Regina v Pham

[2005] NSWCCA 9

CITATION:	Regina v Pham [2005] NSWCCA 9
HEARING DATE(S):	22 November 2004
JUDGMENT DATE:	4 February 2005
JUDGMENT OF:	Sully J at 1; Dunford J at 177; Hidden J at 178
DECISION:	Extension of time granted ; Appeal against conviction dismissed; Leave granted to appeal against sentence; Appeal against senenced allowed and sentence passed at first instance quashed; In lieu appellant re-sentenced to imprisonment for 20 years commencing on 5 October 2000 and expiring on 4 October 2020, with a non-parole period of 16 years commencing 5 October 2000 and expiring on 4 October 2016, on which latter date the appellant will first become eligible for parole.

LEGISLATION CITED:	Evidence Act 1995 (NSW)
CASES CITED:	Maxwell v The Queen (1996) 184 CLR 501 M v The Queen (1994) 181 CLR 487 MFA v The Queen [2002] 213 CLR 606 R v Linh Le [2000] NSWCCA 49 Reg v Tangye (1997) 92 A Crim R 545 Reg v Taylor [2003] NSW CCA 194 Reg v Tran [1999] NSWCCA 109 Reg v AEM Snr. NSWCCA 58 Reg v Townsend and Cooper (unreported: NSWCCA, 14 February 1995) Roser and ors : Sentencing Law NSW Vol 1 Reg v Toki [2003] NSWCCA 125 Irani [2002] NSWCCA 153
PARTIES:	Regina Bao Gnoc PHAM
FILE NUMBER(S):	CCA 2004/1854
COUNSEL:	P. Ingram - Crown M. Ramage QC - Appellant
SOLICITORS:	S. Kavanagh - Crown Theo Voros - Appellant

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70078/01
LOWER COURT JUDICIAL OFFICER:	Hulme J

2004/1854

SULLY J
DUNFORD J
HIDDEN J

4 February 2005

REGINA v Bao Ngoc PHAM

Judgment

SULLY J:

Introduction

1 On 11 July 1997 a man named Zi Quiang Jin, also known as Jimmy Jin, was shot to death in an unnamed laneway at the rear of some shops in Dublin Street, Smithfield. His body was discovered slumped behind the driving wheel of a white Suzuki motor vehicle, registered number QUA 622. The rear passenger door of the vehicle was open; its headlights were on; its windscreen wipers were operating; its engine was still running; and there was damage to the front near-side of the vehicle consistent with its having collided with part of the guttering of the laneway.

2 Post-mortem examination established that three gunshots had been fired at close range into the body of the victim causing entry wounds any one of which was potentially fatal.

3 One wound was on the victim’s upper left cheek about mid-way between the eye and the ear. The bullet causing this wound had penetrated the tissues beneath the skin and had then entered the bone of the front part of the temple. It had lodged in that bone, causing bleeding to the brain. There was heavy powder tattooing around the entry point. The bullet causing the wound had moved from left to right; and the powder tattooing indicated an intermediate range wound; that is to say, a wound caused by a shot fired from anywhere up to several feet away from the victim.

4 A second entry wound was at the back of the victim’s neck and below his left ear. The bullet causing this wound had travelled horizontally from left to right and from front to back at an angle of about 60 degrees. The wound had the appearance of a contact wound: that is to say, a wound caused by a shot fired from a firearm then in contact with the victim’s skin.

5 The third entry wound was at the back of the neck and at the middle of the nape of the neck. The bullet causing this wound severed the victim’s spinal cord; propelled forward through the front of the neck, tearing as it did so the left carotid artery; and then entered the victim’s right wrist near the base of the thumb, emerging from the top of the hand. This wound, too, had the appearance of a contact wound: that is to say, a wound caused by a shot fired from a firearm then in contact with the victim’s clothing. The path of the bullet had been angled from back to front at an angle of about 45 degrees and slightly to the right. The wound to the hand was consistent with the hand, when damaged, having been at the front of the victim’s body, and on the lower side of the steering wheel. The position of the victim’s right hand was consistent with its having been holding a gun of some kind at the time at which this entry wound had damaged the hand.

6 Expert ballistic opinion suggested either that two weapons had been used to fire the three shots; or that one weapon had been used but with different types of ammunition. No weapon was recovered. It was not possible to say in what order the wounds had been inflicted. The bullet causing the first wound was recovered; that causing the second wound was not recovered; and fragments of that causing the third wound were recovered. It was not possible to establish a precise sequence of the body movements of the victim, or of any other person present at, and immediately before, the firing of the shots.

7 In due course two men were brought separately to trial, charged with the murder of Jimmy Jin. One was the present appellant, Mr. Bao Ngoc Pham. The other was a Mr. Vinh Ngoc Phan.

8 Mr. Vinh Phan stood trial by jury in the Supreme Court, the trial running from 6 to 28 March 2000. The jury found him guilty of murder; and he was subsequently convicted and sentenced to a substantial term of imprisonment.

9 On 4 June 2001 this Court, (Wood CJ at CL, McClellan J and Smart AJ), quashed that conviction and sentence and ordered a new trial.

10 By that time the appellant had been arrested in Queensland; had been extradited to New South Wales; and had been charged with the murder of Jimmy Jin. On 27 August 2001 the appellant was committed by a Local Court Magistrate for trial in the Supreme Court upon that charge.

11 It was originally proposed by the Crown to bring the appellant and Vinh Phan to trial jointly; and there was a deal of to-ing and fro-ing about fixing a trial date, and about the making by Vinh Phan of any application that he might wish to make for a separate trial.

12 Eventually, Vinh Phan did in fact make a separate trial application. It was heard and granted on 8 November 2001. Vinh Phan’s re-trial was fixed for the following day; and the separated trial of the appellant was stood over to a day to be fixed.

13 Thereafter, and prior to the commencement of his re-trial, Vinh Phan negotiated with the Director of Public Prosecutions an agreement in principle whereby a nolle prosequi would be entered on the murder charge, but upon the conditions:

[1] that Vinh Phan would plead guilty to a charge of having been an accessory after the fact to the murder of Jimmy Jin; and

[2] that he would provide further information to the investigating police; and

[3] that he would undertake to give truthful evidence for the Crown at the appellant’s trial.

14 On 9 November 2001 Vinh Phan pleaded, accordingly, guilty to the accessorial charge. On 12 November 2001, and again on 21 November 2001, Vinh Phan gave additional statements to the investigating police. On 21 November 2001, also, the Director of Public Prosecutions confirmed the antecedent arrangement in principle. On 22 November 2001 Vinh Phan was sentenced to imprisonment for 2 years, the sentence being wholly suspended upon condition that he entered into a good behaviour bond. He gave the agreed undertaking to give evidence in support of the Crown case at the appellant’s trial; and subsequently he gave in fact such evidence at that trial.

15 Between 15 April 2002 and 3 May 2002 the appellant stood trial in the Supreme Court before Hulme J and a jury. He was found guilty as charged. On 25 June 2002 Hulme J convicted the appellant and sentenced him to imprisonment for 25 years with a non-parole period of 20 years.

16 The appellant now appeals against his conviction; and he applies concurrently for leave to appeal against his sentence.

17 The notice of appeal was filed on 8 April 2004. On 22 March 2004 the appellant’s solicitor lodged an application for an extension of time for the bringing of an appeal against conviction, and an application for leave to appeal against sentence.

18 I shall propose in due course an order that the appellant have any such extension of time as he may require in order to permit of his pursuing his present appeal against conviction, and his present application for leave to appeal against sentence.

The Crown Case at Trial

19 The opening address of the Crown was apparently unrecorded; but the closing address of the Crown was recorded, and a transcription of it is included in the Appeal Book. Towards the conclusion of this address, the learned Crown Prosecutor put to the jury this summary of the Crown case:

“The Crown says at the end of the day, the bottom line, you will be satisfied that they both, Vinh and the accused, went there together with the intent to deliberately kill Jimmy Jin or Boa himself had that intention and took Vinh along as some sort of support. Certainly when you look at the ballistics and the injury and where the gunshots occurred on the body, it is very difficult to conclude that Vinh had more involvement. [Note: There appears to be an error in this transcription. I read the concluding words as requiring that the word “not” be inserted before the words “very difficult”.]
The placement of the gunshots, one on the back of the neck and side, you heard evidence, you understand where the gunshots were, it is difficult not to conclude at least one of those gunshot wounds did not come from the back of the car. And that is one reason why you have got to accept Vinh’s evidence with such care. Having said that, it does not mean you say, okay, Bao is not guilty of murder, he was just acting in self defence. The Crown says he went there deliberately with the intention to kill Jimmy Jin.”

20 In proof of that case the Crown relied, essentially, upon: first, the oral evidence at trial of Vinh Phan; secondly, the oral evidence at trial of one Jason Hanser; and thirdly, a body of circumstantial evidence.

21 The oral evidence of Vinh Phan was that he had known the appellant ever since their school days together. At some time during 1996 the appellant had invited him to move into the house then occupied by the appellant at an address in Canley Heights. Vinh Phan had accepted that invitation; and had lived with the appellant until early in 1997. The appellant’s brother, the brother’s girl-friend, and another person named Vanh Tran, also lived at that address. According to Vinh Phan other people stayed at the address from time to time, one of them being Jason Hanser.

22 Early in 1997 the appellant, his brother, the brother’s girl-friend, Vanh Tran, and Vinh Phan moved from Canley Heights to an address at 30 Atherton Street, Fairfield West. According to Vinh Phan, Jason Hanser also moved to the new address at Fairfield West.

23 According to Vinh Phan the appellant, at some time prior to the move from Canley Heights, told him: “……. You do business to sell the white stuff”, the “white stuff” being heroin. The appellant allegedly said that he was doing business with Jimmy Jin.

24 After the move to Fairfield West, the appellant allegedly showed Vinh Phan some heroin, and, “…… he asked me to help him from now on, from then on to do business using telephones and to find customers out there”. According to Vinh Phan, he was so shocked by this proposal that he “….. fled the place” and returned to live with his parents.

25 The appellant allegedly coaxed Vinh Phan back to Fairfield West, gave him “some consolation, comfort ….. “; and soon thereafter drove him to the Smithfield shops which were located in the vicinity of the place of the later shooting of Jimmy Jin. There, Vinh Phan was introduced by the appellant to Jimmy Jin. Thereafter Jimmy Jin and the appellant went off together for a short while, after which the appellant drove Vinh Phan home.

