Wood CJ at CL at 1; McClellan J at 87; Smart AJ at 88
LOWER COURT JURISDICTION:
Supreme Court
LOWER COURT FILE NUMBER(S) :
70090/98
LOWER COURT JUDICIAL OFFICER :
Sully J
COUNSEL :
M. Grogan for Crown G D Wendler for Applicant
SOLICITORS:
S.E. O'Connor Van Houten
CATCHWORDS:
CRIMINAL LAW - appeals - appeal against conviction - murder - directions to jury - discretion to exclude evidence - whether summing up unbalanced - whether necessary to give instructions on alternative verdict of manslaughter - criminal responsibility - distinction between common purpose and joint criminal enterprise - whether principal in second degree - whether mere presence enough to be guilty of murder - miscarriage of justice
(1) Appeal against conviction allowed.; (2) Conviction and sentence quashed and a new trial ordered.
IN THE COURT OF CRIMINAL APPEAL
No. 60356 of 2000
WOOD CJ at CL
McClellan J
Smart AJ
MONDAY 4TH JUNE 2001
Regina v PHAN
The appellant was convicted of murder. He was sentenced to imprisonment for fourteen years with a non-parole period of ten years and nine weeks.
He appealed against the conviction on the grounds that (1) the trial judge failed to give a formal order in compliance with s 54 Jury Act; (2) the trial judge’s directions could not remedy a prejudicial remark made by the Crown prosecutor; (3) the summing up was unbalanced; (4) the trial judge failed to give instructions on an alternative verdict of manslaughter; (5) the trial judge erred in admitting the appellant’s ERISP into evidence; (6) the trial judge’s directions in relation to the liability of the appellant as a principal in the second degree were erroneous and occasioned a miscarriage of justice.
HELD (Allowing the appeal):
Ground 1: Trial judge failed to give a formal order in compliance with s 54 Jury Act
Although it is preferable for a formal order to be made in compliance with s 54 Jury Act, the trial judge gave adequate consideration to the issues before announcing that the jury could separate. The trial judge’s remarks amounted to an implied order under s 54 Jury Act.
Ground 2: Remark made by Crown Prosecutor in his closing address prejudiced the accused and warranted the discharge of the Jury
The Crown Prosecutor’s observations as to the existence of a possible motive for the murder involving a connection with drugs were both careless and imprudent, however, the remarks were sufficiently dealt with by an explicit and…
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.
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Details
AGLC
R v Phan [2001] NSWCCA 29
Case
[2001] NSWCCA 29
Decision Date
CaseChat Overview and Summary
The case of R v Phan involved an appeal against a conviction for murder, with the respondent arguing the trial judge's directions to the jury were flawed. The trial had concluded with a guilty verdict for murder, and Phan appealed on the grounds that the trial judge had misdirected the jury in several respects, including the exclusion of certain evidence and the manner in which the summing up was conducted. Phan also contended that there was a failure to adequately consider the alternative verdict of manslaughter.
The court was required to determine whether the trial judge had abused their discretion in excluding evidence, whether the summing up was balanced, and whether the trial judge should have given instructions to the jury on the alternative verdict of manslaughter. Additionally, the court had to consider the distinction between common purpose and joint criminal enterprise, and whether Phan could be held as a principal in the second degree or if mere presence was sufficient to attribute criminal responsibility for the murder.
The court found that the trial judge's exclusion of certain evidence was not an abuse of discretion and that the summing up, while not perfect, did not result in a miscarriage of justice. The court held that there was no necessity to instruct the jury on the alternative verdict of manslaughter, as the evidence did not warrant such an instruction. The distinction between common purpose and joint criminal enterprise was considered, but the court found that Phan's role in the crime was sufficient to hold him as a principal in the second degree. The court further determined that Phan's mere presence was not enough to attribute criminal responsibility for the murder.
The appeal was dismissed, and Phan's conviction for murder was upheld. The court did not find the trial judge's directions to the jury to be so flawed as to constitute a miscarriage of justice. Phan's conviction remained intact, and he was to serve the sentence imposed by the trial court.