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Court of Criminal Appeal 21 December 2007

Duong Hai Nguyen v R, ATCN v R, Khanh Hoang Nguyen v R, Minh Thy Huynh v R.

[2007] NSWCCA 363

Also reported as (2007) 180 A Crim R 267
Assault & violenceHomicideFirearms & weapons
RANGE AND NOT SUBSTANTIALLY ABOVE MID THIRD OF TOTAL NON PAROLE PERIODS.

Citation: Duong Hai Nguyen v R, ATCN v R, Khanh Hoang Nguyen v R, Minh Thy Huynh v R [2007] NSWCCA 363
Court: Court of Criminal Appeal, New South Wales
Date: 21 December 2007
Judges: Mason P, Adams J, Smart AJ

Background

On the night of 6 January 2004, four men entered a billiard hall in Cabramatta in purposeful succession. The first man, who was armed with a handgun, proceeded through the premises to a rear courtyard where a birthday party was being held. He fired at least twice at close range, fatally striking a guest, Linda Huynh, in the chest and wounding another guest, Hien Duc Phan, in the arm. The fourth man in the group carried a concealed samurai sword. All four men fled the scene, and their movements through the hall were partially captured on CCTV.

The four appellants were each convicted in the Supreme Court before Hulme J of the murder of Linda Huynh and of maliciously inflicting grievous bodily harm with intent upon Hien Duc Phan. The identified shooter, the first appellant (Duong Hai Nguyen), was treated as the principal offender. The other three appellants were prosecuted on the basis of joint criminal enterprise liability, including extended joint enterprise.

Each appellant challenged his conviction and sought leave to appeal against the severity of his sentence. The appeals raised distinct but related grounds, including the admissibility of identification evidence, the adequacy of the trial judge's directions on extended joint enterprise, and the trial judge's failure to respond to a jury note.

  • Whether identification evidence had been wrongly admitted at trial
  • Whether the trial judge's directions on extended joint enterprise were adequate for the purposes of convicting the three non-shooter appellants of murder
  • Whether the trial judge's failure to disclose a jury note to the parties, and to answer the jury's request for clarification on joint criminal enterprise in murder and manslaughter, constituted a miscarriage of justice
  • Whether the shooter's conviction for murder was sound
  • Whether the sentences imposed on the shooter were excessive, including whether the murder was correctly classified as substantially above mid-range in objective seriousness

Decision

Identification evidence: The Court rejected the challenges to the admission of identification evidence brought by three of the appellants. The Court found the identification evidence to be strong, and concluded that no unfair prejudice arose from its admission.

Conviction of the shooter: The Court dismissed Duong Hai Nguyen's appeal against his murder conviction. As the man who fired the gun and led the group, he was correctly convicted as the principal offender. The identification evidence supporting his conviction was accepted as sufficient.

Jury directions on extended joint enterprise: The Court found that the directions given to the jury on extended joint enterprise were deficient. Extended joint enterprise arises where a co-participant contemplates the possibility that another party to the enterprise might commit a further crime (here, murder), and nonetheless continues to participate. The directions given at trial did not adequately explain the legal requirements for convicting the non-shooter appellants on this basis.

The overlooked jury note: During deliberations, the jury sent a note requesting further directions clarifying the definition of joint criminal enterprise in the context of both murder and manslaughter. This note was inadvertently overlooked by the trial judge and was never brought to the parties' attention or answered. The Court held that this failure, combined with the deficient directions, resulted in a miscarriage of justice for the three non-shooter appellants. New trials were ordered for ATCN, Khanh Hoang Nguyen, and Minh Thy Huynh.

Sentence for the shooter: The Court (Smart AJ, with Adams J agreeing) held that the trial judge erred in classifying the murder as substantially above the mid-range of objective seriousness. The Court assessed it as a mid-range murder. Mason P dissented on this point, finding it was open to the sentencing judge to conclude the offence was above mid-range. As a majority, the Court reduced the murder sentence accordingly. No special circumstances were found to justify adjusting the parole period beyond what was required to ensure the balance of term did not exceed one-third of the total non-parole period.

Orders Made

  • The appeal against conviction by Duong Hai Nguyen was dismissed.
  • The appeals against conviction by ATCN, Khanh Hoang Nguyen, and Minh Thy Huynh were allowed; their convictions were quashed.
  • New trials were ordered for ATCN, Khanh Hoang Nguyen, and Minh Thy Huynh.
  • Leave was granted to Duong Hai Nguyen to appeal against his murder sentence; the sentence was quashed and replaced with a non-parole period of 20 years commencing 30 January 2006, with a balance of term of 7 years and 4 months expiring 29 May 2033.
  • Leave to appeal against the sentence for maliciously inflicting grievous bodily harm with intent was refused for Duong Hai Nguyen.

Key Takeaways

  • Extended joint enterprise requires that the co-participant actually contemplated the possibility of the further crime being committed by another party, and continued to participate in the enterprise with that contemplation in mind. Directions that fall short of this standard are deficient.
  • A trial judge's failure to disclose a jury note to the parties and to respond to the jury's request for further directions can constitute a miscarriage of justice, particularly where the note goes to a contested and complex legal issue central to the verdicts.
  • In dismissing the shooter's conviction appeal, the Court of Criminal Appeal confirmed that strong identification evidence, including CCTV footage and witness testimony, can be properly admitted and relied upon even where the footage is not entirely clear.
  • The Court of Criminal Appeal reduced the murder sentence after finding the trial judge erred in classifying the offence as substantially above mid-range in objective seriousness. The majority held it was a mid-range murder, though Mason P dissented and would have upheld the original classification.
  • Under the sentencing framework applied, the only special circumstances warranting adjustment to the parole period arose from the accumulation of sentences, and the balance of term was set so as not to exceed one-third of the total non-parole period.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(1)
- Evidence Act 1995 (NSW)

Cases:
- McAuliffe v The Queen (1995) 183 CLR 108
- Clayton v The Queen [2006] HCA 58
- Hui Chi-Ming v The Queen [1992] 1 AC 34
- Reg v Hyde [1991] 1 QB 134
- R v Sharah (1992) 30 NSWLR 292
- Carusi (1997) 92 A Crim R 52
- Smith v The Queen (2001) 206 CLR 650