26 About two weeks later the appellant allegedly asked Vinh Phan to accompany him to a second meeting with Jimmy Jin. They went together in a vehicle driven by the appellant to the Smithfield shops. Jimmy Jin was already there, and seated in a red Honda Prelude. This time, Vinh Phan was left in the appellant’s vehicle, while the appellant went over to Jimmy Jin’s vehicle, entered it, and remained there with Jimmy Jin for “about two minutes”. Thereafter the appellant drove Vinh Phan home.

27 On the day of the shooting, Vinh Phan got up at about 11 a.m. The appellant was in the living room. He told Vinh Phan that he needed a car that day. According to Vinh Phan, there were at that time three motor vehicles garaged at the Fairfield West address; a white Commodore; a white Cordia, which was the vehicle that the appellant had driven to the two meetings previously described; and a silver Mazda. After lunch, Vinh Phan saw the appellant and Jason Hanser looking at a copy of the “Trading Post” newspaper. He took no particular notice of what they were doing; but later in the afternoon he discovered that the appellant had bought, earlier during the afternoon, a “dark yellow” Commodore.

28 Later still, Vinh Phan and the appellant and some of the other residents of the house were drinking and singing together, when the appellant’s mobile telephone rang. The caller, according to Vinh Phan, was Jimmy Jin. After the call had concluded, the appellant tapped Vinh Phan on his shoulder and said: “Let’s go for a drive”. The two men went outside to where the yellow Commodore was parked. Jason Hanser was seated in it and behind the driving wheel. The appellant got into the front passenger seat, and Vinh Phan got into the rear passenger seat behind the driver.

29 The three men drove to the Smithfield shopping centre. The appellant and Vinh Phan got out of the car, and Jason Hanser drove off. About 10 minutes later the appellant made a call on his mobile phone; and shortly thereafter a white car driven by Jimmy Jin came on the scene. The appellant got into the front passenger seat of that vehicle, and Vinh Phan got into the rear passenger seat behind Jimmy Jin.

30 The car was driven off; and was driven, in effect, around the block for about three circuits. At some unspecified time Vinh Phan moved from being seated behind Jimmy Jin to being seated behind the appellant. Jimmy Jin and the appellant were talking, but Vinh Phan paid no particular attention to what they were saying, except to notice the words “fuck”, spoken by the appellant, and “money”.

31 The exchanges between Jimmy Jin and the appellant became physically violent. Jimmy Jin made movements which are described in the trial transcript as:

“…….. hitting movements twice with his left hand, and once with his right hand, though not extending either hand very far from his body”,

and at shoulder height; at the same time turning his head so as to be facing to his left.

32 According to Vinh Phan, the appellant countered these blows with “blocking” movements. By this time the vehicle was in the back lane, and the ambient lighting was not good. What then happened, according to Vinh Phan, is best described by reproducing the relevant evidence as transcribed:

“Q. Could you see if either of them had anything in their hands, either of them. That’s either Bao or Jimmy had anything in their hands?
A. It’s something like Jimmy hold to the left, but I can’t see clearly what it is.
Q. Jimmy had something in the left?
A. In the hand.
Q. In his left hand?
A. Yes.
Q. But you couldn’t see clearly what it was?
A. Yeah.
Q. What did you do then?
A. Then I think that I was scared and ---
HIS HONOUR: Don’t tell us what you thought what did you see or hear?
A. (Interpreted) I was scared, and I put my hand on the open door.
CROWN PROSECUTOR: Which door is that?
A. It’s at the back, the passenger seat.
Q. So that’s the door on the left hand side of the car, with the driver sitting in the front?
A. Yes.
Q. Do you remember whether you opened that door or not?
A. No.
Q. Meaning you don’t remember, or you didn’t open it?
A. I didn’t open it.
Q. Did you see something happen then?
A. Then I hear bang, big bang.
Q. What happened then?
A. And I become dazed.
Q. Was the car still moving at this time?
A. It’s going very slow.
Q. After you heard the big bang, did you hear anything else?
A. Yes.
Q. What else did you hear?
A. I hear another three bang.
Q. Another three bangs, and were you able to tell where they came from?
A. It’s all in the car.
HIS HONOUR: I’m sorry. I didn’t hear that. Something in the car.
CUSACK: All in the car it was.
WITNESS: All in the car.
CROWN PROSECUTOR: Q. Did you hear any voices at that time?
A. Yes.
Q. What voices did you hear?
A. I hear Bao’s calling me.
Q. What was Bao saying?
A. Bao say to me in Vietnamese, “Vinh, are you all right?”.
Q. How were you feeling at this time?
A. At that time I become like unconscious, and like I can’t feel that, my body can feel but I am – (interpreted). Yeah, as if I was, become unconscious but I still could hear.
Q. Do you know where you were at that time?
A. Yes.
Q. Where were you?
A. It’s at the back the car.
Q. Are you talking about in the car, or outside the car?
A. It’s in the car.
Q, What happened then?
A. Then I thought Bao was carry me out of the car, of the white car.
Q. Bao was carrying you out of the white car. Is that that what you said?
HIS HONOUR: Q. Bao was carrying me out of the white car?
A. (Interpreted) He was dragging me towards the white car. He was dragging me along for some distance.
CROWN PROSECUTOR: Q What happened then?
A. (Interpreted) Then Bao put me into one of the cars, and he put me at the back of the car. I heard the shutting the car door, door of the car.
Q. Do you know who was driving the car you were in at that time? Did you know who was driving it at that time?
A. (Interpreted) No.
Q. Was Bao in the car too? Did he get in the same car you were put in?
A. (Interpreted) I can’t see him, but I can hear there is two-door closing, bang, bang. I hear the slamming of doors twice.
Q. What happened then?
A. The next thing I remember (Interpreted) he drove me back to where I was living at Fairfield.
Q. Are you referring to Atherton Street I think, are you sir?
A. Yes.
Q. When you got to Atherton Street, were you able to see where people were in the car?
A. Yes.
Q. Where were the people in the car?
A. At that time I became aware that I can open my eyes, and I see that I was injured, like my blood over my face and I saw Jason was driving and Bao was sitting in the passenger seat.
Q. In the?
A. Passenger seat.
Q. In the front or in the back?
A. The front.
Q. Whereabouts were you bleeding from? Where was the blood?
A. It’s all on my face.
Q. I think at some stage you realised you were cut on your head?
A. Yes.
Q. Can you just show the jury where the cut was on your head. Behind your hairline. Indicating on the top part of your left temple. Is that right sir? Up here?
A. Yes.
HIS HONOUR: Q: Could you show me please (Indicated) Is there a scar there?
A. Yes.
Q. Come closer?
A. (Complied)
HIS HONOUR: Mr. Crown, it’s about an inch and a half above the left eyebrow, and I am not sure that I saw it completely distinctly. It looks to me to be more of a half to three quarters of an inch long. The jury would not have seen it from where they are.
CROWN PROSECUTOR: I don’t know whether or not a lot hinges on it. Perhaps the witness should come down and slip back his hair so the jury can see.
CUSACK: Which direction is the scar going?
CROWN PROSECUTOR: Q. Which direction did the cut go sir?
A. (Indicated)
Q. So it went from one side here, across to the left side?
A. Not that far. Just here. (Indicated)
HIS HONOUR: More or less horizontal but sloping down to the left.
CROWN PROSECUTOR. Q. Once you got to Atherton Street, how did you get out of the car?

A. It’s, I see but (Interpreted) Bao was carrying me out.
Q. What happened then?
A. And I hear Bao calling Jason to help him to carry me out.
Q. Did Jason help you to be carried as well?
A. I am not sure about that.
Q. Did you get into the house?
A. Yes.
Q. Whereabouts in the house did you go?
A. It’s at the back of the house, where Bao room is.
Q. Just before I get there, when you were being taken from the car into the house, were you able to see what car you had been in?
A. Yes.
Q. What car was it?
A. It’s car, the yellow Commodore that Jason drive.” [T 324-327]

33 According to Vinh Phan, he heard the appellant asking somebody something about whether a weapon “had been hidden and clean”.

34 On the following day Vanh Tran drove Vinh Phan to see a doctor in order to receive treatment for his head injury. The doctor stitched the wound. Vinh Phan falsely told the doctor that he had suffered the injury when he had fallen off a bike.

35 Vinh Phan then returned to the Fairfield West address. He spoke to the appellant, asking what had actually happened on the previous night. The appellant replied: “……… It is only a fight so don’t say to anybody the truth”.

36 At some time thereafter Vinh Phan moved to a new address and did not thereafter reside with the appellant.

37 Vinh Phan’s evidence then turned to various aspects of conversations that had been recorded by means of an authorised listening device. It is not necessary to deal at the present point with the details.

38 Vinh Phan then gave some evidence of conversations allegedly had by him with the appellant after Vinh Phan had been arrested and charged. On one such occasion Vinh Phan allegedly asked the appellant how he, Vinh Phan, had come to injure his forehead. The appellant allegedly replied:

“A. Bao say John, he had appointment with Jimmy and he come, to come to see him, then he went out to see Jimmy for the purchase and selling of guns. He was about to go there but he forgot to bring the money with him to pay Jimmy. Jimmy got angry. That’s why they talked loudly and why they had an argument. Before they started having an argument Jimmy gave gun to Bao and Jimmy asked Bao where’s the money. Bao did not have the money on him at the time and Jimmy got angry. Jim was angry to the extent that he hit him. Bao ended off and during that, at that time Bao was holding gun had been given to him by Jimmy. Bao just raised the gun and shot, fired for Jimmy, at Jimmy afterwards but Bao jumped to the back door, got out of the back door. When he saw me in unconscious state in the car Bao at the time saw Jimmy was still unconscious. Jimmy raising this gun and with intent to shoot Bao. Bao just hit, using his hands to hit Jimmy. The gun fell down to the ground. Bao picked up the gun and shoot and he shot, shot Jimmy twice to his back.
CROWN PROSECUTOR: Q. And did Bao give you any explanation, any guide, of how you got your injury to your head?
A. He say, he said that had happened so quickly so Bao didn’t get any idea at all.” [T339-340]

39 Vinh Phan was closely and extensively cross-examined. He admitted to having delivered drugs on behalf of the appellant; but denied that he had ever been a drug courier for Jimmy Jin. He denied that he had ever been in possession of any gun on the night of the shooting. He denied any knowledge of any dealings between the appellant and Jimmy Jin in the latter’s motor vehicle or about any proposed purchase from Jimmy Jin of any gun(s). He admitted having lied to the investigating police in interview after interview and until after he had brokered the arrangement that is described earlier herein. He denied adamantly having used the appellant’s mobile phone, other than incidentally, and in ways unrelated to the shooting of Jimmy Jin.

