R v Pham; R v Nguyen; R v Trinh

1. [1]

   At the conclusion of the prosecution case, three of the accused men – Mr Pham, Mr Nguyen and Mr Trinh – made applications that the jury be directed to return verdicts of not guilty to the charge of murder.

The prosecution case in a nutshell

1. [2]

   The prosecution case is one of joint criminal enterprise. Six men are charged jointly with the murder of Tu Luong. At its core, the case concerns the exacting of retribution or revenge upon a low level drug dealer called Tu Luong (and also referred to as Michael). It is alleged that Mr Luong purchased drugs “on tick” (that is, on credit) from one of the accused, namely Tony William Ho. Mr Ho had obtained those drugs from another of the accused men, Minh Duc Trinh. Mr Luong did not pay for the drugs and Mr Ho, Mr Trinh, Mr Pham and others attempted to locate and contact him. On Sunday, 6 December 2015 a rendezvous was arranged in Bligh Street Villawood. After Mr Luong met Mr Pham, Mr Trinh and Sandra Dobson in Bligh Street, he was driven to Belmore Street in Villawood where he was assaulted by three or perhaps four of the six accused men. In the course of that assault somebody, who on the prosecution case was Jason Hoang, stabbed Mr Luong several times. One of those stab wounds was to the chest and it penetrated his heart. He died some hours later in Liverpool Hospital.

2. [3]

   The prosecution case is that the six accused acted in concert and were part of a joint criminal enterprise to kill or inflict grievous bodily harm on Mr Luong. On the day in question, the six men occupied two cars, a black Honda Accord and a white Ford Territory. The black car pulled up beside the white car near the corner of Bligh and Mandarin Streets and then both cars drove to Belmore Street. The white car was occupied by Mr Trinh, Mr Pham and the deceased, and was driven by Ms Dobson. The black car was occupied Mr Ho, Abdul Feroz, Jason Hoang and Voung Van Nguyen. It was driven by LK.

3. [4]

   It is the prosecution case that the occupants of the white vehicle tricked Mr Luong into attending a meeting in Bligh Street where it was suggested there was going to be exchange of drugs – “ice” for heroin. The black car arrived a short time later and the two vehicles travelled the short distance to 10 Belmore Street. Mr Trinh got out of the white vehicle and, on the prosecution case, indicated to Mr Ho and the others where Mr Luong was seated. Mr Luong was dragged from the white car by several of the occupants of the black car and assaulted by Mr Ho, Mr Feroz and Mr Hoang. The prosecution case is that Mr Hoang inflicted the fatal stab wound in the course of that assault. There is evidence of multiple stab wounds and one piece of evidence that suggests that one or more of the wounds may have been inflicted when Mr Luong was still (at least partially) inside the white car. The prosecution submits that during the assault, Mr Feroz and Mr Ho struck the deceased with poles or pipes or similar objects but there is no evidence that any serious injury was occasioned by blunt force trauma. The prosecution case is that Mr Nguyen was present in the immediate vicinity of the assault and was ready, willing and able to assist the others in the violence that led to Mr Luong’s death.

4. [5]

   As I have said, the prosecution case is one of joint criminal enterprise. At the commencement of the trial, the Prosecutor eschewed any reliance on the principle of extended joint criminal enterprise. This was confirmed in the course of argument on the no case submission. In other words, to establish murder against any one of the accused men, the prosecution must prove beyond reasonable doubt that the particular accused entered into and participated in an agreement whereby it was agreed that Mr Luong would be killed or seriously injured in the assault. An issue which has permeated the trial is whether any of the accused men, apart from the stabber himself, knew that a knife would be used to stab Mr Luong in the course of the assault.

5. [6]

   Manslaughter is not specifically charged on the indictment but it is a naturally occurring alternative to murder. All parties agree that if the case goes to the jury, the alternative charge of manslaughter, based on an unlawful and dangerous act, would have to be put to the jury and would arise if the particular accused joined an agreement to act violently but did not agree to kill or to inflict grievous bodily harm on Mr Luong. To prove manslaughter, the prosecution would have to prove that the individual accused entered and participated in a joint criminal enterprise to commit an unlawful and dangerous act on Mr Luong.

