HONOUR: For the record, the witness made a circle with her forefinger and thumb which varied in size from about, as you said Mr Prosecutor, a 10 cent piece to about, as Miss Carroll indicated about a 50 cent piece.

CROWN PROSECUTOR: Yes, your Honour. Thank you.

Q. This knife that you saw, are you able to describe that knife?

A. Yeah. One of the knives, I can remember it had a green handle and was really curved. It was very scary actually.

Q. Are you able to estimate the length of the blade?

A. Sorry, I can't. I don't know how you expect me to estimate a knife, how big a knife was I'm sorry. It was big like (indicated) curved.

HIS HONOUR: The witness has made a gesture and it should be described.

CROWN PROSECUTOR

Q. You've described a curve, is that right, from one point to another going into a semi-circle?

A. Maybe it was, you know, 50 centimetres (indicated) the blade maybe alone and then the rest of it. It was quite large and scary.

Q. And you say that was in the back of the vehicle?

A. Yes.

WILSON: Just for the record when the witness said about 50 centimetres she had her hands apart at about 50 centimetres”

28. While this evidence was subject to significant dispute in cross-examination it must be taken at its highest. Even so, the fact that Ms Dobson saw weapons is not capable of establishing that Mr Pham also saw them. CCTV footage shows the point in time when the black vehicle pulled up next to the white vehicle. [13] Ms Dobson, in the driver’s seat, had a clear view into the black vehicle, notwithstanding the windows of each car were tinted and the question marks over which of the windows were open. However from the back passenger seat the point of view would have been very different. It is not a rational inference to draw that Mr Pham saw the same things that Ms Dobson saw.

    13. Ex L.

29. I am unable to identify any evidence from which a rational inference could be drawn that Mr Pham was aware that there were any weapons in the black car and no evidence otherwise that he was aware that anyone had an intention of inflicting grievous bodily harm upon Mr Luong, let alone evidence capable of supporting an inference that he had joined and participated in a joint criminal enterprise to inflict such harm upon him. On the evidence taken at its highest, the first occasion when a rational inference could be drawn that he may have seen the knife was at the moment that the men from the black car approached the rear passenger side and started to assault Mr Luong or drag him from the vehicle.

30. When pressed on this issue, the Prosecutor submitted:

“CROWN PROSECUTOR: The point I'm making, your Honour, is that if that was Mr Pham's knowledge and then when the others attended the scene he saw that there were four running to the car and not perhaps one and he withdrew, then I would accept that he has withdrawn from any joint criminal enterprise.

The reverse of that, in my submission, is the fact that Mr Pham remained there, albeit he didn't get out of the car, and assisted by, on the Crown case, pushing the deceased is evidence of perhaps even at that point a joint criminal enterprise being party of a joint criminal enterprise or joining it can be just prior to the incident.” [14]

14. T 801.

31. Putting aside the fact that this was not the case upon which the Prosecutor opened, and even accepting that Mr Pham may have seen a knife in the few seconds between the black car pulling up and the men approaching the rear driver’s side door, this evidence is not capable of establishing that Mr Pham was part of a joint criminal enterprise to kill or to inflict grievous bodily harm on Mr Luong.

32. Accordingly, I am of the view that there is no evidence capable of establishing the crime of murder against Mr Pham.

33. The Prosecutor submitted that it was open to leave the alternative verdict of manslaughter to the jury. I accept that this is technically possible and the Prosecutor would be permitted to amend the indictment if there was a case to answer on that alternative form of homicide. However, there is no evidence that Mr Pham was aware there was to be an assault at all.

34. Ms Dobson, who was present with Mr Trinh for a great deal of time before the meeting, gave evidence that her understanding was that they were going to collect the drugs or money. She said that Mr Trinh told her “this guy knows the guy Michael who had stolen the ice off John and he’s going to help get the stuff back, the money back.” [15] She went on to say “The Chinese Russian and Minh, to get the drugs or to get the money back.” Mr Trinh told her “you know me, I don’t like violence, that’s not what I’m about.” [16] Whether that was his true state of mind is not relevant to the present application – the evidence is that this is what he told Ms Dobson.

    15. T 115.

    16. T 124.

35. There is no evidence that Mr Trinh said anything different to Mr Pham and no evidence capable of suggesting that Mr Pham had any greater knowledge than Ms Dobson, although again, Ms Dobson’s state of knowledge is not probative of the state of Mr Pham’s mind. However, there is no evidence that Mr Pham was aware that Mr Trinh, or those with Mr Ho in the black car intended to employ violence. LK gave evidence of the conversations in Mr Pham’s presence when he was at Mr Ho’s house:

“Q. When Jason was at Tony's house for a short period of time you didn't hear anyone talking about any violence, did you?

A. No, not that I knew of, no.”

Q. No one had any weapons in their hands or anything?

A. No, not at that time, no.” [17]

17. T 471.

36. Apart from pushing Mr Luong away in the same way as Ms Dobson did, Mr Pham did nothing to support a case that he participated in the assault and there is no evidence from which the jury could rationally draw the inference that he was part of a joint criminal enterprise to commit an unlawful and dangerous act, or inflict violence of any kind, on Mr Luong.

37. Accordingly, I do not propose to leave the question of manslaughter by unlawful and dangerous act to the jury.

38. While acknowledging the different factual matrix, I am fortified in these conclusions by the decision of the Court of Criminal Appeal (Mathews J, Handley JA and Sully J agreeing) in Duong, Lu, Do & Tran (1992) 61 A Crim R 140. That was also a case where a critical question was whether the participants in a “common design” were aware that the principal assailant possessed and might use a knife in the course of an assault. Mathews J said at 150:

“Returning then to the facts of Mr Duong’s appeal. In the absence of any evidence that he knew that there was to be anything more than a minor assault on the deceased, and in the absence of any knowledge on his part as to the presence of a weapon, there was no material from which the jury could have inferred that a stabbing came within the scope of the common design so far as he was concerned. This being the case, there was no evidence upon which he could be convicted of manslaughter.”

“Of critical importance in the case of these appellants was whether there was evidence from which it might be inferred that they knew of the presence of the knife. If they did then it could be said that they should have foreseen the possibility of its use against the deceased. Without such evidence there would be inadequate material to sustain their conviction of manslaughter.”

39. I intend to direct the jury to return a verdict of not guilty in Mr Pham’s case.

The application on behalf of Mr Trinh

40. Mr Trinh was also an occupant of the white car. However, the case against him is very different. Contrary to the submission of his counsel, there is evidence of motive in his case. It was his drugs that were on-sold to Mr Luong by Mr Ho. The evidence showed that he played an active role in liaising with Mr Ho and a number of others in an attempt to locate Mr Luong.

41. On the day of Mr Luong’s killing there were multiple telephone communications (attempted and completed) between the telephone operated by Mr Trinh and that operated by Mr Ho.

42. Mr Trinh was in the front passenger seat of the white car. When the black car arrived in Belmore Street, Mr Trinh immediately got out of the white car before it was even parked. He made a gesture that is capable of being interpreted as indicating where Mr Luong was located in the white car. There was evidence of this from LK who said that “he pointed towards his car, back toward his car and give a nod to Tony [Ho].” [18] This evidence receives possible support from the CCTV footage which captures Mr Trinh’s conduct at this crucial moment. [19] Mr Trinh was the only person to get out of the white car. He was in the immediate vicinity of the rear passenger door when the men from the black car commenced their attempt to pull Mr Luong from the white car. He then retreated to the passenger side of the car. Putting the CCTV evidence together with that of Mr Lancaster, an inference is available that he was very close to the combatants when Mr Luong was first stabbed.

    18. T 376-377.

    19. Ex H at around 15:06:54.

43. I accept that the evidence that Mr Trinh knew that a knife would be used is slight and relies on a series of inferences (if it can be sustained at all). However, from his location on the roadway, the jury would be entitled to infer that he must have seen the pipes or bars carried by the other accused men who emerged from the black car. He did nothing to stop the attack. On the contrary, Mr Trinh did not get back into the white car until Mr Luong was outside of the car and the assault on the side of the road was about to commence. As soon as he got back into the white car, it quickly left the scene.

44. There is some evidence that Mr Trinh expressed surprise when he saw Mr Ho and the others in the vicinity (in Bligh Street). [20] Whether that was genuine, or a ruse calculated to deceive Mr Luong, is a matter of competing inferences. It is not for the trial Judge at this stage of the trial to resolve such an issue.

