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Court of Criminal Appeal 19 November 2021

Ly v R; Ngo v R

[2021] NSWCCA 272

Homicide
CRIMINAL LAW APPEAL AGAINST CONVICTION TWO COUNTS OF MURDER WHETHER VERDICTS UNREASONABLE APPEAL UPHELD CONVICTIONS QUASHED

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

Background

Two appellants, Ly and Ngo, were convicted in November 2018 of two counts of murder each, following a trial before Bellew J and a jury in the NSW Supreme Court. The victims were a methylamphetamine "cook" and his partner, whose bodies were found in Bankstown and near Hoxton Park respectively in 2013 and 2014. Each appellant was sentenced to an aggregate term of 40 years imprisonment with a non-parole period of 30 years.

The Crown case was that Ngo ran an illegal drug manufacturing operation, that the male victim had stolen drugs from her laboratory, and that Ngo and Ly participated in a joint criminal enterprise to kill both victims. The Crown relied almost entirely on the evidence of two protected witnesses, referred to as Witness 3 and Witness 4. There was no DNA or other forensic evidence directly implicating either appellant.

Both appellants pleaded not guilty and did not give or call evidence at trial. Their defence was that they were not present at the house where the killings were alleged to have occurred and played no part in the murders. On appeal, they did not challenge the fairness of the trial or the summing-up; they raised a single ground: that the verdicts were unreasonable and could not be supported on the evidence.

  • Whether the verdicts of guilty on two counts of murder were unreasonable and could not be supported according to the evidence, within the meaning of s 6(1) of the Criminal Appeal Act 1912
  • Whether the jury, acting rationally, ought to have entertained a reasonable doubt as to the guilt of each appellant, having regard to the internal inconsistencies within the evidence of each Crown witness and the inconsistencies between their evidence and other independent evidence

Decision

The Court of Criminal Appeal upheld the appeal on the single ground raised. Both Gleeson JA and Beech-Jones J (with Cavanagh J agreeing) concluded that a jury acting rationally ought to have entertained a reasonable doubt about the guilt of each appellant.

The Court applied the test from Pell v The Queen (2020) 268 CLR 123, which requires the appellate court to undertake an independent review of the evidence to determine whether the jury must have had a reasonable doubt, rather than merely deferring to the jury's assessment. The Court undertook that review and was not satisfied the evidence was capable of grounding the convictions to the required standard.

The case depended critically on Witness 4, who was the only witness to directly implicate both appellants. The trial judge had given a "Murray direction" instructing the jury that it could not convict unless satisfied beyond reasonable doubt that Witness 4 was both honest and accurate. On the Court's review, the inconsistencies within Witness 4's evidence, within Witness 3's evidence, and between the accounts of those two witnesses, were such that no rational jury could have been satisfied to that standard.

The Court noted that the trial judge had also required the jury to treat the witnesses' evidence as potentially unreliable given their involvement in criminal activity. The absence of any corroborating forensic evidence linking the appellants to the offending compounded the difficulties with the Crown case.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a Crown case rests entirely on the evidence of witnesses with acknowledged criminal involvement, and whose accounts contain significant internal and external inconsistencies, a verdict of guilty may be found unreasonable under s 6(1) of the Criminal Appeal Act 1912.

  • Applying Pell v The Queen, the appellate court is required to conduct an independent review of the trial record rather than simply ask whether the jury was entitled to reach its conclusion; the test is whether a rational jury ought to have entertained a reasonable doubt.

  • A "Murray direction" (from R v Murray (1987) 11 NSWLR 12) instructs the jury that it cannot convict unless satisfied beyond reasonable doubt that the critical witness is both honest and accurate; this direction heightened the standard against which Witness 4's evidence was assessed.

  • Where a Crown case depends on a joint criminal enterprise theory but only one witness directly implicates the accused, the reliability of that single witness is determinative and must withstand close appellate scrutiny.

  • No forensic evidence linked the appellants to the offending, and the complete absence of independent corroboration was a material factor weighing against the reasonableness of the verdicts.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1)
- Evidence Act 1995 (NSW), s 169

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