6. [7]

   Due to the diligence of counsel, and co-operation between the parties, the evidence adduced by the prosecution is in relatively short compass. It consists of:

   1. (1)

      The evidence of the two drivers. Ms Dobson, the driver of the white car, has not been charged with any offence concerning the death of Mr Luong or her involvement in drug dealing. LK, the driver of the black car, pleaded guilty to manslaughter and was sentenced to 5 years imprisonment following a substantial discount for his plea of guilty and assistance.

   2. (2)

      A schedule of telephone contact and messaging between the various players.

   3. (3)

      CCTV footage from various locations including, critically, footage taken from a house at 8 Belmore Street, Villawood which captures the whole of the critical incident.

   4. (4)

      Evidence of a number of eye witnesses who were present in the vicinity at the time of the incident.

   5. (5)

      Evidence of the forensic pathologist concerning the findings on post mortem examination.

   6. (6)

      Evidence of the police investigation including the examination of the crime scene and evidence of a forensic nature.

7. [8]

   For the purpose of the present applications it is necessary to focus, not exclusively but most particularly, on the evidence of the telephone communications, the CCTV footage from 8 Belmore Street, Villawood and the evidence of the two drivers. However, a couple of particular observations of two of the eye-witnesses are also relevant to determine the applications and all of the evidence must be considered.

Relevant principles of law

1. [9]

   The principles applicable to an application such as the present were not in dispute although their application to the factual circumstances of the present case and in particular the distinction between the drawing of rational inferences as opposed to speculation and supposition was subject of contest between the parties.

2. [10]

   The legal test to be applied on an application for a directed verdict of acquittal is well established. It is a very high test and I explained it in R v Qaumi & Ors (No 59) [2016] NSWSC 1159 at [13]-[14]:

3. [11]

   In Doney v The Queen (1990) 171 CLR 207; [1990] HCA 51 the High Court held at 214:

4. [12]

   In The Queen v A2, Magennis & Vaziri [2019] HCA 35 Kiefel CJ and Keane J explained the application of “the Doney test” in the following passage (with references omitted):

5. [13]

   In R v JMR (1991) 57 A Crim R 39, Lee CJ at CL (with whom Carruthers and Finlay JJ agreed) explained the operation of the test in a circumstantial case where competing inferences arise. The question of whether the prosecution has negatived all other reasonable inferences consistent with innocence is a question for the jury, not for the trial Judge. Lee CJ at CL said at 44:

6. [14]

   An example of the application of these principles is provided in the helpful judgment of N Adams J in R v Le & Loeung [2019] NSWSC 632 at [33]-[34].

7. [15]

   I have applied these principles to the circumstances of the case of each of the three accused who have made an application for a directed verdict.

Mr Pham’s application

1. [16]

   Mr Pham was sitting in the rear passenger seat of the white car. His location is important in view of part of the evidence upon which the prosecution relies.

2. [17]

   Mr Pham was involved in the arrangements whereby Mr Luong attended 28 Bligh Street, Villawood and entered the white vehicle which Ms Dobson drove to the location where the killing occurred. There is evidence of a large amount of telephone contact between Mr Pham and Mr Luong between around midday and 3:56pm. [1] The killing took place at around 4:06pm. An MMS message sent at 1:23pm attached what I take to be a screen shot of a Google map with a “pin” indicating a location in Bligh Street, Villawood. [2] There is CCTV footage showing Mr Pham in the company of Mr Trinh and Ms Dobson at the Pritchard Hotel in the period before and after the killing. [3] Ms Dobson's evidence was that she used Mr Pham's telephone to contact Mr Luong and, by a ruse, arranged for a meeting to take place where there would be an exchange of drugs. The prosecution relies on this deception, apparently orchestrated by Mr Pham, to support the inference that there was some sinister purpose behind the meeting that was proposed.

