R v Phan [2001] NSWCCA 29

Reported Decision : 123 A Cim R 30 53 NSWLR 480

New South Wales Court of Criminal Appeal

CITATION : R v Phan [2001] NSWCCA 29 FILE NUMBER(S) : CCA 60356/2000 HEARING DATE(S) : 16/02/2001 JUDGMENT DATE : 4 June 2001

PARTIES : Regina Vinh Ngoc Phan JUDGMENT OF : Wood CJ at CL at 1; McClellan J at 87; Smart AJ at 88

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70090/98 LOWER COURT JUDICIAL Sully J OFFICER :

COUNSEL : M. Grogan for Crown G D Wendler for Applicant SOLICITORS : S.E. O'Connor Van Houten CATCHWORDS : CRIMINAL LAW - appeals - appeal against conviction - murder - directions to jury - discretion to exclude evidence - whether summing up unbalanced - whether necessary to give instructions on alternative verdict of manslaughter - criminal responsibility - distinction between common purpose and joint criminal enterprise - whether principal in second degree - whether mere presence enough to be guilty of murder - miscarriage of justice Crimes Act 1900 Part 10A LEGISLATION CITED : Evidence Act 1995 ss 90, 138 Jury Act 1977 s 54 DECISION : (1) Appeal against conviction allowed.; (2) Conviction and sentence quashed and a new trial ordered.

IN THE COURT OF CRIMINAL APPEAL

No. 60356 of 2000

WOOD CJ at CL McClellan J Smart AJ MONDAY 4TH JUNE 2001 Regina v PHAN

The appellant was convicted of murder. He was sentenced to imprisonment for fourteen years with a non-parole period of ten years and nine weeks.

He appealed against the conviction on the grounds that (1) the trial judge failed to give a formal order in compliance with s 54 Jury Act; (2) the trial judge's directions could not remedy a prejudicial remark made by the Crown prosecutor; (3) the summing up was unbalanced; (4) the trial judge failed to give instructions on an alternative verdict of manslaughter; (5) the trial judge erred in admitting the appellant's ERISP into evidence; (6) the trial judge's directions in relation to the liability of the appellant as a principal in the second degree were erroneous and occasioned a miscarriage of justice.