Ly v R; Ngo v R

Citation: Ly v R; Ngo v R [2021] NSWCCA 272
Court: Court of Criminal Appeal
Date: 19 November 2021
Judge(s): Gleeson JA, Beech-Jones J, Cavanagh J

Background

Two appellants were convicted in 2018 of two counts of murder each, following a trial before Bellew J and a jury in the NSW Supreme Court. Each received an aggregate sentence of 40 years imprisonment with a non-parole period of 30 years. The victims were a drug cook and his partner, whose bodies were discovered in April 2013 and January 2014 respectively.

The Crown case was that the appellants participated in a joint criminal enterprise to kill both victims after one of them was suspected of stealing drugs from a methamphetamine manufacturing operation. The Crown relied almost entirely on the evidence of two witnesses, identified as Witness 3 and Witness 4, both of whom had received undertakings from the Attorney-General that their evidence would not be used against them.

Neither appellant gave or called evidence at trial. They contended they were not present at the house where the killings allegedly occurred and played no role in the deaths. On appeal, they raised a single ground: that the verdicts were unreasonable and could not be supported by the evidence.

Legal Issues

• Whether the verdicts of guilty on both counts of murder were unreasonable and could not be supported according to the evidence under s 6(1) of the Criminal Appeal Act 1912
• Whether the inconsistencies within and between the evidence of the two principal Crown witnesses, combined with the absence of independent corroborating evidence, were such that a rational jury ought to have entertained a reasonable doubt as to each appellant's guilt
• Whether the evidence of an independent witness who claimed to have seen one of the victims alive after the alleged date of her death rendered the verdicts unreasonable

Decision

Ground 1: Unreasonable verdicts

The Court granted leave to appeal and upheld the single ground of appeal for both appellants. Applying the test confirmed in Pell v The Queen (2020) 268 CLR 123, the Court was satisfied that the jury, acting rationally, ought to have entertained a reasonable doubt as to the guilt of each applicant (at [1], [135]).

The independent evidence

The Court accepted that the independent evidence, including cell tower data, CCTV footage, call charge records, and forensic pathology, was capable of establishing that the key parties knew one another, were involved in drug manufacturing, and were in contact on the relevant day. However, that evidence fell well short of placing the victims or one of the appellants at the house where the killings allegedly occurred, or of demonstrating that the other appellant was in a position to direct anyone to cause harm (at [92], [133]). There was no DNA or other forensic evidence implicating either appellant (at [13]). The Court noted that, while the forensic evidence was broadly consistent with Witness 4's account of the manner of the killing, the wrapping of one victim's body tended to undermine rather than support his evidence about how it was prepared for disposal (at [83], [91]).

Witness 4's credibility

The Court found that Witness 4's evidence was so significantly undermined that no reasonable jury could have been satisfied beyond reasonable doubt that he was an honest and accurate witness (at [134]). Several matters were particularly damaging. In evidence-in-chief, Witness 4 gave a vague and evasive account of lending his samurai sword the night before the killings; only after being taken to his 2014 statement in cross-examination did he recall having lent it to one of the alleged killers (at [27]-[28]). The Court regarded this as strongly suggestive of deliberate minimisation of his own involvement. More significantly, when asked in evidence-in-chief whether he saw anything happen to one of the victims as he left her bedroom, Witness 4 said he saw nothing, yet his 2014 statement recorded that he had witnessed a man place a pillow over her face to suffocate her (at [34]-[37]). The Court found these aspects especially damaging to his credibility and declined to accept the Crown's explanation that he had not understood the act to be fatal (at [37]). Across the whole of his evidence, the Court found that Witness 4 had deliberately minimised his role in the drug manufacturing business and in the events surrounding the murders (at [123], [125]-[127]).

Witness 3's credibility and irreconcilable accounts

The Crown Prosecutor had herself conceded at trial that the jury would have "real difficulty" accepting anything of importance from Witness 3 unless supported by other evidence (at [122]). The Court agreed with that assessment. Further, there was an unresolvable contradiction between Witness 4 and Witness 3 about which house the drug theft had allegedly been committed from (at [115]). Their accounts of Witness 3's involvement on the day of the killings were substantially irreconcilable: what Witness 4 attributed to Witness 3 by way of knowledge and active participation, Witness 3 either denied or said he could not recall (at [116]). The Court concluded that the two witnesses' evidence provided no real support for each other (at [133]).

The Roulstone evidence

One witness gave evidence that he had seen one of the female victims alive some weeks after the date on which she was allegedly killed. The Court declined to hold that this evidence alone rendered the verdicts unreasonable (at [107]-[108]). The jury was entitled to reject his account as mistaken, having regard to the mobile phone evidence suggesting the victim had ceased using her phone from around the evening she was alleged to have been killed.

Orders Made

In the appeal by the first appellant:
- Leave granted to raise Ground 1 of the appeal
- Appeal allowed
- Convictions on both counts of murder set aside
- Acquittal entered on both counts

In the appeal by the second appellant:
- Leave granted to raise Ground 1 of the appeal
- Appeal allowed
- Convictions on both counts of murder set aside
- Acquittal entered on both counts

Key Takeaways

• A conviction may be set aside as unreasonable under s 6(1) of the Criminal Appeal Act 1912 even where the principal evidence comes from a witness who gave evidence in person before the jury; consistent with Pell v The Queen, the appellate court assumes the jury found that witness credible, but still asks whether a rational jury nonetheless ought to have entertained a reasonable doubt (at [94]-[97]).

• Where a Crown case depends almost entirely on witnesses who are indemnified participants in the alleged crimes, irreconcilable contradictions between those witnesses' accounts and within each witness's own evidence can cumulatively render a guilty verdict unreasonable, even if individual discrepancies might separately be explained by the passage of time (at [133]).

• The Court of Criminal Appeal identified a particular category of credibility problem: a witness who, when asked open questions in evidence-in-chief, fails to mention witnessing a killing he had described in detail to police years earlier cannot be regarded as an honest and accurate witness, regardless of claimed memory loss (at [134]).

• Forensic and circumstantial evidence that places accused persons in the general vicinity of an alleged crime, but does not independently establish their presence at the specific location or their involvement in the deaths, provides only modest support for accomplice witness evidence and cannot repair fundamental credibility failures in that evidence (at [92]-[93], [98]).

• Where a Crown witness has demonstrably minimised their own involvement in the very offending about which they give evidence, that minimisation is not readily compartmentalised from their account of the accused's conduct; the more involved the witness was, the more their self-serving account undermines their reliability as to the accused's role (at [127]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912
- Evidence Act 1995

Cases
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- R v Kevin Ly; R v Dung Thi Ngoc Ngo [2019] NSWSC 502
- R v Murray (1987) 11 NSWLR 12
- RD (a pseudonym) v R [2021] NSWCCA 94