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12
Court of Criminal Appeal 4 June 2001

R v Phan

[2001] NSWCCA 29

Also reported as (2001) 53 NSWLR 480
Homicide
CRIMINAL LAW APPEALS APPEAL AGAINST CONVICTION MURDER DIRECTIONS TO JURY DISCRETION TO EXCLUDE EVIDENCE

Citation: R v Phan [2001] NSWCCA 29
Court: NSW Court of Criminal Appeal
Date: 4 June 2001
Judges: Wood CJ at CL; McClellan J; Smart AJ

Background

The appellant was convicted of murder following a trial before Sully J and a jury in the Supreme Court. The victim was shot three times while seated in a motor vehicle in an alleyway at Smithfield in July 1997. Expert evidence indicated that two firearms had been used, and the Crown's case was entirely circumstantial, with no eyewitnesses.

The prosecution advanced two alternative bases for the appellant's guilt. The first was that he fired one of the shots himself as a principal offender. The second was that he was present at the scene and assisted or encouraged a co-accused who fired the shot, making him a principal in the second degree (that is, an aider and abettor). The appellant maintained that his presence at the scene was accidental, that he was unconscious at the time of the shooting, and that he did nothing to assist or encourage the shooter.

The appellant was sentenced to fourteen years' imprisonment with a non-parole period of ten years and nine weeks. He appealed against the conviction on six grounds.

  • Whether the trial judge's failure to make a formal order under s 54 of the Jury Act 1977 (permitting the jury to separate) rendered the trial irregular
  • Whether a careless remark by the Crown Prosecutor in closing address about a possible drug-related motive so prejudiced the jury that it warranted discharge
  • Whether the summing up was unbalanced in favour of the Crown
  • Whether the trial judge was required to leave an alternative verdict of manslaughter to the jury
  • Whether the trial judge erred in admitting the appellant's post-arrest ERISP (electronically recorded interview) when the appellant had initially indicated he did not wish to participate
  • Whether the directions to the jury on liability as a principal in the second degree were legally correct

Decision

Ground 1 (Jury separation): The Court found that although a formal order under s 54 of the Jury Act 1977 is preferable, the trial judge's remarks on the issue were sufficient to constitute an implied order. No miscarriage arose from the absence of a formal direction.

Ground 2 (Crown Prosecutor's remark): The Crown Prosecutor's reference to a possible drug-related motive was described as careless and imprudent, but the trial judge responded with an explicit and strong corrective direction to the jury. The Court held that direction was sufficient to cure any prejudice.

Ground 3 (Unbalanced summing up): The Court found no imbalance in the summing up. If anything, it tended to favour the appellant. The trial judge had also clearly instructed the jury that they were the sole judges of the facts.

Ground 4 (Manslaughter direction): The Court held that manslaughter need not be left to a jury in every murder trial. There must be an evidentiary basis for it. Here, the case was fought as murder or nothing, and leaving manslaughter would have been purely speculative, potentially to the appellant's detriment.

Ground 5 (ERISP admissibility): The Court accepted that an initial expression of reluctance to be interviewed does not automatically preclude a suspect from later choosing to continue. The admission of the ERISP was not ideal, but because the interview added nothing to the earlier statements and the summing up addressed it adequately, its admission did not result in a miscarriage of justice.

Ground 6 (Principal in the second degree, directions): This ground succeeded and was determinative. The trial judge's directions on the second limb of the prosecution's case contained two significant errors. First, the directions did not adequately instruct the jury on the elements required to establish aiding and abetting, particularly given the defence case that the appellant was unconscious, present only accidentally, and did nothing to assist or encourage the shooter. Mere presence at the scene, without more, is not sufficient to establish liability as a principal in the second degree. Second, the trial judge directed the jury to consider whether "a reasonable mind would conclude" that the appellant associated himself with the shooting. The Court held that this formulation introduced an inappropriate objective test into what is a subjective inquiry. The relevant question is whether the accused intentionally assisted or encouraged the co-accused. That element must be proved beyond reasonable doubt, and the "reasonable mind" formulation risked diluting that standard. These errors gave rise to a substantial risk of a miscarriage of justice.

Orders Made

  • Appeal against conviction allowed
  • Conviction and sentence quashed
  • New trial ordered

Key Takeaways

  • Mere presence at the scene of a crime is not sufficient, on its own, to establish liability as a principal in the second degree (aider and abettor). The prosecution must prove beyond reasonable doubt that the accused intentionally assisted or encouraged the principal offender.
  • A jury direction that asks whether "a reasonable mind" would conclude that an accused associated himself with a crime introduces an impermissible objective standard. The test for aiding and abetting is subjective: did the accused intentionally assist or encourage the co-offender?
  • Manslaughter need not be left to the jury as an alternative verdict in every murder trial. An evidentiary foundation is required, and where the trial has been contested solely on the basis of murder or acquittal, leaving manslaughter may be inappropriate and potentially prejudicial to the accused.
  • An initial indication by a suspect that they do not wish to be interviewed does not, without more, require exclusion of the resulting ERISP. The Court of Criminal Appeal confirmed that each case turns on its own facts, including whether unfair pressure was placed on the suspect to continue.
  • Where the Crown cannot establish which of two accused fired a fatal shot, a direction on joint liability should require the jury to be satisfied beyond reasonable doubt that the accused either fired the shot or intentionally aided and abetted the person who did.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), Part 10A
- Evidence Act 1995 (NSW), ss 90, 138
- Jury Act 1977 (NSW), s 54

Cases:
- Wu (1999) 199 CLR 99
- Ketteridge [1915] 1 KB 467
- Maher (1987) 163 CLR 99
- Radju [2001] NSWCCA 103
- Hura [2001] NSWCCA 61
- Callaghan (1993) 70 A Crim R 350
- Gilbert [2000] HCA 15
- Schneidas (No. 2) (1981) 4 A Crim R 101
- Van Den Hoek (1986) 16 CLR 158
- Kerrie-Anne Clarke (NSWCCA, 31 October 1997)
- McAuliffe (1995) 79 A Crim R 229
- Osland (1998) 197 CLR 316
- Coney (1882) 8 QBD 534
- Allen [1963] 3 WLR 677
- Clarkson [1971] 1 WLR 1402
- Georgianni v The Queen (1985) 156 CLR 473
- Russell [1933] VLR 59
- Mohan [1967] 2 AC 187
- Clough (1992) 28 NSWLR 396