40 Jason Hanser confirmed in his evidence the purchase of the yellow Commodore. His recollection was that he and the appellant had found the vehicle through an advertisement in the Trading Post; and that only he and the appellant had actually gone out to buy the vehicle. He said that the appellant, the appellant’s brother, Vinh Phan and Vanh Tran, had all been associated in one way or another with heroin trafficking, he himself having acted as chauffer whenever a particular transaction called for motor transport.

41 Mr. Hanser corroborated generally Vinh Phan’s account of the journey to Smithfield. He was not present at the subsequent meeting of the appellant, Vinh Phan and Jimmy Jin. His observations at and immediately after the time of the shooting were:

“Q. What happened then?
A. I saw headlights coming up the laneway and then the car pulled over to the left and stopped.
Q. Pulled over to the left?
A. The headlights.
Q. To the passenger side, referring to your passenger side of the laneway?
A. Yes.
Q. When you say “pulled over”, could you describe how it pulled over?
A. It bumped into the wall and stopped.
Q. Now do you I take it from what you have just said to the Court that you had not seen any headlights coming up that laneway prior to that point of time?
A. No.
Q. That was the first car that came up the laneway after you saw Bao and Vinh walk down the laneway?
A. Yes.
Q. Now when you saw the headlights come towards you, I take it to some degree your interest, you were aware of the car coming up the laneway?
A. Yes.
Q. Did Bao have any conversation with you about where it was that you were going to meet him after they completed whatever mission they were to complete?
A. No.
Q. You were just told to wait there in the car in that position where you stopped?
A. Yes.
Q. When you saw that car coming towards you, did you recognise the car that was coming towards you?
A. No.
Q. When it pulled over to the side and crashed into the side wall, if I can describe it like that, did you hear the crash?
A. Yes.
Q. And did you hear anything prior to that, prior to the crash?
A. Two bangs.
Q. And when did you hear the two bangs, before or after?
A. Just as the car hit the wall.
Q. Just as the car hit the wall. And did you see any doors open on the car before it hit the wall?
A. No.
Q. Did you see any doors of the vehicle open after the car hit the wall?
A. No.
Q. But I think you were watching the car coming down the laneway in your rear vision mirror?
A. Yes.
Q. And I think at that point of time the next thing that you recall was Bao coming to your window?
A. Yes.” [T 217-218]

42 The appellant asked Mr. Hanser to help him attend to Vinh Phan who was then lying on the ground in the laneway. There was blood on his forehead and he appeard “dazed”. Mr. Hanser saw no weapons. He assisted Vinh Phan into the back seat of the yellow Commodore and drove Vinh Phan and the appellant home. The appellant asked Mr. Hanser not to say anything about what had happened.

43 In cross-examination Mr. Hanser agreed that the reason for the purchase of the yellow Commodore had been that the appellant needed the use of a car, and Mr. Hanser’s own car, which he would normally have used, was not in a reliable operating condition.

44 The circumstantial evidence forming part of the Crown case at trial is summarised clearly and conveniently in the following extracts which are taken, with minor adaptations, from the written submissions of the Crown:

“i. evidence of various telephone calls made on 11 July 1997 to and from a mobile telephone “814” to which the appellant and Vinh Phan had access which demonstrated that the telephone was in the vicinity of the shopping centre and various relevant residences on that evening;
ii. one such telephone call at 9.06 p.m. on 11 July 1997 made from the residence from which Jimmy Jin left to meet the appellant at the shopping centre to the mobile telephone “814”; the relevant records for that call disclosed that the mobile telephone “814” was at the time of the call located in an area that included the shopping centre;
iii. at about 9.20 p.m. on 11 July 1997 there had been three shots heard by Mr. Thompson and Ms. Papas both of whom lived nearby to the shopping centre and laneway;
iv. the shots were followed by the sound of breaking glass;
v. at 9.20 p.m. a security guard (Schumack) heard the sound of breaking glass and on investigation found the Suzuki crashed in the rear laneway with Jimmy Jin slumped in the driver’s seat;
vi. at 9.30 p.m. Police (Whitton) first attended the scene;
vii. the three shots heard had been evenly spaced about a second apart;
viii. there were various wounds on Jimmy Jin that were consistent with three shots having struck him. One of the wounds was to the left temple and (given the position of the body of Jimmy Jin in the Suzuki) was consistent with having been fired from the front passenger seat area of the vehicle from an “intermediate” range. The two neck wounds were consistent with having been fired from the rear seat of the car and were both “contact” wounds;
ix. the ballistics evidence was consistent with either one or two guns having been used to fire the projectiles that wounded Jimmy Jin;
x. having only been purchased earlier on 11 July 1997, the registration details of the yellow Commodore did not permit an association to be readily made between that vehicle and the appellant, Vinh Phan, Jason Hanser or their Atherton Street household;
xi. the appellant had lied to Police in his ERISP saying he had last seen Jimmy Jin one or two years before the shooting, that he had been informed by others how Jimmy Jin had died, denying any knowledge concerning the circumstances in which Jimmy Jin had died, and denying any knowledge of the yellow Commodore;
xii. the appellant had received a letter from his brother which entreated the appellant that when he was to meet “JIMY” to “….go in pair (and with licence ) …”. The appellant admitted that this letter concerned the drug dealing with Jimmy Jin. There is an irresistible inference that this entreaty referred euphemistically to the appellant only seeing Jimmy Jin in company with another person and then armed with a weapon or firearm of some type. The appellant had no driver’s licence or other relevant licence;
xiii. Vinh Phan gave evidence that the appellant had admitted to him that he had fired all three shots that wounded Jimmy Jin – though the appellant had claimed that the shots were fired in circumstances that might raise the issue of self-defence.”

The Appellant’s Case at Trial

45 The appellant gave evidence. He called no other witnesses.

46 The appellant’s own evidence is summarised conveniently and as follows in the Crown’s Summary of Trial:

“The appellant gave evidence that he has never been convicted of any crime of violence. He said that when interviewed by the Police in February 1998 he told the Police lies regarding his dealings with the deceased. He did not tell the truth when asked if he could tell the Police anything about the death of the deceased.
The appellant said that he and Vinh became friends in 1996. Vinh moved in with him and they lived in various houses before moving into 30 Atherton Street, Fairfield West in January 1997. He became aware that the deceased supplied drugs because the deceased would deliver drugs to a house at Canley Vale where the appellant previously lived. After the appellant moved into his brother’s house at Villawood both he and Vinh received drugs from the deceased. They both distributed drugs for the deceased whilst living at Atherton Street in 1997. (T29.4.02 pg 46). In 1997 the appellant did not have a driver’s licence and Jason Hanser would drive him to various places to deliver drugs.
About one week prior to 11 July 1997 he spoke to the deceased about guns. The appellant was not sure whether he spoke to the deceased on 11 July 1997 or whether it was Vinh. The appellant then went to meet the deceased. They travelled in the yellow Commodore driven by Jason Hanser. Jason had told him that the Cordia had a problem with the engine. The appellant had met the deceased at the Smithfield shops about ten times previously. When they arrived there Jason parked the car in the alley way near the shop and waited for them. The appellant and Vinh got out of the car and waited for the deceased.
The deceased arrived in a white car and told the appellant and Vinh to get in the car. The appellant got in the front seat and Vinh got in the back behind the driver. The deceased drove around and then stopped and pulled out two guns. He gave one to the appellant and one to Vinh with two boxes of bullets and told them how to load the guns. The deceased said that one was a .45 and one was a .38. The appellant said that he wanted to drive somewhere to test the guns but the deceased said “No” as he didn’t feel well and he kept driving the car and did a “U” turn (T29.4.02 pg 459). One of the guns looked new and the other looked old and the appellant questioned the deceased about that. The deceased became angry. He said “There’s the gun I got for you so where’s the money”. The appellant did not expect that the deceased would want the money that day. The deceased became angry and asked about the drug money that they owed him. The appellant owed him $6,000 in drug money and $3,500 for the guns. The appellant said he would pay him on Sunday. The deceased told the appellant he was a ‘fucking weak shit’. Vinh said “It only $10,000, why you make a fuss about it?”. The appellant said the same thing to the deceased. The deceased hit the appellant in the face with the back of his hand. (T 29.4.02 pg 461) The appellant tried to hit him back but missed and hit the chair.
The deceased then pulled the car into the kerb and the appellant saw the deceased put his left arm across towards his right hip and pull out a gun. The appellant took the gun from his lap and pulled it up. The appellant said in evidence “after we point the gun I heard two bang”. He said he heard two bangs from the back which startled him and he then shot another one. (T 29.4.02 pg 463.26) The car then smashed into the gutter.
After he fired the gun the appellant quickly tried to get out of the car but when he got out he could not see Vinh. He looked behind and saw Vinh still in the car with the rear passenger door open. Vinh was lying on the back seat with his head pointing towards the driver’s side door. ‘He still like a half unconscious because he still moving’. The appellant dragged him out of the car. The appellant took the gun from Vinh’s hand and put it in his pocket. The appellant then saw the gun on the front seat where he (the appellant) had been sitting and put that in his pocket as well. (T29.4.02 pg 464) The box of ammunition that he had been given was in his pocket and Vinh had the other box in his pocket (T 29.4.02 pg 471).
After the appellant got Vinh out of the car he called out to Jason to help but Jason didn’t hear so the appellant carried Vinh to the car. Jason helped put Vinh in the back seat. In the car the appellant noticed that Vinh was bleeding from the head. Jason drove back to Atherton Street, Fairfield West and they helped Vinh into the house. The appellant and his sister helped clean up the wound. At that stage Vinh seemed very tired but he was still talking to them. Vinh asked the appellant to go back to check to see if the deceased was dead or not as he was concerned about revenge by the deceased (T 29.4.02 pg 474).
The appellant had three guns when he returned to the house, the two that the deceased had given them and the one that the deceased had on him. The following day the appellant and Vinh had a discussion about what had happened. The appellant said in evidence “After that I talked to Vinh and I told him that because Vinh tried to help me so Vinh shot him”. There was also a discussion about the guns and that they would try to sell the guns. They eventually sold the guns when they lived at 43 Willan Drive, Cartwright. They gave the yellow Commodore to one of the appellant’s friends.
The appellant said in evidence that when the deceased pointed the gun at him in the car he thought the deceased might shoot him. He heard the bang and he was startled. That’s when the appellant fired his gun. (T 29.4.02 pg 476.0)
The appellant said in evidence that he went with Jason Hanser to purchase the yellow Commodore. Vinh Phan and Van Tran also went with them (T 29.4.02 pg 470)
The appellant could not remember if he had a conversation with Vinh in the year 2000 or 2001 about the shooting (T 29.4.02 pg 476). In 1997 the appellant had a mobile where the last three numbers in it were 375. This phone was mostly used by him. The other mobile with the last three numbers 814 was mostly used by Vinh. Sometimes these phones were lent to other people. Both he and Vinh used to ring the deceased’s pager. When they delivered drugs Jason would drive and the appellant would tell him where to go. Vinh did not direct Jason where to go to (T 29.4.02 pg 478). In 1996 and 1997 the appellant’s relationship with Vinh was very close. The appellant considered him to be a half brother.
In cross-examination the appellant said that in 1997 the deceased gave him credit for the drugs. He and other people in the house would deliver the drugs and obtain the money. At some stage after collecting the money together they would give it to the deceased. The appellant could not remember whether or not on 11 July 1997 he made the call to Mr. Hayek to purchase the car. He recalled going to the house to purchase the car with three other people and paying cash for it.
He said that when they were in the car the deceased showed the appellant how to put the ammunition in the gun and then he took it out again. The appellant in turn showed Vinh how to load the gun he had been given. The appellant then put the ammunition in himself (T 29.4.02 pg 496.11). Prior to this night there was never any exact amount of money discussed for the purchase of the guns.
The appellant agreed that the letter from his brother referred to the business of dealing in drugs. The appellant said that the word “licence” in the letter was a reference to a driver’s licence. (T 29.4.02 pg 503.35)
He said that in the majority of the time just two people delivered drugs together. That evening of 11 July was the first time the appellant had seen the deceased with a gun.
In relation to the listening device tapes the appellant agreed that he had a discussion in the house with Vinh about the blood on the car and also a discussion about what the penalty would be for murder. (T 30.4.02 pg 533)”

The Conviction Appeal : Ground 1

47 The Ground is:

“The trial miscarried.”

48 The written submissions of the appellant say about this ground only that:

“It is submitted that the trial miscarried due to a combination of errors in the conduct of the trial and the directions given to the jury as set out more fully in the other grounds hereunder.”

49 At the hearing of the appeal this submission was broadened into a submission that what had principally caused the trial to miscarry had been a fundamental inconsistency between the approach of the Crown when dealing with Vinh Phan in connection with his plea of guilty to the accessorial charge, and the approach of the Crown when dealing with Vinh Phan as a Crown witness at the appellant’s trial.

50 As argument progressed at the hearing of the present appeal, it became possible to refine the appellant’s complaint of such a fundamental miscarriage. It was accepted by learned Senior Counsel for the appellant that he was contending: first, the structure of the Crown case presented at the appellant’s trial, and the structure of the Crown case presented in connection with the plea accepted from Vinh Phan, were so completely irreconcilable as to have given rise to a miscarriage of justice; and, secondly, that such miscarriage had been made even worse by the way in which the Crown elicited at trial the evidence of, in particular, Vinh Phan himself and Jason Hanser.

51 It must be said, I think, that there is some force in these complaints.

52 First, it must be remembered that the Crown prosecuted Vinh Phan to conviction by a jury of the murder of Jimmy Jin. That Crown case was put upon two alternative bases. One was that Vinh Phan had actually fired, with an intent appropriate to murder, one at least of the three potentially fatal shots. The other was that Vinh Phan was liable, not as a participant in an unlawful common enterprise to kill Jimmy Jin, but as a principal in the second degree, present when the shooting took place, and aiding or abetting the shooter or shooters.

53 When Vinh Phan’s conviction was considered in this Court, Wood CJ at CL said this:

“The present case, so far as the second limb was concerned, was not one of common purpose strictly speaking in which it was alleged that the parties agreed to commit a particular crime but had in contemplation some further crime, as a possible incident of its commission, cf Johns (1979) 143 CLR 108. Rather it was a case, if anything, of common enterprise in which the parties to it were each active participants and hence liable as principals in the first degree, or one where the Crown being unable to prove which of several persons, present at the scene of a crime, committed the particular act giving rise to the offence, nevertheless was able to establish that each was assisting the other, in which event it was properly left as one of principal and accessory: Mohan (1967) 2 AC 187 and Clough (1992) 28 NSWLR 396.”

And at the conclusion of his Honour’s judgment:

“I am not persuaded that the jury would inevitably have convicted upon the basis of the first limb of the case, since it was classically a case of the kind considered in Mohan and Clough in which the Crown could not prove which of Bao and the appellant fired the fatal shots. Particularly was it necessary to turn to the second limb, and to direct the jury with some precision as to what was required to establish the criminal liability of the appellant as a principal in the second degree, since it was his case that he was there as an accidental participant who had no knowledge of what was to occur, who played no intentional part in the shooting, and who provided no encouragement or assistance.”

54 Smart AJ observed that, in his Honour’s opinion: “The Crown case has considerable strength”.

55 All three members of that Bench of this Court thought that Vinh Phan should be re-tried. I take that to be an indication of the opinion of the Court that the whole of the evidence available to the Crown as against Vinh Phan, if left in the correct way to a jury at trial, was capable of supporting reasonably a verdict of guilty of murder.

56 Secondly, the Crown did in fact move to bring Vinh Phan to re-trial upon a charge of murder. There is nothing that I can see to explain some potentially fatal weakening in the Crown evidence as between the time of the first trial and the time of the acceptance by the Crown of the plea of guilty to the accessorial offence.

57 Thirdly, the Crown placed before Greg James J, in connection with his Honour’s sentencing of Vinh Phan upon that plea of guilty, an extensive statement of facts. A copy of that statement was made available at the hearing of the present appeal.

58 This statement makes, to say the very least, interesting reading in the context of the present discussion. The Crown case on the accessorial charge is summarised thus:

“………….. that the offender on a number of occasions deliberately concealed from the police material facts concerning the death of Jimmy JIN with the intention of assisting BAO evade capture and prosecution for the death of Jimmy [sic].”

59 There then follow particulars grouped in numbered paragraphs under the headings: “Pre arrest”, and “Post arrest”. The particulars refer, speaking broadly, to lies told by Vinh Phan to investigating police. There is one separate particular nominating Vinh Phan’s “agreeing to comply with direction from Bao not to tell Dr. LE the true story as to how he received the injury to his forehead”.

60 Apart from the foregoing material respecting the accessorial charge, the statement of facts contains a separate section of material dealing with the appellant, and another dealing with Vinh Phan.

61 Neither of these two bodies of material so much as mentions any alleged common unlawful enterprise, joined in by the appellant and by Vinh Phan, to murder Jimmy Jin; or to acquire prohibited firearms from Jimmy Jin; or to accomplish any other specific unlawful objective connected in any way with Jimmy Jin.

62 Neither body of material draws attention to the nature and extent of the very close personal ties that existed at the material times between the appellant and Vinh Phan. There is no indication that the appellant and Vinh Phan had any greater personal ties than those of two people who had just happened to share accommodation at two separate nominated addresses. There is no mention of the undoubted fact that Vinh Phan had from time to time admittedly couriered heroin for the appellant.

63 All of the foregoing considerations paint a picture of Vinh Phan, and of his true relationship with the appellant, that is quite remarkably at odds with the corresponding picture painted at the appellant’s trial.

64 There, and as previously herein explained, Vinh Phan’s evidence was the back-bone of a Crown case that the appellant was guilty of murder by reason either of his having shot Jimmy Jin or by reason of his having been an adherent to a common unlawful enterprise of which the objective was either the killing of Jimmy Jin, or some other unlawful objective to which the killing was incidental in the requisite legal sense.

65 It is true that at the time of the trial of the appellant the learned presiding Judge and the learned Crown Prosecutor both gave express warnings to the jury of the care with which Vinh Phan’s evidence needed close scrutiny before it was accepted as evidence upon the basis of which it would be safe to convict. It remains, nevertheless, the case that the Crown relied upon Vinh Phan’s evidence; and invited the jury to accept it to the extent necessary to support a finding of guilt.

66 Much the same thing can be said about Jason Hanser, although his evidence did not have, of itself, the potential importance of Vinh Phan’s evidence; and albeit Mr. Hanser was mentioned in the statement of facts only as the person who had bought the yellow Commodore; and who had thereafter driven the appellant and Vinh Phan to and from the laneway in which the shooting took place.

67 Fourthly, it is undoubtedly the case that the Crown led the evidence of Vinh Phan, and of Jason Hanser, in a way that must have conveyed to the jury that the Crown, notwithstanding obvious reservations about those witnesses, but especially about Vinh Phan, was putting the two witnesses forward as witnesses whose evidence could be accepted in part only, if that was the view of the jury, but that such part of their evidence as would suffice to support a finding reached beyond reasonable doubt of the appellant’s guilt of murder should in fact be accepted.

68 All of the foregoing matters are, I think, apt to make one feel an instinctive discomfort about the way in which the Crown dealt with, in particular Vinh Phan, from the time of his trial and conviction to the time of his being called as a major witness for the Crown at the present appellant’s trial.

69 The question now to be decided is whether that instinctive discomfort should harden into a finding by this Court that the appellant’s trial was fundamentally flawed in the way now submitted by the appellant.

70 To the contrary are the following considerations.

71 First, Greg James J, before whom the appellant pleaded guilty to the accessorial charge, had no authority to reject, of his own motion, the plea: see Maxwellv The Queen (1996) 184 CLR 501 per Dawson and McHugh JJ at 512.9; 514.1-514.5.

72 Secondly, the appellant was represented at his trial by counsel well experienced in the conduct of defence cases in criminal trials. Counsel did not ask, either after Vinh Phan and Jason Hanser had given their evidence, or at the conclusion of the Crown case, for a discharge of the jury upon the basis that the trial had irredeemably miscarried in the way that is now suggested; or, indeed, in any other way.

73 Thirdly, Vinh Phan, by the time his cross-examination had concluded, had admitted having told lie after lie in interview after interview with investigating police.

74 Fourthly, the jury was told in plain and vigorous terms of Vinh Phan’s antecedent history. It suffices to cite the following extract from the closing address of learned counsel for the appellant, (who was, it should be noted, not counsel for the appellant in this Court);

“You see, the Crown posed the question that in fact you could put this proposition that my client fired the three shots while he was sitting in the front seat. There are two shots in the back of the deceased, apart from the shot in the side. What is one going to say, he has leaned all the way around the back, stretching his hand like this and shooting the deceased? This is what the Crown hopes you believe. My submission to you, if you believe that, you will believe in fairies.
In relation to this case, as regards to Vinh, his Honour will give you directions in relation to how you are going to assess his evidence. Vinh, who you heard, was charged with the murder and he was sitting in the back seat. It might have been a logical thing in relation to the situation, but eventually he got a retrial, came up for the murder again, then boy, he was suddenly an accessory after the fact to murder.
On Vinh’s evidence, even as he gave it in this trial, how an accessory – you have got to assess – after the fact, you have to assess someone, that is part of the law, that is why there is an accessory after the fact. If you in fact know someone has committed a crime, and you take him into your house so that the police will not get him, you are assisting him.
What did Vinh do to assist? As I understand his evidence, he had a wound to his head. He was taken by the accused home to Atherton Street, and went to the doctor. According to him, he did not know what happened. In relation to that, it is my submission as regards to the joint enterprise and the Crown’s other assertion against the accused, he wants a bob each way.”

75 Fifthly, the learned trial Judge gave the jury careful warnings about both Vinh Phan and Jason Hanser. It is true that the appellant contends that the warnings were inadequate, a matter that will require further consideration later herein. But it cannot be gainsaid that warnings, in clear and emphatic terms were in fact given.

76 Sixthly, the accused’s own case at trial, vouched for by his own oral evidence, was that he had indeed fired a shot, at close range and inside the relevant motor vehicle, into Jimmy Jin; but that his action should not be held to be criminally culpable because it had been done in self-defence. His case in those respects was left to the jury in a way that did not attract an application for redirections.

77 It seems to me that when fair account is taken of the six foregoing considerations, then any initial attraction in the appellant’s present argument is clearly outweighed.

78 I would not, therefore, uphold Ground 1 in what I might call its expanded form. As to the different question whether Ground 1 as originally argued in the appellant’s written submissions should be upheld, there can be no answer until after the remaining grounds of the conviction appeal have been considered.

The Conviction Appeal : Ground 2

79 The ground is:

“The verdict was unreasonable.”

80 The relevant legal principles are established by the decision of the High Court of Australia in M v The Queen (1994) 181 CLR 487. So much is well settled law, and was reaffirmed by the High Court in MFA v The Queen [2002] 213 CLR 606.

81 The basic principles, taken from the joint majority judgment in M, are as follows:

“Where, notwithstanding 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.”
“If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person who’s been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.”

82 The application of those principles in a particular case must be undertaken with a proper judicial restraint. That point is made in the following way by McHugh, Gummow and Kirby JJ in paragraph 59 of their joint judgment in MFA:

“Ultimately, the additional formulations exist only to assist courts of criminal appeal to discharge their statutory functions. Those functions are stated, relevantly, in s 6(1) of the Act. In the end, that sub-section is designed to afford a mechanism against a prospect that our community and its courts continue to regard as intolerable, namely that an innocent person has been wrongly convicted upon unreasonable and unsupported evidence and has thereby suffered a miscarriage of justice. The interpretation and application of the sub-section must always keep that purpose in mind. But it involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials.” [emphasis added; footnote omitted]

83 The thrust of the appellant’s submissions concentrates, again, upon the perceived inadequacies of Vinh Phan’s evidence. It is submitted that Vinh Phan was “a confirmed liar with a huge incentive to lie”, as, in my opinion, was plainly the case. It is submitted that the Crown case, regardless of how it was put, “depended on the jury accepting the evidence of Vinh pointing to blame of the accused, but rejecting at the same time any version that he gave supporting the accused acting in self-defence”.

84 I am unpersuaded by the appellant’s submissions on this ground of appeal.

85 The appellant, as previously herein noted, admittedly pointed at Jimmy Jin a firearm that he knew to be loaded; and he discharged that firearm at Jimmy Jin at a relatively close range. It would follow normally that he could not have so fired at Jimmy Jin without an intent either to kill or to inflict grievous bodily harm. The appellant did not dispute the forensic evidence that any one of the three shots fired in total into Jimmy Jin would have killed him. The exculpatory explanations offered by the appellant were that he had acted in self-defence, or accidentally as a reflex action upon hearing other shots. (I leave aside for present purposes the appellant’s unsuccessful attempt to have provocation left to the jury. It will be necessary to say later herein something more on that topic.) Once that proposition was rejected by the jury as a reasonable possibility, then it was, in my opinion, inevitable that the jury would find the appellant guilty of murder.

86 That it was in fact open to the jury to reject self-defence seems to me to be indisputable. The jury might indeed have come to that conclusion by relying in part upon the evidence of Vinh Phan. But the jury could have come to the conclusion upon the basis that having seen and heard the appellant himself, the jury simply did not accept him as a witness of truth; or simply did not accept that there was a reasonable possibility that his exculpatory version of events was honest and reliable.

87 I have done my best to assess the trial evidence with the caution called for by MFA. Having done so, I conclude that it was entirely open to the jury to be satisfied that the appellant did not shoot Jimmy Jin in self-defence, but deliberately and with the intent appropriate to the crime of murder. I do not conclude that there is a significant possibility that the appellant is an innocent man who has been wrongly convicted.

88 I would not uphold Ground 2.

The Conviction Appeal : Ground 3

89 The Ground is:

“The trial Judge erred in admitting into evidence a letter.”

90 On 16 February 1998 investigating police conducted a lawful search of, relevantly, the appellant’s bedroom. They located in the wardrobe a number of documents. One of them was a handwritten letter addressed to the appellant. The letter was written in Vietnamese; and proved to be a letter that had been written to the appellant by his brother, who was himself then in gaol.

91 The letter, and an uncontroversial translation of it, became over objection Exhibit U at trial. Two paragraphs in particular are here relevant. They read:

“As for doing business outside, just do it slowly, is no need to rush. If you have valuable things, entrust them to Eldest Brother for safe keeping. If my wife needs to know anything, just let her know. I have told ( tell ) (*) her many things. Left outside, there are only two of you. If anything comes up, you’d better ask each other’s opinion and do not treat it lightly, you hear? It is because you are very stubborn, but nowadays, things are not like before.
You shouldn’t cause any further problems. If it can be resolved peacefully, do it. If there is any problem, ask other people at home, IVAN, VINH. Do not do anything by yourself, you hear? If you love me you’d better listen to me. Out there, whenever you go to meet JIMY , go in pair (and with licence . No matter where you go, it is the same. Remember that! Take turns to do the work. Be careful about the house, do not go out too much, during this period of time keep a look-out ( dog ) #). They are tailing you a lot, you see. If it is not calm at any time, talk to Eldest Brother to seek help from him.”
(Note: The underlined text was written in English in the original letter. The reference “( dog )” is a slang reference indicating the police or a police officer.)

92 The learned trial Judge delivered a short judgment explaining his Honour’s decision to admit the document. His Honour said:

“There is a deal of evidence which suggests that the accused and Jimmy were dealing in drugs and evidence that suggests one may have been the supplier and the second the person supplied. The letter itself seems to be largely one of advice as to how the accused should conduct his affairs and arguably business affairs. Certainly the inference is open the business may not have been a legitimate one.
The Crown suggests that the word “Jimmy” refers to the victim and that is clearly an inference open. According to the interpreter the word “dog” is slang to indicate the police or a police officer. The Crown submits that the word “licence” is or may be regarded by the jury as being a euphemism for a firearm or perhaps a weapon.
There is evidence in the case the accused did not have a driver’s licence and nothing to suggest that he may have had any other sort of licence and I have difficulty in conceiving of one which would be necessary or appropriate for any dealings between him and the deceased. It seems to me that the letter does fulfil the terms of relevance within the provisions of the Evidence Act and that it is open to the jury to regard the passage which I have quoted as, firstly, a warning, and secondly, advice to take some weapon with him.”

93 The present ground challenges the correctness of that decision of his Honour. The appellant’s basic submission in support of the ground is put clearly and succinctly in the appellant’s written submissions:

“The Crown pressed the admission of the letter on the basis that it could be inferred that ‘licence’ meant gun. There was no other evidence of usage of the word in this way and no motive was suggested by the Crown for the killing.
It was pure speculation that the letter could have that meaning or the accused have followed that advice. However the Crown used it as an important part of its circumstantial case involving a common enterprise and pre-planning.”

94 I would not uphold that challenge.

95 The question for his Honour was one of relevance as defined in section 55 of the Evidence Act 1995 (NSW). That definition is very widely expressed. I adhere to what I said on that topic in R v Vinh Le [2000] NSWCCA 49 at paragraphs 18 and 19. Applying that analysis of principle to his Honour’s ruling, I am unable to see any error in his Honour’s reasoning.

The Conviction Appeal : Ground 4

96 The Ground is:

“The trial Judge erred in leaving common enterprise to the jury.”

97 Prior to the commencement of the summing-up, the learned trial Judge had a lengthy discussion with counsel about various aspects of what his Honour was proposing to put to the jury, with emphasis upon various written directions of law which his Honour was intending to give to the jurors. During the course of that discussion the following interchanges occurred:

“HIS HONOUR: …………………………… What about joint criminal enterprise?
CUSACK: I have some difficulty with that. The Crown says the joint criminal enterprise, joint criminal enterprise to do what? According to our case the joint criminal enterprise to buy a gun but, apart from that, then the two they diverge. There is no evidence of any sort of enterprise between my client and Vinh.
HIS HONOUR: Except that they were both there.
CUSACK: Yes, I concede that.
HIS HONOUR: The deceased was shot, they both had guns. On your client’s story they both fired guns.
CUSACK: Yes.
HIS HONOUR: If you reject the self-defence part of your client’s advice why isn’t there enough there in what happened though for a joint enterprise? They set up a meeting or a meeting was set up with the deceased, they got in a car with him, they shot him.
CUSACK: But the difficulty with that is that the joint criminal enterprise was not to shoot him, the joint criminal enterprise was to buy a gun illegally.
HIS HONOUR: I know that is what he says, I am not leaving felony murder to the jury. The question is whether there was a joint criminal enterprise to shoot him.
CUSACK: What I am is on the evidence there is I submit no evidence to say that there was a joint criminal enterprise between my client and Vinh to shoot the deceased.
HIS HONOUR: What about putting aside your client’s claim of self-defence?
CUSACK: I am putting that.
HIS HONOUR: They set up a meeting, they meet him in a car, they both had a gun and both shoot him.
CUSACK: They both had guns after the deceased has supplied the guns.
HIS HONOUR: That is what your client says. The jury may not believe that.
CUSACK: I know that but the jury still have got to go on the evidence.
HIS HONOUR: The criminal enterprise, I appreciate that, yes, but still it seems to me that the jury can still find on the basis of what your client said, excluding bits of it, that there was such an enterprise.
CUSACK: I submit that is getting down to the basis of inviting the jury to speculate rather than go on evidence, that is the joint criminal enterprise, and that is my submission in relation to that. That is inviting speculation rather than evidence. Those are my submissions in relation to that, your Honour.
CROWN PROSECUTOR: I would suggest that it is certainly open to the jury from the circumstances of what occurred for the reasons your Honour just explained, they both going there, the fact there were two gunshot wounds, two different angles on one view of the evidence. Certainly the accused Vinh did not accept the – sorry, the man Vinh didn’t accept the version put forward by the accused as to a number of things that happened in the car, your Honour, and in the Crown’s submission the jury even if they don’t know the specifics of what occurred in the circumstances of what we have here the objective evidence the gunshot wound and the(y) clearly point to a joint criminal enterprise. What we are looking at here you are never going to get someone to stand up and say there was a joint enterprise, you look at the surrounding circumstances and that is what should be done here.
HIS HONOUR: Your case in that respect is a circumstantial one, is it not?
CROWN PROSECUTOR: It is circumstantial. I would have to accept that in relation to that particular point.
HIS HONOUR: Do you want to say anything more?
CROWN PROSECUTOR: No I don’t.”

98 The appellant submits that “there was no evidence from which the jury could properly draw an inference that there was a common enterprise between… (the appellant) … and Vinh to kill the deceased”.

99 The written submissions of the Crown crystallise at paragraph 52, and as follows, the essence of the Crown’s circumstantial case of joint criminal enterprise:

“52. The respondent submits that the combination of the entreaty of the brother to the Applicant that he go armed and in company to any meeting with the Deceased, the concessions by the Applicant that the circumstances of the meeting were that he was both armed and in company, that he had fired the last of the three shots, that Vinh had fired the first two shots, the location of the wounds on the Deceased, the timing of the gunshots, the timing of an discrete location for the meeting, the proximity of the yellow Commodore and the presence in it of a driver were compelling features of the evidence that indicated that the Applicant had shot the Deceased as part of a joint criminal enterprise that he entered into with Vinh and not in self defence.”

100 It will become relevant to consider in connection with Ground 5 in the conviction appeal the detail of his Honour’s directions on joint criminal enterprise. It suffices for the present to note the following portion of his Honour’s written directions:

“(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.”

101 There is nothing controversial about those particular directions. Applied to the whole of the evidence at trial, the directions seem to me to support the thrust of the Crown’s submissions in paragraph 52 as quoted above.

102 The submissions of both the Crown and of learned Senior Counsel for the appellant have much to say about the putative probative value of the evidence concerning the acquisition of the yellow Commodore to which mention has been made earlier herein. I do not now take time to consider the detail of these submissions because in my opinion, to exclude that particular evidence from present consideration would not alter my view of the persuasiveness of the reasoning in paragraph 52 of the Crown submissions.

103 I would not uphold Ground 4.

The Conviction Appeal : Ground 5

104 The Ground is:

“The trial Judge erred in his directions on common enterprise.”

105 The directions were partly written and partly oral.

106 The written component was:

“ ”Joint Criminal Enterprise
(1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused.
“(2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime.”
(3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required may be sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime.
(4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.”

107 These directions give precise effect to the guidance given by this Court, (Hunt CJ at CL, McInerney and Sully JJ), in Reg v Tangye (1997) 92 A Crim R 545 at 556 – 557 per Hunt CJ at CL. They are, as far as they go, correct in principle.

108 The appellant submits, however, that the directions do not go far enough in that “they were insufficient to bring home to the jury that they had to be satisfied that there was a common enterprise afoot to kill the deceased”.

109 That submission is plainly correct in the sense that the written directions do not attempt any definition of what actual case of joint criminal enterprise was being said by the Crown to be established, conformably with the stated principles, by the entirety of the relevant evidence at trial. That made it very important that the bare written directions be adequately related, in the oral directions, to the relevant evidence. Before turning to a consideration of the oral directions which were actually given, it is useful to recall the following passage from the judgment of Hunt CJ at CL in Tangye:

“The Crown needs to rely upon a straightforward joint criminal enterprise only where …………………… it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This court has been making that point for years, and it is a pity that in many trials no heed is taken of what has been said.” [92 A Crim R at 556]

110 And see to the same effect per Wood CJ at CL in paragraph 65 of his Honour’s judgment in Vinh Phan’s appeal.

111 When the learned trial Judge came to give his Honour’s oral directions, the situation at the trial was this:

[1] There was evidence, namely evidence given by Vinh Phan, from which if accepted it might be inferred rationally that all three shots which were fired into Jimmy Jin had been fired by the appellant.

[2] There was evidence from the appellant himself that he had fired one shot at Jimmy Jin. It was well open to the jury to accept that part of the appellant’s evidence.

[3] There was no suggestion that the shot so fired was not one of the three shots which the undisputed forensic evidence showed to have been fired into Jimmy Jin. As earlier herein noted, the undisputed evidence was that any one of those three shots would have been fatal.

[4] The appellant’s case was that the only shot fired by him had been fired in self-defence.

[5] The Crown case to the contrary was that self-defence was negatived by a body of circumstantial evidence from which the only rational conclusion was the existence of a joint common enterprise between the appellant and Vinh Phan to kill Jimmy Jin.

[6] Such a joint criminal enterprise to kill Jimmy Jin could have occurred, relevantly, in either of two ways:

6.1 By the formation of the necessary agreement or understanding prior to the appellant and Vinh Phan getting into Jimmy Jin’s vehicle; or
6.2 By the formation of the necessary agreement or understanding at some time after they had got into the vehicle.


[7] There was no direct evidence from which it could be rationally inferred that both the appellant and Vinh Phan had gone, both already armed, to the meeting with Jimmy Jin. There was evidence, namely the letter Exhibit U, from which it could be rationally inferred that the advice to take care to have a “licence” was in fact advice to the appellant either himself to go armed to any meeting with Jimmy Jin, or to take to any such meeting an armed escort. And it was, of course, open to the jury to reject entirely the appellant’s evidence about the gun transaction with Jimmy Jin, in which case it must have followed that either or both of the appellant and Vinh Phan had been armed before entering Jimmy Jin’s vehicle.

[8] There is evidence from the appellant that he and Vinh Phan had been armed by Jimmy Jin shortly after they got into Jimmy Jin’s vehicle. There is ample evidence to support a rational inference that both the appellant and Vinh Phan had fired their respective weapons at Jimmy Jin; and that each of the second and third shots had been discharged within about a second of the preceding shot. The jury needed to be reminded that it was a live issue for them that were they to make the findings mentioned in the two preceding sentences, they would need to consider whether it was a reasonable possibility that, as his Honour put the point to the jury: “………….. they just happened to shoot at the one time within seconds or so of one another in circumstances not coming within the definition of joint criminal enterprise ……………”

112 The learned trial Judge did not analyse the matter in the way that has been done in the points [1] – [8] above. His Honour relied upon his written directions about joint criminal enterprise, adding very little by way of expanding upon those directions. At one point in the summing up, and having reminded the jury about the letter, Exhibit U, his Honour said:

“Now the accused did meet the deceased in company, in the company of his friend and one might add business associate, both were armed, and you might infer from the evidence of Dr. Little and Detective Grima, both shot the deceased within a second or so of one another.
Now that participation by both of them in shooting the deceased is quite consistent with a joint criminal enterprise.”

113 The appellant submits that there was no evidence to support a finding that “both the accused and Vinh Phan went to meet the deceased armed”. For the reasons explained in point [7] above, I would not accept that submission.

114 Having read and considered the summing-up I am not persuaded that Ground 5 has been made good. I think that the essentials of the analysis in the points [1] – [8] above were in fact covered in substance and sufficiently to avoid a mis-trial. I am strengthened in that conclusion by the fact that experienced trial counsel sought no re-directions.

The Conviction Appeal : Ground 6

115 The ground is:

“The trial Judge erred in his directions to the jury concerning the witnesses Vinh and Hanser.”

116 The directions extend over pages 18 – 23 of the summing-up.

117 They begin with a warning that as to each of Vinh Phan and Jason Hanser: “………… his evidence may well be unreliable, and you should exercise great care before you accept it, and in your decision as to what, if any, weight you should give to it”.

118 His Honour then drew particular attention to aspects of Vinh Phan’s situation that raised a real prospect of unreliability:

· “There is clear evidence that he was a person criminally concerned in the offence with which the accused is charged.”

· “He was clearly a suspect in respect of the deceased’s death.”

· “His undertaking to give evidence ………… will have been taken into account and probably resulted in a lower sentence than he would have received had he not given such an undertaking.”

· “Vinh is clearly a person who is prepared to lie when it suits his interests.”

119 In connection with each of these points his Honour gave the jury a clear and simple explanation of why the point called for great caution in evaluating Vinh Phan’s evidence. I see no error in anything thus explained by his Honour.

120 His Honour then turned to the position of Jason Hanser. His Honour told the jury that he was warning them about Jason Hanser’s evidence because of “only one matter and that is that there are grounds to think that he also might have been criminally concerned in the offence with which the accused has been charged”.

121 His Honour reminded the jury that Jason Hanser had acknowledged that “after reading or hearing in the media of the deceased’s death, he realised what had happened, that he set about cleaning blood from the car”; and observed, correctly in my respectful opinion, “that action alone would go a long way to making him an accessory after the fact”.

122 It is the case, as the appellant now complains, that his Honour then added: “of course his involvement may have been much greater if, during or before the events of 11 July he had some knowledge of what was to occur”. I think that it is fair to say that this observation was wholly speculative; but I think, also, that there was no sensible risk to the appellant in the light of the remarks which his Honour at once added:

“Thus my remarks about persons involved wanting to shift blame on to others and to construct untruthful stories which tend to downplay their own involvement and play up the part of others, and that such a person may feel locked into a story which has been given to police, should be again borne in mind.
Let me emphasise again, however, that I do not give the warning because of any view which I have formed concerning the evidence of these two persons. I am by no means saying that you should not act on the evidence of these persons which, particularly in the case of Mr. Hanser, is largely to a degree corroborated, indeed in many respects by the accused himself. I wish merely to warn you that in the (case of) each of those persons, the evidence may be unreliable, you should exercise great care before you accept it and in your decision of what weight you give to it.
Finally, under this heading let me add this; by referring to the matters that I have, I don’t mean to suggest that other matters bearing on the reliability or credibility of those two witnesses should not be taken into account in addition to the matters to which I have referred. You consider all of the normal issues that arise when a witness gives controversial evidence.”

123 His Honour’s warnings were given pursuant to section 165 of the Evidence Act which provides, in precise terms, that it is not necessary that a section 165 warning be given in “a particular form of words”.

124 The present issue for decision is not whether this or that fine debating point can be taken about the terms employed by his Honour. The relevant question is whether what his Honour said, viewed with practical common sense in the context of the trial as actually conducted, can be regarded as having done in substance what section 165 requires. In my opinion it can and should be so regarded. Experienced trial counsel who took no objection and sought no re-direction seems to have been of that view.

125 I would not uphold Ground 6.

The Conviction Appeal : Ground 7

126 The Ground is:

“The trial Judge erred in his ruling on self-defence.”

127 The ruling to which the ground refers is a ruling that section 423(2) of the Crimes Act which came into operation on 22 February 2002 and which effected significant alterations to the common law of self-defence, applied to the trial of the appellant. The new statutory regime does not apply to an offence “if proceedings for the offence, (other than committal proceedings), were instituted before ………………. .” 22 February 2002.

128 The appellant was first arraigned formally on 7 September 2001 before Kirby J. The indictment charged the appellant with the offence for which he subsequently stood trial.

129 In those circumstances the law is as stated by this Court, (Spigelman CJ, Bell J and Miles AJ), in Reg v Taylor [2003] NSW CCA 194. The law as so stated is plainly to the contrary of the present submission of the appellant.

130 I would not uphold Ground 7.

The Conviction Appeal : Ground 8

131 The Ground is:

“The trial Judge erred in his direction on self-defence.”

132 The learned trial Judge’s written directions on self-defence were:

“So far as the accused is concerned, again his credibility needs to be assessed. Because he has given you an account of events and if you regard that account as giving rise not to a certainty, not to a probability but even a reasonable possibility that he is not guilty, that the defence of self-defence exists, then you must acquit him. So if his evidence is enough to even create that possibility in your mind, then he is entitled to be acquitted. He did not have to go in the witness box and subject himself to cross-examination, though having elected to come up here, his evidence remains to be assessed like that of any other witness.”

133 The appellant submits that “(t)he circumstances referred to in the written directions, while said not to be exhaustive, were likely to have been so regarded”. This is, in my opinion, pure speculation.

134 The written directions defined as follows what the Crown had to prove beyond reasonable doubt on the issue of self-defence:

“that at the time the act was done, the person doing it did not believe on reasonable grounds that it was necessary in self-defence or the defence of another to do what was done.”

135 The directions instructed, in a separate section, that when considering the questions implicit in that definition, “all of the circumstances relevant to that question should be considered”.

136 The oral directions added somewhat to the written material. The appellant complains of two passages, in particular, of the oral directions.

137 First, the Judge told the jury that the belief in fact of the doer of the relevant act causing death was:

“………… objective. It involves your considering whether there were any reasonable grounds for any belief that person may have had, or more precisely, whether the Crown has shown that there were no reasonable grounds for any such belief.”

138 It is submitted that this direction was “at the very least ………… confusing”.

139 I do not agree. The words commencing “more precisely” seem to me, with respect to his Honour, to put a simple proposition and to put it both clearly and correctly.

140 Secondly, the Judge told the jury, speaking of the credibility of the appellant:

“So far as the accused is concerned, again his credibility needs to be assessed. Because he has given you an account of events and if you regard that account as giving rise not to a certainty, not to a probability but even a reasonable possibility that he is not guilty, that the defence of self-defence exists, then you must acquit him. So if his evidence is enough to even create that possibility in your mind, then he is entitled to be acquitted. He did not have to go in the witness box and subject himself to cross-examination, though having elected to come up here, his evidence remains to be assessed like that of any other witness.”

141 The appellant submits that these directions obscured “the Crown’s need to negative the defence on the whole of the evidence including that of Vinh”. I do not agree.

142 By the time his Honour reached, late in the summing-up, this point in his directions to the jury his Honour had already correctly directed the jury in writing on the onus and standard of proof in connection with self-defence; and had directed the jury that in connection with any element of self-defence the jury should “look at all the circumstances”; “should consider all that the evidence reveals”; and “should bear in mind that issues of self-defence commonly arise in circumstances of considerable stress when there is little opportunity for calm and reflection”. In my opinion the combined effect of these directions did not obscure anything that needed to be made plain. No application for re-directions was made at the trial.

143 In addition to the foregoing particular directions the appellant submits that “there was no application of the directions to the facts of the case as established by the evidence, except for some attempt to refer to passages of the evidence, taken in isolation, to cast doubt on the accused and Vinh’s evidence”.

144 In my opinion that is not a fair criticism of the summing-up read fairly as a whole and in conjunction with the written directions.

145 I would not uphold Ground 8.

The Conviction Appeal : Ground 9

146 The Ground is:

“The trial Judge erred in refusing to leave provocation to the jury.”

147 On the day preceding that on which final addresses began the learned trial Judge raised with counsel, among other things, the question whether provocation should be left to the jury. The following interchanges are recorded:

“HIS HONOUR: Now, provocation, why should I leave that to the jury, what is the evidence of it?
CUSACK: If one looks at section 23 I submit there is enough evidence to go to the jury on that particular section (read). Loss of self-control on the part of the accused, gestures toward or affecting the accused. We have evidence of that from both Vinh and, particularly, the accused.
HIS HONOUR: The deceased made a few insults.
CUSACK: That’s right, but then hit the accused in the face. Now, at that stage the accused was provoked into in fact attempting to hit the deceased and the next thing which causes the provocation is the producing of a gun and that factor of the gun, though not properly identified by Vinh, is somewhat corroborated by Vinh because he said he saw something in the deceased’s hand. He doesn’t identify a gun but I submit that is enough to cover that section.
HIS HONOUR: Your client did not give any indication of the loss of self-control.
CUSACK: He said he panicked, he was angry and his words were such he lost his self-control when this person hit him. It is not, I would submit, the greatest but the evidence I submit gets over the hump. It is not the strongest provocation but on the evidence before the Court I think there is enough and I would be asking your Honour to direct the jury as to that. I can’t take that any further.
HIS HONOUR: Mr. Crown?
CROWN PROSECUTOR: I have the same problem your Honour does, I don’t see any evidence to found it. Because the accused said he was startled whether there was a need for a direction relating to accidental discharge, in other words, he accidentally, did not deliberately intend to shoot the deceased, but having heard the shot from the back of the car, he then accidentally discharged the gun.
CUSACK: I am going to go for that proposition.
HIS HONOUR: Let’s not make it more complicated, but you say there is no basis on which I should leave provocation to the jury?
CROWN PROSECUTOR: The accused gave evidence and he did not give any evidence he was provoked. I just didn’t seem to hear, there didn’t appear to be any loss of self-control, he didn’t suggest he lost his self-control. That is my present reaction to it.
HIS HONOUR: That is also mine. I will reflect on it overnight but my present inclination is not to leave self-control to the jury. I think you are entitled to know my final position before you address and I will let you know in the morning, Mr. Cusack.”

148 The transcript for the following day does not record any further interchanges; any ruling by his Honour; or any request from the appellant’s counsel at trial for such a ruling.

149 It is appropriate to consider the present ground of appeal in the light of the way in which the trial was actually fought out. The appellant’s true case was that he had fired a shot, not because he had been provoked in the requisite legal sense to do so, but because he had been startled into doing so by the preceding two shots fired, on the appellant’s case, by Vinh Phan. The appellant’s true alternative position in the event that his own admitted shot was found to have been deliberate and not accidental, was not that he had fired deliberately in response to a legally mitigating provocation, but that he had fired deliberately in self-defence.

150 It seems to me that those two issues: an accidental shooting; and a shooting in self-defence in the requisite legal sense; were the true issues raised by the appellant at the trial, and that provocation, which was as counsel conceded “not ……… the greatest” point, was a resourceful forensic afterthought that was in effect abandoned overnight.

151 I would not uphold Ground 9.

The Conviction Appeal : Ground 10

152 The Ground is:

“The trial Judge erred in his directions on motive.”

153 The learned trial Judge said this:

“Now one factor which is commonly relevant to consider in any murder trial is the topic of motive. People tend not to act unless there is some reason to do so, though having said that, I make it clear that there is no necessity for the Crown to establish any motive, and here I think it fair to say that there is no clear motive for the deceased’s death established by the Crown although there is evidence which, if you accept it, probably precludes one from saying that there clearly was no motive. It is common ground the deceased was a drug dealer. Ms Barghacoun, the girlfriend of Mr. Hanser said the deceased was her ex-husband’s best friend and her daughter’s Godfather – from which one may assume she knew him – and that both the deceased and the witness’ ex-husband were dealing in heroin, or had been dealing in heroin in fairly large amounts.
At one time her husband owed the deceased some $50,000 and it seemed that the deceased extracted that with threats of force. She had seen the deceased with thousands of dollars on him.
Mr. Pang gave evidence that he noticed when in the deceased’s company, the latter seemed to have a fair bit of money on him and on more than one occasion the deceased spent more than $500 a day.
Now, those matters just suggest that the deceased may or may have been thought to carry fair amounts of money. They give rise to the possibility that he may have extended more than the $6,000 credit to the accused. Certainly the evidence doesn’t go far enough for you to say he did, but as I put it, the evidence probably precludes one from saying that, looked at from the point of view of the Crown, there could not have, or could not or was not a motive. Equally it is fair to say that the Crown has not clearly established a motive.”