3. [18]

   Based on the evidence of Ms Dobson, along with the CCTV footage and telephone records, there is no doubt that Mr Pham played a role in organising the meeting. There is also clear evidence of his connection with Mr Trinh in the form of telephone contact and CCTV footage. There is no dispute that he was present in the car which drove Mr Luong to the location where the alleged homicide occurred.

4. [19]

   However, there is no evidence capable of establishing either that Mr Pham left the white vehicle at any stage or that he was aware that weapons were to be used in the assault – or that there was to be an assault at all – before the fatal moments captured in the CCTV footage from Belmore Street, Villawood. It is the absence of such evidence that forms the basis of his application to direct the jury to return a verdict of not guilty.

5. [20]

   This CCTV footage is critical evidence in terms of what happened at the scene. The prosecution has, without dispute from any of the three applicants for a directed verdict, indicated who is who within the CCTV footage. It is not disputed that Mr Pham never left the white car. What the CCTV footage shows, relevantly to Mr Pham, is that when the white car pulled up, people from the black car approached the white car and attempted, and then succeeded, in pulling Mr Luong from the vehicle. There is some evidence from a local resident (Mr Lancaster) that he witnessed a stabbing occur while Mr Luong was being pulled from, and was still at least partially inside, the white car. From that evidence, taking the prosecution case at its highest, an inference can be drawn that Mr Pham was aware at that moment that a knife was to be used in the attack on Mr Luong. However up until that point there is no evidence capable of establishing that he was aware that any weapons were to be employed or even that any violence was to be employed in the attempt to have Mr Luong return the drugs or pay for them.

6. [21]

   The driver of the white vehicle Ms Dobson, gave the following evidence relevant both to her actions and those of Mr Pham:

7. [22]

   When Ms Dobson refers in this evidence to the “Chinese Russian” she is referring to Mr Pham. This evidence is capable of establishing that Mr Pham pushed Mr Luong away from himself while Mr Luong was still within the car and when, on Mr Lancaster’s evidence, he was stabbed. It is not capable, rationally, of establishing that he was doing so as part of a joint criminal enterprise to inflict grievous bodily harm on Mr Luong. While it is not a matter of any moment, it is noted that Ms Dobson did almost precisely the same thing when Mr Luong attempted to climb into the front of the vehicle away from those who were trying to pull him out of the white car.

8. [23]

   The prosecution in its opening said the following things about its case against Mr Pham:

9. [24]

   There is evidence establishing a connection between Mr Pham and at least two of the critical players who arrived in the black car. First, there is telephone contact between Mr Pham’s ‘phone and those of Mr Ho and Mr Hoang on the morning and afternoon of the killing. [8] Those calls can be considered in the context of other calls and messages between Mr Ho and Mr Hoang, Mr Ho and Mr Luong and Mr Pham and Mr Luong. There is also evidence that Mr Pham was present at Mr Ho’s premises on the morning of the incident. This evidence is capable of giving rise to a rational inference that Mr Pham was well aware of the drug debt and of Mr Ho’s desire to have the drugs returned or be paid for. The question is whether they give rise to an inference that Mr Pham joined a joint criminal enterprise to assault, kill or inflict grievous bodily harm on Mr Luong.

10. [25]

    Until the critical moment, there is no evidence that Mr Pham knew that the other participants intended to assault, let alone inflict grievous bodily harm upon, Mr Luong. A critical question is whether he knew the occupants of the black car possessed any weapons. There is some evidence that there was at least one knife (and possibly two knives) as well as two pipes or poles inside the black car. LK claimed, implausibly, that he did not see any weapons inside the car although he gave evidence of a conversation about a knife. This evidence cannot be used to draw any inference of knowledge on Mr Pham’s part because he was not present.

11. [26]

    Similarly, there was evidence of a hunting knife (or similar) being sharpened at Tony Ho’s house by LK, Messrs Ho and Hoang but no evidence that Mr Pham was present at that time. [9] There was also evidence that Mr Pham was present at Mr Ho’s house on the morning of 6 December 2015 [10] but that fact, even allowing for the inference that the knife may have been present at that stage [11] cannot, rationally, lead to an inference that he saw the knife, or that he knew it might be used in the course of an attack on Mr Luong.

