R v Phan

3. Upon her arraignment, Ms Phan pleaded not guilty to that Count (which is more commonly referred to as: being an accessory before the fact to attempted robbery in company).

4. Following that arraignment, and pursuant to s132A of the Criminal Procedure Act 1986 (NSW) (“the Act”), I granted leave to Ms Phan to make an application for an order under s132 of the Act.

5. The application for Ms Phan to be tried by judge-alone was agreed to by both her and the prosecutor. Consequently, and in accordance with s132(2) of the Act, I made a trial by judge order.

6. The evidence in the judge-alone trial commenced on 7 April 2025 and completed the next day, 8 April 2025. It consisted of:

(a) agreed facts pursuant to s191 of the Evidence Act 1995 (NSW) (Exhibit A); (b) a transcript of iMessages; Telegram messages; and mobile phone text messages passing between Mr Lang and Ms Phan between 29 April 2023 and 7 May 2023 (inclusive) (Exhibit B); (c) a Google Map image of the premises at 26 Woodpark Road, West Guildford and surrounding premises (Exhibit 1); and (d) the oral evidence of Ms Phan.

7. For completeness, I note that no evidence was given by Mr Mallise or Mr Lang. I shall not speculate about why they were not called to give evidence; nor what either of them might have said if he had been called.

8. The offence of accessory before the fact to attempted robbery in company has four elements, each of which needs to be proved by the Crown beyond reasonable doubt before a verdict of guilty can be reached.

9. Those four elements, and relevant sub-elements, have been set out by the parties in an agreed elements document (MFI-4), which I incorporate by reference – subject to the following observations.

10. First, I add to the list of six facts which need to be proved beyond reasonable doubt, under the heading “Robbery in Company”, another fact (to be inserted in that list immediately after [3]):

​​​​​​​"[3a] Without the consent of the owner of the property (consent obtained through actual violence or threat of violence is not consent).”

11. 11. Secondly, I would redraft [5] as follows:

“By the use of actual violence or by putting the owner or person in lawful possession in fear of actual violence.”

12. Thirdly, as this case was opened by the solicitor advocate for the Crown and counsel for Ms Phan:

“…the sole issue for determination… is whether the accused… knew about [Mr] Lang’s plans to commit the robbery and, with that knowledge, she provided assistance to [Mr] Lang in the preparations to commit that offence… There is no dispute that the accused did assist [Mr] Lang by hiring the BMW, which was ultimately used in the commission of the attempted robbery, but the issue for determination is whether the accused did so with the intention of assisting [Mr] Lang to commit the attempted robbery in company” [T7:40-8:2, 07 April 2025].

13. This was the agreed position of the parties, and the trial was conducted accordingly until after the evidence was closed (T88:36, 08 April 2025), and after the agreed elements document (MFI-4) had been filed (T91:50, 08 April 2025). There was then some initial discussion on 9 April 2025 as to whether this was an appropriate case for the Crown to negative a claim of right by Mr Lang to money in the possession of Mr Mallise. The initial discussions gave rise to substantive submissions.

14. As I have indicated, this issue was not raised by either party; it was raised by the Court (see R v Fuge [2001] NSWCCA 208 at [26] per Wood CJ at CL, with whom Heydon JA and Sully J agreed).

15. In the present case, there was no evidence that Mr Lang had a genuine belief that he had a legitimate entitlement to any money from Mr Mallise, the subject of the attempted robbery; nor was there any evidence of a genuine belief on the part of Ms Phan that Mr Lang had a legitimate claim to that money. In this context, it is relevant to note that after Mr Lang was arrested on 12 May 2023, he subsequently entered a plea of guilty, and was sentenced, for the offence (committed on 6 May 2023) of assault with intent to rob whilst armed with a dangerous weapon.

16. The issue of claim of right was, therefore, not sufficiently raised on the evidence so as to place an obligation on the Crown to negative such a claim. In the result, therefore, the only issue for determination is that which was identified by the parties at the commencement of the trial.

17. In my deliberations in relation to that issue, the following general principles have been applied.

18. A critical part of our criminal justice system is that every person accused of a crime is presumed to be innocent of that crime unless / until the Crown proves each element of the relevant case or charge beyond reasonable doubt. “Beyond reasonable doubt” are ordinary, everyday words and that is how I shall apply them.

19. It is not for an accused person to prove her innocence, but for the Crown to prove her guilt to the high standard I have just referred to.

20. I shall decide the relevant issue of fact according to the evidence.

21. There are two broad types of evidence: direct evidence and circumstantial evidence. In this case, and in relation to the only issue for determination, the Crown relies on both direct and circumstantial evidence.

22. In a significant respect, the Crown’s circumstantial case against Ms Phan in relation to that issue involves the drawing of an inference adversely to her from a consideration of other proven facts – that is, primarily from the contents of Exhibit B.

23. Because this is a criminal trial in which I must be satisfied of the guilt of Ms Phan beyond reasonable doubt, I must be extremely careful at drawing any inference adverse to her. I must examine any possible inference to ensure it is a justifiable one. Moreover, I must not draw any adverse inference from direct evidence unless it is the only rational inference in the circumstances.

24. Although Ms Phan exercised her right to silence in declining to participate in an electronically recorded interview with police, she did not exercise that right in this trial but, rather, gave sworn evidence.

25. If Ms Phan’s version in her sworn evidence is positively believed, she must be acquitted.

26. If her version is difficult to accept, but, nevertheless, as a matter of reasonable possibility, might be true, she must be acquitted.

27. If Ms Phan’s sworn evidence is positively disbelieved, then her version should be put to one side and not used against her in any way. But the question will still remain: has the Crown, upon the evidence that is accepted, proved Ms Phan’s guilt beyond reasonable doubt in relation to the Count on the indictment?