154 I confess that, with all proper respect to his Honour, I do not see why it was thought necessary to raise motive at all; or if raised, to say more than that motive was not a necessary legal element of the crime charged; and that the Crown case did not fail merely because the Crown had not identified, and then established beyond reasonable doubt, some particular motive for the only joint criminal enterprise upon which the Crown was relying, that is to say, a joint criminal enterprise to kill Jimmy Jin.

155 It is now submitted that the learned trial Judge’s observations about robbery “may have appealed to the jury and …… (may have been) ……used as a basis for convicting”. I consider this to be pure speculation. Counsel at trial did not apply to have the particular remarks either withdrawn or corrected. I am wholly unpersuaded that what was said might be thought sensibly so to have tainted the whole of the summing-up as to have caused a miscarriage of justice.

156 I would not uphold Ground 10.

The Conviction Appeal : Conclusions

157 None of the relevant grounds has been made good. The appeal against conviction should be dismissed.

The Sentence Application

158 There are five broad submissions now made by the appellant by way of challenge to the sentence passed upon him by Hulme J. They are:

[1] that the sentence is, overall, unduly harsh and severe;

[2] that the sentencing Judge gave no, or no sufficient, weight to the appellant’s youth;

[3] that the sentencing Judge did not pay any, or any proper, regard to the requirements of the law as to parity between the appellant and Vinh Phan;

[4] that certain nominated findings of fact were erroneous;

[5] that there was no proper basis for providing a non-parole period greater than 75 per cent of the head sentence.

159 As to parity, it seems to me to be unnecessary to make a detailed comparison of my own remarks on sentence when I dealt with Vinh Phan, and the remarks on sentence of Hulme J when dealing with the appellant. That is so because, in my view, the quashing of Vinh Phan’s sentence by the Court of Criminal Appeal renders that sentence of no practical effect thereafter. In the events which have happened, any comparison to be made in aid of a parity argument has to made between the appellant’s sentence and the markedly lenient sentence passed upon Vinh Phan by Greg James J. The appellant does not now set up that particular comparison.

160 As to youth, it is the case that, as the appellant submits, Hulme J took the view that the appellant’s case was one in which there was no entitlement “to mitigation of penalty on account of his youth”.

161 In the two immediately preceding paragraphs of his Honour’s remarks on sentence, Hulme J had referred to two decisions of this Court: Reg v Tran [1999] NSWCCA 109 and Reg v AEM Snr. [2002] NSWCCA 58. The former decision reaffirms the principle that “relatively little weight” should be given to the fact of the youth of the offender who conducts himself like an adult. The latter decision reaffirms the principle that in a case of really serious criminal conduct it will be “rare that the relative youth of an adult offender will be a reason for giving less weight to general deterrence than otherwise would be the case …………… .”.

162 I do not read these decisions, or the decision in Reg v Townsend and Cooper, (unreported; NSWCCA, 14 February 1995), to which the appellant points, as justifying the view that an offender in the appellant’s position is entitled to “no” mitigation by reason of his youth. His Honour did not find, and in my view could not fairly have found, that the appellant had comprehensively no prospects, or merely trifling prospects, of rehabilitation. His Honour did find, and it was in my opinion open to his Honour to find, that there was a proper need to factor in to the appellant’s sentence an element of general deterrence.

163 All of these factors go towards the carrying out of that so-called instinctive synthesis of which the authorities speak in the context of sentencing as an art rather than a science. If Hulme J meant to convey that he was making literally no allowance for the appellant’s youth, then I believe, with respect to his Honour, that such an approach was erroneous. I do not see that the authorities required any marked weight to be given to the matter of youth; but I do think that the authorities do require some sensibly limited mitigation on that account. Whether this calls for the actual intervention of this Court can be conveniently considered after the appellant’s remaining grounds have been reviewed.

164 As to the suggested particular errors, I observe:

[1] Hulme J found that the appellant’s previous history evinced a contempt for the law. Given that the appellant was, prior to his shooting of Jimmy Jin, an established drug trafficker; and given that on his own version of events the appellant went to the meeting with Jimmy Jin prepared to acquire proscribed weapons; I should have thought that this conclusion of Hulme J was well open to his Honour.

[2] Hulme J was not prepared to find beyond reasonable doubt that the appellant and Vinh Phan “had agreed to definitely kill” Jimmy Jin before meeting him. His Honour found that “there can be no reasonable doubt that both were prepared to do so” and I should have thought that what they both actually did gave support to the drawing of that inference.

His Honour found that the appellant “knew of ….. (Vinh Phan’s) ….. willingness to assist him in this regard” . I read this in the sense that the appellant took Vinh Phan with him, not simply to give Vinh Phan a recreational outing, but because he looked upon Vinh Phan as somebody who could be relied upon to support him should he need support at his meeting with Jimmy Jin.

His Honour found, finally, there was “an irresistible inference that they agreed …. …at least if circumstances were thought to warrant that course” to kill Jimmy Jin. If that means to convey that the appellant and Vinh Phan agreed, before they got into Jimmy Jin’s car, that they would kill him if necessary, then I would not myself see that finding as being open to be made, on the whole of the evidence, beyond reasonable doubt.

[3] Complaint is made of his Honour’s finding that “the offence was a cold-blooded execution of a business associate or supplier” . It is submitted that the finding was not open on the evidence; and was, as well, inconsistent with other findings.

I do not agree on either score.

Once self-defence and accident were rejected, then the killing was in my opinion capable of being described fairly as having been cold-blooded.

“Execution” is, I would agree, an unhappy choice of noun inasmuch as it seems to me to imply a degree and a duration of pre-concert which is not consistent with the inability to find a motive; and with the unwillingness to conclude that the two men were armed at the time they entered Jimmy Jin’s vehicle.

[4] Hulme J gave, by consent, consideration to some statistical material emanating from the Bureau of Crime Statistics & Research on the topic of shooting with intent. It was open, in my opinion, for his Honour to draw, as he did, from those statistics an inference that hand gun shootings had increased sharply in number between 1996 and 2001. From that premise his Honour proceeded to a conclusion that “the frequency with which offences of the general nature of that of which …..(the appellant)….. has been convicted occur, is a relevant consideration” .

I do not see any reason in principle why such a consideration might be thought irrelevant. Proper considerations of deterrence, general and special, to go no further, would suffice in my opinion to establish the contrary.

165 As to the non-parole period, the relevant legislation required that it be not less than 75 per cent of the relevant head sentence unless special circumstances justifying a shorter non-parole period were found and identified. Twenty years is 80 per cent of 25 years. There is no statutory requirement to find special circumstances in order to justify a non-parole period greater than 75 per cent of the head sentence. His Honour explained as follows his decision to exceed the 75 per cent proportion:

“I should record also that in this case I intend that the non-parole period should be greater than the usual proportion of 75% referred to in S44 of the Crimes (Sentencing Procedure) Act. Given the length of the terms involved, the period during which the relevant authorities may grant the Prisoner parole will be more than sufficient to fulfil the purposes of such periods and I regard the full and non-parole terms I will set as the minimum appropriate to reflect and fulfil the purposes and matters to be taken into account in sentencing.”

166 I see no error in that reasoning.

167 As to the over-arching submission that the sentence is unduly harsh and severe, the appellant points to “………….. circumstances where the sentencing Judge made a positive finding that one or probably both of the 2nd and 3rd bullets were fired by Vinh (ROS 3); did not make a finding that the appellant and Vinh entered the deceased’s car with weapons (ROS 20), nor that prior to the meeting there had been a definite agreement to kill the deceased (ROS 22), nor was there any motive established (ROS 32)”.

168 I take this submission to be one of covert error; that is to say, a submission that the sentence is in any event so far outside an appropriate range as to be indicative of something unparticularised having miscarried in the overall sentencing exercise.

169 I think that the practical way of dealing with that submission is to integrate it with the whole of the previous comments about the alleged particular defects in the appellant’s sentencing, and to ask whether a fair view overall suggests that some more lenient sentence than that imposed is warranted in law.

170 In trying to get a reliable sense of the current sentencing range for the crime of murder, I have had recourse to Roser and ors: Sentencing Law NSW Vol. 1. Between pages 60,001 and 60,032 of that publication there is a helpful overview of sentencing principles and outcomes in a range of cases of murder.

171 Reference is made to, inter alia, a decision of this Court in Reg v Toki [2003] NSWCCA 125, which is cited as authority for a proposition that “a sentence in excess of 20 years would be unusual where the killing was not premeditated unless the circumstances of the killing were very bad or there were other aggravating features”. I have been unable to locate a copy of Toki; and I proceed, therefore, upon the basis that this citation is accurate.

172 Of the various comparative sentences which are summarised on pages 60,013 – 60,032, I have had regard in particular to the summaries of the matters of Toki (supra); and of Irani [2002] NSWCCA 153.

173 Based upon that material, I have come to the conclusion that the sentence passed by Hulme J is manifestly excessive, having regard to his Honour’s limited findings of fact in connection with the objective gravity of the offence; and having regard to what has been said previously herein about some of his Honours findings of fact; and having regard to the need to take some account, however restrained, of the appellant’s youth.

174 In my opinion it would better accord with the current sentencing range to re-sentence the appellant to imprisonment for 20 years. I see no reason to depart from Hulme J’s apportionment in setting a non-parole period; and I would therefore fix a non-parole period of 16 years.

Orders

175 For the whole of the foregoing reasons, I propose the following orders:

[1] That the appellant be granted such an extension of time as is necessary to permit of his bringing his present appeal against conviction and his present application for leave to appeal against sentence.

[2] That the appeal against conviction be dismissed.

[3] That leave be granted to appeal against sentence.

[4] That the appeal against sentence be allowed; that the sentence passed at first instance be quashed; and that in lieu the appellant be re-sentenced to imprisonment for 20 years commencing on 5 October 2000 and expiring on 4 October 2020, with a non-parole period of 16 years commencing on 5 October 2000 and expiring on 4 October 2016, on which latter date the appellant will first become eligible for parole.

176 DUNFORD J: I agree with Sully J

177 HIDDEN J: I agree with Sully J

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