12. [27]

    Ms Dobson gave evidence of seeing weapons in the black car when it pulled up next to her in Bligh Street: [12]

13. [28]

    While this evidence was subject to significant dispute in cross-examination it must be taken at its highest. Even so, the fact that Ms Dobson saw weapons is not capable of establishing that Mr Pham also saw them. CCTV footage shows the point in time when the black vehicle pulled up next to the white vehicle. [13] Ms Dobson, in the driver’s seat, had a clear view into the black vehicle, notwithstanding the windows of each car were tinted and the question marks over which of the windows were open. However from the back passenger seat the point of view would have been very different. It is not a rational inference to draw that Mr Pham saw the same things that Ms Dobson saw.

14. [29]

    I am unable to identify any evidence from which a rational inference could be drawn that Mr Pham was aware that there were any weapons in the black car and no evidence otherwise that he was aware that anyone had an intention of inflicting grievous bodily harm upon Mr Luong, let alone evidence capable of supporting an inference that he had joined and participated in a joint criminal enterprise to inflict such harm upon him. On the evidence taken at its highest, the first occasion when a rational inference could be drawn that he may have seen the knife was at the moment that the men from the black car approached the rear passenger side and started to assault Mr Luong or drag him from the vehicle.

15. [30]

    When pressed on this issue, the Prosecutor submitted:

16. [31]

    Putting aside the fact that this was not the case upon which the Prosecutor opened, and even accepting that Mr Pham may have seen a knife in the few seconds between the black car pulling up and the men approaching the rear driver’s side door, this evidence is not capable of establishing that Mr Pham was part of a joint criminal enterprise to kill or to inflict grievous bodily harm on Mr Luong.

17. [32]

    Accordingly, I am of the view that there is no evidence capable of establishing the crime of murder against Mr Pham.

18. [33]

    The Prosecutor submitted that it was open to leave the alternative verdict of manslaughter to the jury. I accept that this is technically possible and the Prosecutor would be permitted to amend the indictment if there was a case to answer on that alternative form of homicide. However, there is no evidence that Mr Pham was aware there was to be an assault at all.

19. [34]

    Ms Dobson, who was present with Mr Trinh for a great deal of time before the meeting, gave evidence that her understanding was that they were going to collect the drugs or money. She said that Mr Trinh told her “this guy knows the guy Michael who had stolen the ice off John and he’s going to help get the stuff back, the money back.” [15] She went on to say “The Chinese Russian and Minh, to get the drugs or to get the money back.” Mr Trinh told her “you know me, I don’t like violence, that’s not what I’m about.” [16] Whether that was his true state of mind is not relevant to the present application – the evidence is that this is what he told Ms Dobson.

20. [35]

    There is no evidence that Mr Trinh said anything different to Mr Pham and no evidence capable of suggesting that Mr Pham had any greater knowledge than Ms Dobson, although again, Ms Dobson’s state of knowledge is not probative of the state of Mr Pham’s mind. However, there is no evidence that Mr Pham was aware that Mr Trinh, or those with Mr Ho in the black car intended to employ violence. LK gave evidence of the conversations in Mr Pham’s presence when he was at Mr Ho’s house:

21. [36]

    Apart from pushing Mr Luong away in the same way as Ms Dobson did, Mr Pham did nothing to support a case that he participated in the assault and there is no evidence from which the jury could rationally draw the inference that he was part of a joint criminal enterprise to commit an unlawful and dangerous act, or inflict violence of any kind, on Mr Luong.

22. [37]

    Accordingly, I do not propose to leave the question of manslaughter by unlawful and dangerous act to the jury.

23. [38]

    While acknowledging the different factual matrix, I am fortified in these conclusions by the decision of the Court of Criminal Appeal (Mathews J, Handley JA and Sully J agreeing) in Duong, Lu, Do & Tran (1992) 61 A Crim R 140. That was also a case where a critical question was whether the participants in a “common design” were aware that the principal assailant possessed and might use a knife in the course of an assault. Mathews J said at 150:

24. [39]

    I intend to direct the jury to return a verdict of not guilty in Mr Pham’s case.