28. Ms Phan has called evidence to establish that she is a person of good character. That evidence has not been challenged by the Crown. Therefore, I accept the fact that she is a person of good character.

29. The law provides that a tribunal of fact is entitled to take evidence of an accused’s good character into account in her favour on the question of whether the Crown has proved her guilt beyond reasonable doubt.

30. The fact that an accused is a person of good character is relevant to the likelihood of her having committed the offence alleged. I can take into account her good character by reasoning that such a person is unlikely to have committed the offence charged by the Crown.

31. Further, I can use the fact that Ms Phan is a person of good character to support her credibility. It is open to me to reason that a person of good character is less likely to lie or give a false account in giving an account of events in her evidence.

32. None of this means, of course, that good character provides Ms Phan with some kind of defence. It is only one of the many factors which I am to take into account in determining whether I am satisfied beyond reasonable doubt of her guilt. What weight I give to the fact that she is a person of good character is a matter for me, but it is a matter I should take into account in the ways I have indicated.

33. In giving full effect to that good character direction, I have put to one side evidence concerning Ms Phan’s use of illegal drugs and her statements about wanting to have her ex-boyfriend bashed.

34. As the trial unfolded, and applying the abovementioned general principles, I am satisfied of the following facts (which, unless otherwise identified, are not in dispute between the Crown and Ms Phan).

35. Ms Phan met Mr Keirnan Lang towards the end of 2021 when both of them worked for JD Sports.

36. Mr Lang and Ms Phan were co-workers only for a couple of months before Mr Lang left that employment.

37. The next topic is one which, in substance, is in dispute between the Crown and Ms Phan. In her oral evidence, in my opinion, Ms Phan sought to minimise the nature of her association with Mr Lang, seeking to convey the impression that, after they ceased working together, they had little direct, if any, contact; and that, after they stopped working together, their “…friendship then slowly faded” (T25:35). Her purpose, in my opinion, in seeking to convey that impression was to make it seem unlikely that she would be a confidante of Mr Lang in his undoubted planned criminal enterprise.

38. Ms Phan further said that she was scared of Mr Lang in a physical sense – because of the way he spoke at work and because of his tattoos. She gave no evidence of ever being actually threatened with, or subject to, any act of violence by Mr Lang. Again, her purpose, in my opinion, was to convey the impression that she would be vulnerable to pressure from him.

39. These aspects of Ms Phan’s evidence I do not accept as being truthful for the following reasons.

40. First, it is inconsistent with her involvement in the hiring of the BMW and then making it available for Mr Lang to use, in effect, in any manner he chose; for whatever purpose he chose; and to be trusted to return it (at all or without damage – for which, in either event, she would be responsible to the renter).

41. Secondly, it is inconsistent with her seeking the assistance of Mr Lang to engage in serious criminal activity on her behalf, that is to say the bashing of her ex-boyfriend.

42. Thirdly, it is inconsistent with the affectionate way they addressed each other in Exhibit B: he referred to her as “sis” and “lil dumpling”; she referred to him as “cuz”, “bruv”, “bro” and “boss”.

43. Fourthly, it is inconsistent with the tone of concern and / or platonic intimacy shown by Mr Lang to Ms Phan in Exhibit B at pages 2 to 6; and Ms Phan to Mr Lang at page 21 of Exhibit B.

44. Fifthly, it is inconsistent with the assertive role / tone displayed by Ms Phan in Exhibit B at pages 23 to 28.

45. Returning to the not disputed narrative, on 5 May 2023, Ms Phan booked a BMW motor vehicle for hire through the Uber “rideshare” application (“the BMW”). Ms Phan made that booking, which was in her name and with her relevant contact details, as a result of discussions before that date between her and Mr Lang. In these discussions (clearly only some of which are recorded in Exhibit B – by necessary implication, some pre-date that document, see for example the entry on 30 April 2023 at 8:08am between Mr Lang and Ms Phan), Mr Lang was apparently concerned that the vehicle hired be some form of luxury motor vehicle.

46. The BMW was booked for the 24-hour period 9:00am, 6 May 2023 to 9:00am, 7 May 2023. When not the subject of a hire agreement, the BMW was parked near 425 Malabar Road, Maroubra.

47. On the morning of 6 May 2023 (between 8:00am and 8:30am), Ms Phan drove in her motor vehicle from her residence at Oran Park to Mr Lang’s residential premises at Mirrabooka Crescent, Little Bay.

48. On her arrival at Mr Lang’s premises, Ms Phan parked her motor vehicle and met Mr Lang. She then ordered another Uber motor vehicle at about 9:30am which transported her and Mr Lang to where the BMW was parked at Maroubra. Ms Phan and Mr Lang then got into the BMW (Ms Phan as the driver) and it was then driven back to Mr Lang’s residential premises, arriving there at about 9:45am.

49. After Mr Lang and Ms Phan returned to Mr Lang’s premises, Ms Phan gave possession of the BMW to Mr Lang and then (at about 10:00am) returned to her home in her own motor vehicle.

50. Mr Lang then drove the BMW to ultimately meet up with Mr Byron Mitchell and Mr Patrick Hunuki-Biasutti.

51. At about 8:40pm on 6 May 2023, the BMW containing Mr Lang, Mr Mitchell, Mr Hunuki-Biasutti and Mr Zakaria Diamond arrived at the residential premises at 26 Woodpark Road, Guildford West, and the motor vehicle was parked in the driveway of those premises. Messrs Lang, Mitchell and Hunuki-Biasutti then got out of the BMW. Mr Diamond was not a party to the illegal enterprise attempted to be carried out by Mr Lang and the other two men; he was an unwilling passenger in the motor vehicle.

52. At this time, