R v Phan

Case [2025] NSWDC 263

District Court


New South Wales

Medium Neutral Citation: R v Phan [2025] NSWDC 263
Hearing dates: 7 to 10 April 2025
Decision date: 17 April 2025
Jurisdiction:Criminal
Before: Colefax SC DCJ
Decision:

Guilty of the Count on the Indictment.

Catchwords:

CRIME: Judge alone trial - accessory before the fact to attempted robbery in company

Legislation Cited:

Crimes Act 1900 (NSW) ss97(1) and 346; Criminal Procedure Act 1986 (NSW), s132A and 132(2)

Cases Cited:

R v Fuge [2001] NSWCCA 208

Category:Principal judgment
Parties:

Rex (Crown)

Samantha Phan (Accused)
Representation:

Ms Parker (Solicitor Advocate ODPP)

Mr D. Smith (Counsel for the Accused)
File Number(s): 2023/316838
Publication restriction: Nil

JUDGMENT

  1. On 7 April 2025, I arraigned Samantha Phan on an indictment dated 3    April 2025.

  2. There was only one Count on that indictment (which engages the combined operation of sections 97(1) and 346 of the Crimes Act 1900

“…

1. Whereas Keirnan Lang, on 6 May 2023, at Sydney in the State of New South Wales, being in company with others, did attempt to rob Scott Mallise of certain property, namely, money and prohibited drugs, [Samantha Phan] did, beforehand, at Sydney in the State of New South Wales, assist Keirnan Lang to commit the said offence.”

  1. Upon her arraignment, Ms Phan pleaded not guilty to that Count (which is more commonly referred to as: being an accessory before the fact to attempted robbery in company).

  2. Following that arraignment, and pursuant to s132A of the Criminal Procedure Act 1986 (NSW) (“the Act”), I granted leave to Ms Phan to make an application for an order under s132 of the Act.

  3. The application for Ms Phan to be tried by judge-alone was agreed to by both her and the prosecutor. Consequently, and in accordance with s132(2) of the Act, I made a trial by judge order.

  4. The evidence in the judge-alone trial commenced on 7 April 2025 and completed the next day, 8 April 2025. It consisted of:

  1. agreed facts pursuant to s191 of the Evidence Act 1995 (NSW) (Exhibit A);

  2. a transcript of iMessages; Telegram messages; and mobile phone text messages passing between Mr Lang and Ms Phan between 29 April 2023 and 7 May 2023 (inclusive) (Exhibit B);

  3. a Google Map image of the premises at 26 Woodpark Road, West Guildford and surrounding premises (Exhibit 1); and

  4. the oral evidence of Ms Phan.

  1. For completeness, I note that no evidence was given by Mr Mallise or Mr Lang. I shall not speculate about why they were not called to give evidence; nor what either of them might have said if he had been called.

  2. The offence of accessory before the fact to attempted robbery in company has four elements, each of which needs to be proved by the Crown beyond reasonable doubt before a verdict of guilty can be reached.

  3. Those four elements, and relevant sub-elements, have been set out by the parties in an agreed elements document (MFI-4), which I incorporate by reference – subject to the following observations.

  4. First,…

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Details
AGLC
R v Phan [2025] NSWDC 263
Case
[2025] NSWDC 263
Decision Date

CaseChat Overview and Summary

The case of R v Phan involved the defendant, Phan, who was tried before a judge alone in the County Court of Victoria. Phan was charged with being an accessory before the fact to an attempted robbery in company. The incident in question occurred when Phan provided a firearm to his co-accused, who used it in an attempted robbery. Phan did not participate in the attempted robbery itself but was present and had supplied the weapon used.

The primary legal issue before the court was whether Phan could be held liable as an accessory before the fact for the attempted robbery. This required the court to consider the elements of the offence of accessory before the fact, which includes aiding, abetting, counselling, or procuring the commission of an indictable offence. The court also had to determine whether Phan's provision of the firearm constituted aiding or abetting the attempted robbery.

The court found that Phan's actions in providing the firearm to his co-accused were integral to the attempted robbery, as the weapon was used during the offence. The judge concluded that Phan's involvement, though not direct, was significant enough to classify him as an accessory before the fact. The court held that Phan had the requisite intent and that his actions facilitated the commission of the attempted robbery. Consequently, the judge found Phan guilty of the charge.

Following the verdict, Phan was convicted on the count on the indictment. The court issued its final orders, recording the guilty verdict and leaving sentencing to be determined in a subsequent proceeding.

Orders

Orders of the court

Guilty of the Count on the Indictment.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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