Citation: R v Pham; R v Nguyen; R v Trinh [2019] NSWSC 1539
Court: Supreme Court of New South Wales
Date: 6 November 2019
Judge(s): Hamill J
Background
Six men were jointly charged with the murder of Tu Luong, a low-level drug dealer who had purchased drugs on credit from one of the accused and failed to pay. The prosecution alleged a joint criminal enterprise in which the accused lured Mr Luong to a meeting in Villawood in December 2015 under the pretence of a drug exchange, then drove him to a nearby street where he was dragged from a vehicle and assaulted. During that assault, one of the accused inflicted a fatal stab wound to Mr Luong's chest, and he died several hours later at Liverpool Hospital.
The prosecution case relied on two joint criminal enterprise theories: an agreement to kill or inflict grievous bodily harm (supporting a murder verdict), and an agreement to commit an unlawful and dangerous act (supporting manslaughter as an alternative). Notably, the prosecution expressly disclaimed any reliance on extended joint criminal enterprise, meaning it had to prove each accused individually agreed to the killing or serious injury.
At the close of the prosecution case, three of the six accused, Mr Pham, Mr Nguyen, and Mr Trinh, applied for directed verdicts of not guilty on the murder charge. A central issue throughout the trial was whether each of those accused knew that a knife would be used during the assault.
Legal Issues
- What is the correct legal test for a directed verdict of acquittal at the conclusion of the prosecution case?
- Was there sufficient evidence, taken at its highest, capable of sustaining a murder conviction against each of the three applicants?
- How should a trial judge distinguish between a rational inference open to a jury and mere speculation, particularly in a circumstantial case?
- Did any of the three applicants have knowledge that a knife would be used, so as to support an inference of participation in a joint criminal enterprise to kill or seriously injure?
Decision
Hamill J applied the well-established "Doney test," which requires that a directed verdict of acquittal be given only where the prosecution evidence, taken at its highest and with all reasonably available inferences drawn in the Crown's favour, is incapable of sustaining a guilty verdict. The test is a demanding one: even tenuous or weak evidence must go to the jury if it is capable of supporting conviction. His Honour confirmed that the question at this stage is not whether a hypothesis consistent with innocence is reasonably open, but whether a jury could rationally exclude such a hypothesis.
Applying this test to Mr Trinh, the court found that the evidence, including CCTV footage, telephone records, and witness testimony, was capable of establishing his participation in the enterprise. His Honour acknowledged the case was not strong and that the outcome might differ under the more demanding "unreasonable verdict" standard applied by the Court of Criminal Appeal, but that was not the applicable test.
For Mr Nguyen, the court weighed evidence that he was present at the assault scene, that weapons were visible in the vehicle he occupied, and that a co-accused had been directed to conceal the knife. His Honour accepted that, taking Ms Dobson's testimony about weapons in the car at its highest, the jury could infer Mr Nguyen was aware of the presence of dangerous weapons and was present and willing to assist. That was sufficient to leave the matter with the jury.
All three applications were refused. The evidence in each case was found capable, at its highest, of supporting a guilty verdict on the murder charge, and the matter was left for the jury to determine.
Orders Made
- Mr Pham's application for a directed verdict of not guilty was refused.
- Mr Nguyen's application for a directed verdict of not guilty was refused.
- Mr Trinh's application for a directed verdict of not guilty was refused.
Key Takeaways
- The threshold for a directed verdict of acquittal is very high: a judge may only intervene where the prosecution evidence, taken at its highest, is wholly incapable of sustaining a conviction, not merely where it appears weak or contested.
- Where an inference of guilt is reasonably open on the evidence, it is not enough to refuse a directed verdict that a competing hypothesis consistent with innocence also appears open; the question is whether a jury could rationally exclude that hypothesis.
- In a joint criminal enterprise case limited to basic (non-extended) liability, the prosecution must establish that each individual accused agreed to the particular criminal purpose, here killing or inflicting grievous bodily harm, rather than simply participating in a general plan to use violence.
- Knowledge that a knife would be used was a central issue distinguishing murder from manslaughter, and the presence of weapons visible to an accused, combined with circumstantial evidence of their role in the enterprise, was found sufficient to leave the knowledge question to the jury.
- Hamill J noted expressly that the directed verdict test is more permissive to the Crown than the "unreasonable verdict" ground available in the Court of Criminal Appeal, signalling that some of the three accused faced a stronger argument on that higher standard.
Legislation and Cases Referenced
Cases:
- Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51
- The Queen v A2, Magennis & Vaziri [2019] HCA 35
- Bloodsworth v R [2019] NSWCCA 260
- R v Qaumi & Ors (No 59) [2016] NSWSC 1159
- R v Le & Loeung [2019] NSWSC 632
- Duong, Lu, Do & Tran (1992) 61 A Crim R 140
- R v JMR (1991) 57 A Crim R 39
Legislation: No specific legislation was cited in the provided text.