    20. T 374.

45. I accept that the prosecution case of murder is circumstantial and that there are competing inferences, some consistent with innocence which appear to me to be reasonable ones. If the question was the same as that which applies to a Court of Criminal Appeal in resolving a ground of appeal that a verdict is unreasonable and unable to be supported, my conclusion might be different. But that is not a decision I need to make and applying the tests enunciated in cases such as JMR, Doney and A2, Magennis and Vaziri, I am satisfied that there is a circumstantial case capable of supporting a guilty verdict on the charge of murder. The matter should be left for the jury to consider.

46. Accordingly, Mr Trinh’s application for a directed verdict of not guilty is refused.

The application on behalf of Mr Nguyen

47. Unlike the other applicants for a directed verdict, Mr Nguyen was an occupant of the black Honda Accord. He was seated in the rear middle seat. It is agreed that he was unarmed.

48. The evidence supports the conclusion that Mr Nguyen was at Mr Ho’s house on the morning of 6 December 2015 with Mr Ho, Mr Feroz, Mr Hoang and LK. [21] The men were sitting in Mr Ho’s bedroom and there was a hunting knife on a table in the room. [22] Later, the five men travelled together in LK’s black Honda Accord to Bligh Street where CCTV footage (from 100 Mandarin Street) captured them pulling up alongside the white car driven by Sandra Dobson. [23] Ms Dobson gave evidence that she saw knives and poles in the backseat of the black car at that time. [24]

    21. T 328; T 370.

    22. T 371.

    23. Ex L, T 585.

    24. T 128.

49. When the Honda Accord arrived at Belmore Street, CCTV footage captured a number of events relevant to Mr Nguyen’s case. Mr Nguyen can be seen walking around the front of the white vehicle to the passenger door. Ms Dobson’s evidence was that a man she referred to as ‘babyface’ got out of the black car and knocked on her door and the car window: [25]

    25. T 134.

“Q. Did you see what the other two men who came to the car were doing?

A. Well then, this other, he, walked towards, walked towards me, he had a bab‑ I just called him babyface, I never even knew his name, I never got to know him, I only saw him on that day.

Q. And you know him?

A. He just had a baby face.

Q. We will call him babyface yeah?

A. And he was knocking on my door, knocking on the window and he was saying open the door please, like open the door.

Q. You say he said open the door please and you put your hands in a prayer(indicated)?

A. Sort of put it in a prayer, like, come on please open the door(indicated).

Q. What was his tone like or‑

A. He was not being like, aggressive about it.”

50. There appears to be no dispute, and at least it is an available inference that the man referred to as “babyface” is Mr Nguyen. It might further be inferred that he was imploring Ms Dobson to unlock the doors of the car.

51. Ms Dobson did unlock the doors of the car and Mr Luong was pulled from the vehicle and ran or was pushed onto a strip of grass at the side of the road. After this, Mr Nguyen was standing about a metre away while the assault on Mr Luong took place. He moved around the front of the white car to pick up a shoe from the middle of the roadway and then walked back towards the side of the road where the assault on Mr Luong continued. The CCTV footage shows Mr Nguyen standing directly over Mr Luong before bending down near him, picking up an item and then returning to the black vehicle. The car was driven back to Mr Ho’s house at Malta Street, Villawood. Ms Dobson’s evidence was that when she saw him back at Mr Ho’s house, ‘babyface’ had blood on the shoulder of his t-shirt. [26]

    26. T 206.

52. When Mr Nguyen was arrested, he told police that he knew Tony Ho. [27] Between the time of the “drug rip off” and Mr Nguyen being present at Mr Ho’s house on 6 December, the evidence relating to Mr Nguyen is limited to two ‘phone calls: the first being a 23 second call to Mr Ho at 10pm on 5 December 2015. From the timing of the second call it can be inferred that the call was not answered. [28]

    27. T 36.

    28. See Ex N, items 859 and 862.

53. The evidence as to what happened at Mr Ho’s house on 6 December comes solely from LK, who gave the following evidence in cross-examination on behalf of Mr Nguyen: [29]

    29. T 456-457.

“Q. And do you remember that you talked about when you came back and you saw some other people at the house?

A. May have, I may have, yeah.

Q. I refer to answer 223 your Honour. Did you say this:

‘Another two guys did come but they came to score gear and they came along when it was time to go and see Michael they actually came along and all jumped in the car’

I'm just reading from the transcript?

A. Yes.

Q. Do you remember saying that to police?

A. Yes.

Q. It seems to be you were saying to police that it was a short time before you left in the car that the two other people came along?

