Citation: R v Phan [2025] NSWDC 263
Court: District Court of New South Wales
Date: 17 April 2025 (verdict delivered)
Judge: Colefax SC DCJ
Background
The accused was charged as an accessory before the fact to an attempted robbery in company, contrary to sections 97(1) and 346 of the Crimes Act 1900 (NSW). The principal offender, Keirnan Lang, had on 6 May 2023 attempted to rob a man named Scott Mallise of money and prohibited drugs, while in company with others. Lang later pleaded guilty to assault with intent to rob whilst armed with a dangerous weapon arising from the same events.
The Crown alleged that the accused assisted Lang by hiring a BMW motor vehicle that was then used in the attempted robbery. It was not disputed that she hired the car or that it was used in the offence. The sole question at trial was whether she did so knowing of Lang's plan to rob Mallise and intending to assist him in carrying it out.
The accused and the prosecution agreed to a judge-alone trial under section 132 of the Criminal Procedure Act 1986 (NSW). The accused gave sworn evidence denying any knowledge of the planned robbery or the purpose to which the vehicle would be put.
Legal Issues
- Whether the four elements of accessory before the fact to attempted robbery in company were each proved beyond reasonable doubt
- Whether the accused had actual knowledge of Lang's plan to rob Mallise at the time she provided him with the vehicle
- Whether the accused provided the vehicle with the intention of assisting Lang to commit that offence
- Whether the question of "claim of right" (that is, whether Lang genuinely believed he had a legal entitlement to money held by Mallise) was sufficiently raised on the evidence to require the Crown to negate it
Decision
His Honour identified the single live issue as knowledge and intent: did the accused know about the planned robbery and provide the BMW intending to assist Lang in committing it? The elements of the offence were not otherwise contested, and the claim of right question, raised by the Court of its own motion following R v Fuge [2001] NSWCCA 208, was found to have no evidentiary basis. Lang had not asserted any genuine belief in entitlement to Mallise's money, nor had the accused, and accordingly the Crown was not required to negate such a claim.
His Honour assessed the accused's sworn denial of knowledge against a substantial body of electronic communications, principally iMessages, Telegram messages and text messages exchanged between the accused and Lang in the days leading up to and on the day of the offence. While some earlier messages were described as having some degree of opaqueness in isolation, the messages of 6 and 7 May 2023 were characterised as "overwhelmingly inculpatory." His Honour gave particular weight to a rapid exchange of 90 messages sent over a 45-minute period on 7 May 2023, which he found bore the hallmarks of active and knowing involvement.
His Honour positively disbelieved the accused's evidence. Her claim that she could not recall sending those messages was found to be "quite frankly, unbelievable," given the engaged and logical character of her contributions. Having set aside her oral evidence, His Honour concluded from the totality of the messages that the only rational inference was that she provided the vehicle to Lang knowing he intended to use it with others to rob Mallise.
Good character evidence was admitted without challenge and was considered in the accused's favour, both on the likelihood of guilt and on her credibility. However, it was ultimately insufficient to raise a reasonable doubt in light of the electronic communications. His Honour entered a conviction on the single count.
Orders Made
• Samantha Phan is found guilty of the count on the indictment
• A conviction is entered against Samantha Phan for being an accessory before the fact to attempt a robbery in company
Key Takeaways
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The District Court confirmed that, for an accessory before the fact to attempted robbery in company, the Crown must prove the accused had actual knowledge of the principal's plan and provided assistance with the intention of furthering that plan. The act of assistance itself (here, hiring the vehicle) was not in dispute; knowledge and intent were the determinative elements.
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Where a claim of right defence has not been raised by either party, the court may nonetheless raise it of its own motion under the principle in R v Fuge [2001] NSWCCA 208. However, such a claim must have some evidentiary foundation before it obliges the Crown to negate it; in this case, none existed.
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Electronic communications received as exhibits can constitute both direct and circumstantial evidence of an accused's knowledge and intent. His Honour found the volume, timing, and content of the messages left only one rational inference available.
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In a judge-alone criminal trial, the standard directions on circumstantial evidence, the presumption of innocence, and the treatment of a defendant's evidence apply in the same way as in a jury trial. His Honour set out each principle expressly and applied them in sequence.
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Good character evidence, while properly considered in an accused's favour on both guilt and credibility, does not operate as a freestanding defence. Its weight is a matter for the tribunal of fact, and here it did not displace the inference compelled by the communications evidence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 97(1) and 346
- Criminal Procedure Act 1986 (NSW), ss 132 and 132A
- Evidence Act 1995 (NSW), s 191
Cases
- R v Fuge [2001] NSWCCA 208