The application on behalf of Mr Trinh

1. [40]

   Mr Trinh was also an occupant of the white car. However, the case against him is very different. Contrary to the submission of his counsel, there is evidence of motive in his case. It was his drugs that were on-sold to Mr Luong by Mr Ho. The evidence showed that he played an active role in liaising with Mr Ho and a number of others in an attempt to locate Mr Luong.

2. [41]

   On the day of Mr Luong’s killing there were multiple telephone communications (attempted and completed) between the telephone operated by Mr Trinh and that operated by Mr Ho.

3. [42]

   Mr Trinh was in the front passenger seat of the white car. When the black car arrived in Belmore Street, Mr Trinh immediately got out of the white car before it was even parked. He made a gesture that is capable of being interpreted as indicating where Mr Luong was located in the white car. There was evidence of this from LK who said that “he pointed towards his car, back toward his car and give a nod to Tony [Ho].” [18] This evidence receives possible support from the CCTV footage which captures Mr Trinh’s conduct at this crucial moment. [19] Mr Trinh was the only person to get out of the white car. He was in the immediate vicinity of the rear passenger door when the men from the black car commenced their attempt to pull Mr Luong from the white car. He then retreated to the passenger side of the car. Putting the CCTV evidence together with that of Mr Lancaster, an inference is available that he was very close to the combatants when Mr Luong was first stabbed.

4. [43]

   I accept that the evidence that Mr Trinh knew that a knife would be used is slight and relies on a series of inferences (if it can be sustained at all). However, from his location on the roadway, the jury would be entitled to infer that he must have seen the pipes or bars carried by the other accused men who emerged from the black car. He did nothing to stop the attack. On the contrary, Mr Trinh did not get back into the white car until Mr Luong was outside of the car and the assault on the side of the road was about to commence. As soon as he got back into the white car, it quickly left the scene.

5. [44]

   There is some evidence that Mr Trinh expressed surprise when he saw Mr Ho and the others in the vicinity (in Bligh Street). [20] Whether that was genuine, or a ruse calculated to deceive Mr Luong, is a matter of competing inferences. It is not for the trial Judge at this stage of the trial to resolve such an issue.

6. [45]

   I accept that the prosecution case of murder is circumstantial and that there are competing inferences, some consistent with innocence which appear to me to be reasonable ones. If the question was the same as that which applies to a Court of Criminal Appeal in resolving a ground of appeal that a verdict is unreasonable and unable to be supported, my conclusion might be different. But that is not a decision I need to make and applying the tests enunciated in cases such as JMR, Doney and A2, Magennis and Vaziri, I am satisfied that there is a circumstantial case capable of supporting a guilty verdict on the charge of murder. The matter should be left for the jury to consider.

7. [46]

   Accordingly, Mr Trinh’s application for a directed verdict of not guilty is refused.

The application on behalf of Mr Nguyen

1. [47]

   Unlike the other applicants for a directed verdict, Mr Nguyen was an occupant of the black Honda Accord. He was seated in the rear middle seat. It is agreed that he was unarmed.

2. [48]

   The evidence supports the conclusion that Mr Nguyen was at Mr Ho’s house on the morning of 6 December 2015 with Mr Ho, Mr Feroz, Mr Hoang and LK. [21] The men were sitting in Mr Ho’s bedroom and there was a hunting knife on a table in the room. [22] Later, the five men travelled together in LK’s black Honda Accord to Bligh Street where CCTV footage (from 100 Mandarin Street) captured them pulling up alongside the white car driven by Sandra Dobson. [23] Ms Dobson gave evidence that she saw knives and poles in the backseat of the black car at that time. [24]

3. [49]

   When the Honda Accord arrived at Belmore Street, CCTV footage captured a number of events relevant to Mr Nguyen’s case. Mr Nguyen can be seen walking around the front of the white vehicle to the passenger door. Ms Dobson’s evidence was that a man she referred to as ‘babyface’ got out of the black car and knocked on her door and the car window: [25]

4. [50]

   There appears to be no dispute, and at least it is an available inference that the man referred to as “babyface” is Mr Nguyen. It might further be inferred that he was imploring Ms Dobson to unlock the doors of the car.

