Tran v The Queen (No 1) - [2012] VSCA 283

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0109

PHILLIP TRAN
	Appellant
v
THE QUEEN	Respondent

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JUDGES	WEINBERG and BONGIORNO JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 and 27 July 2012
DATE OF JUDGMENT	23 November 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 283
CASE MAY BE CITED AS	Tran v The Queen (No 1)
JUDGMENT APPEALED FROM	R v Tran [2011] VSC 181 (Hollingworth J)

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CRIMINAL LAW – Appeal against conviction – Murder – Deceased severely assaulted in abandoned building – Evidence established that appellant was present in building at time of assault – Appellant allegedly admitted to three witnesses that he and other unidentified persons had ‘bashed’ deceased – Whether manslaughter should have been left to jury – Whether jury verdict unsafe and unsatisfactory – Appeal allowed – Evidence not capable of establishing role played by appellant in assault – Evidence did not exclude possibility that appellant lacked mens rea for murder – Evidence established that appellant was party to unlawful and dangerous act which caused deceased’s death – Conviction for murder quashed and judgment of conviction of manslaughter entered pursuant to s 277(c) of Criminal Procedure Act 2009 – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Dann	C Marshall & Associates
For the Crown	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:
BONGIORNO JA:
T FORREST AJA:

On 20 December 2008, Aaron Nidea, a 28-year-old man, was severely assaulted in an abandoned Telstra building in Napier Street, Footscray. His injuries, from which he later died, were consistent with his having been struck repeatedly on the head with a baseball bat.

The appellant was subsequently charged with Nidea’s murder and tried in the Trial Division of the Supreme Court. He was convicted and, on 6 May 2011, was sentenced to be imprisoned for 18 years. The trial judge directed that that sentence be served concurrently with a sentence he was already undergoing for unrelated offending. Her Honour fixed a new single non-parole period of 13 years. The appellant was granted leave to appeal against his conviction by Nettle JA on 14 September 2011 on the following grounds:

Ground 1The learned trial judge erred in not leaving manslaughter to the jury as a possible alternative verdict.

Ground 4 The verdict of the jury was unsafe and unsatisfactory.

Two other grounds argued on the leave application (Grounds 2 and 3) were rejected by his Honour and have not been pursued.
The Crown case

The Crown alleged that the deceased was a drug addict who, according to his former girlfriend, Cheren Goodchild, owed someone a substantial sum of money. The deceased knew the appellant and, on the day he was assaulted, had arranged, by telephone, to meet him in Footscray. The deceased borrowed his father’s car and drove to the Footscray Railway Station, which was close to the Telstra building. Telephone records established that between his leaving St Albans and arriving at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tran v The Queen (No 1)

Details

AGLC: Tran v The Queen (No 1) [2012] VSCA 283
Case: [2012] VSCA 283
Decision Date: 23 November 2012

CaseChat Overview and Summary

Tran has appealed against his conviction for the murder of a deceased person, who was found severely assaulted in an abandoned building. The appeal was heard and determined in the High Court of Australia. The primary issue before the court was whether the trial judge erred in not leaving the question of manslaughter to the jury. The appellant argued that the evidence did not exclude the possibility that he lacked the requisite mens rea for murder, and therefore, manslaughter should have been considered by the jury.

The court considered the evidence presented at trial and determined that while it was established that the appellant was present in the building at the time of the assault and had allegedly admitted to three witnesses that he and others had 'bashed' the deceased, the evidence did not definitively establish the role played by the appellant in the assault. Furthermore, the court found that the evidence did not exclude the possibility that the appellant lacked the necessary mens rea for murder. The court held that the evidence did establish that the appellant was a party to an unlawful and dangerous act which caused the deceased's death.

In light of the above, the court allowed the appeal, quashed the conviction for murder and entered a judgment of conviction of manslaughter pursuant to section 277(c) of the Criminal Procedure Act 2009. The court found that no point of principle was involved in the decision.

Orders