A. Could have been a short time. It could have been a bit longer. Can't tell you exactly.

Q. Those two people are Blackie and Monkey, is that right?

A. Yes, they would have been, yeah, yeah.

Q. And they came there to pick up some gear?

A. Yes from my understanding, yeah.

Q. That's when you say soon afterwards Tony Ho was on the phone and then he said something about leaving?

A. Yes, he did, yeah.

Q. Is it the case that when he mentioned something about leaving he didn't say anything about Michael?

A. I don't recall. He may have.

Q. Did he say something to the effect of ‘Let's go get some heroin’ or something like that?

A. No, I don't recall, can't recall now.

Q. At that stage you jumped up and grabbed your keys to the car, is that right?

A. Yes, yes, if we were going, yes.

Q. Well, what did you think was going to happen when you jumped up to grab your keys and when Tony Ho had asked you to leave? What did you think? What was in your mind?

A. I thought he was, he may have tracked Michael down, he was going to see Michael.

Q. Was that something that Tony said to you at that moment or is it something‑‑

A. I can't remember, but it was an assumption.

Q. It was an assumption on your part?

A. Yeah. I can't recall anyway. It's too long ago.

Q. Well, you've been asked about seeing a knife at Belmore Street where the incident took place?

A. Yes.

Q. You've given evidence about that?

A. Yes.

Q. Well, you say you didn't see the knife until it was produced after the passengers had left your vehicle in Belmore Street?

A. Yes, that's right, yeah.

Q. Did you say at answer 484 to the police in your interview on 24 February 2016 in relation to a knife:

“The knife I never seen like that, no, no. No‑one knew that he had it on him until Tony sort of saw it and asked him to put it away you know"

Do you remember saying that to the police?

A. Yeah, I do yeah, yeah.

Q. You're referring to what you told us earlier today about the person having the knife in Belmore Street when you said that to the police that no‑one knew he had it on him?

A. Yes.”

54. Mr Nguyen’s application is based on a number of omissions in the evidence and the fact that he did not take part in the assault itself.

55. The first omission is that there is no evidence of any personal motive on the part of Mr Nguyen to be involved in a joint criminal enterprise to inflict grievous bodily harm on the accused. It was conceded that Mr Nguyen was a passenger in the black Honda Accord but submitted that there was no evidence that Mr Nguyen had any knowledge about Mr Luong and the drug rip off. LK’s evidence was that Mr Nguyen (or ‘Monkey’) was at Mr Ho’s house on the morning of 6 December to buy drugs.

56. Further, there is no evidence that Mr Nguyen was a party to any conversations about the missing drugs and no evidence that he was present on 5 December when it is alleged that a number of the other accused were sharpening a hunting knife at Mr Ho’s house.

57. Contrary to Ms Dobson’s evidence that the backseat of the Honda Accord was “very full, very, like it had, because they had so many weapons as well, lagging them around” [30] , LK’s evidence (set out at [53] above) was that no one else in the black car knew there was a knife. However, for the purposes of this application, the Prosecution case must be taken at its highest and I must act on the basis that the jury may accept Ms Dobson’s version of events. If this account is accepted, it is open to the jury to infer that Mr Nguyen must have seen some of the weapons that were present in the car. LK also gave evidence that Mr Ho told Mr Hoang to put the knife away when they were outside of the car, further evidence from which it might be inferred that Mr Nguyen was aware of the presence of dangerous weapons.

    30. T 128.

58. While it is undisputed that Mr Nguyen was never armed and played no physical role in the assault, the Prosecutor submitted that his presence allows for an inference that he was “willing to assist if called upon or needed” [31] and that he was part of a joint criminal enterprise and participating in it by his presence at the scene of the killing.

    31. T 828.

59. As in Mr Trinh’s application, it may be that the result would be different if the test was that which applies in the Court of Criminal Appeal when considering an unreasonable verdict ground: compare, for example, Bloodsworth v R [2019] NSWCCA 260. However, taking the prosecution case at its highest and applying the strict test required by the authorities, I am satisfied that the whole of the evidence, including the CCTV footage and Ms Dobson’s testimony, is capable of establishing Mr Nguyen’s guilt beyond reasonable doubt.

60. Accordingly Mr Nguyen’s application for a directed verdict of not guilty will be refused.

**********

Endnotes

Decision last updated: 09 December 2019