5. [51]

   Ms Dobson did unlock the doors of the car and Mr Luong was pulled from the vehicle and ran or was pushed onto a strip of grass at the side of the road. After this, Mr Nguyen was standing about a metre away while the assault on Mr Luong took place. He moved around the front of the white car to pick up a shoe from the middle of the roadway and then walked back towards the side of the road where the assault on Mr Luong continued. The CCTV footage shows Mr Nguyen standing directly over Mr Luong before bending down near him, picking up an item and then returning to the black vehicle. The car was driven back to Mr Ho’s house at Malta Street, Villawood. Ms Dobson’s evidence was that when she saw him back at Mr Ho’s house, ‘babyface’ had blood on the shoulder of his t-shirt. [26]

6. [52]

   When Mr Nguyen was arrested, he told police that he knew Tony Ho. [27] Between the time of the “drug rip off” and Mr Nguyen being present at Mr Ho’s house on 6 December, the evidence relating to Mr Nguyen is limited to two ‘phone calls: the first being a 23 second call to Mr Ho at 10pm on 5 December 2015. From the timing of the second call it can be inferred that the call was not answered. [28]

7. [53]

   The evidence as to what happened at Mr Ho’s house on 6 December comes solely from LK, who gave the following evidence in cross-examination on behalf of Mr Nguyen: [29]

8. [54]

   Mr Nguyen’s application is based on a number of omissions in the evidence and the fact that he did not take part in the assault itself.

9. [55]

   The first omission is that there is no evidence of any personal motive on the part of Mr Nguyen to be involved in a joint criminal enterprise to inflict grievous bodily harm on the accused. It was conceded that Mr Nguyen was a passenger in the black Honda Accord but submitted that there was no evidence that Mr Nguyen had any knowledge about Mr Luong and the drug rip off. LK’s evidence was that Mr Nguyen (or ‘Monkey’) was at Mr Ho’s house on the morning of 6 December to buy drugs.

10. [56]

    Further, there is no evidence that Mr Nguyen was a party to any conversations about the missing drugs and no evidence that he was present on 5 December when it is alleged that a number of the other accused were sharpening a hunting knife at Mr Ho’s house.

11. [57]

    Contrary to Ms Dobson’s evidence that the backseat of the Honda Accord was “very full, very, like it had, because they had so many weapons as well, lagging them around” [30] , LK’s evidence (set out at [53] above) was that no one else in the black car knew there was a knife. However, for the purposes of this application, the Prosecution case must be taken at its highest and I must act on the basis that the jury may accept Ms Dobson’s version of events. If this account is accepted, it is open to the jury to infer that Mr Nguyen must have seen some of the weapons that were present in the car. LK also gave evidence that Mr Ho told Mr Hoang to put the knife away when they were outside of the car, further evidence from which it might be inferred that Mr Nguyen was aware of the presence of dangerous weapons.

12. [58]

    While it is undisputed that Mr Nguyen was never armed and played no physical role in the assault, the Prosecutor submitted that his presence allows for an inference that he was “willing to assist if called upon or needed” [31] and that he was part of a joint criminal enterprise and participating in it by his presence at the scene of the killing.

13. [59]

    As in Mr Trinh’s application, it may be that the result would be different if the test was that which applies in the Court of Criminal Appeal when considering an unreasonable verdict ground: compare, for example, Bloodsworth v R [2019] NSWCCA 260. However, taking the prosecution case at its highest and applying the strict test required by the authorities, I am satisfied that the whole of the evidence, including the CCTV footage and Ms Dobson’s testimony, is capable of establishing Mr Nguyen’s guilt beyond reasonable doubt.

14. [60]

    Accordingly Mr Nguyen’s application for a directed verdict of not guilty will be refused.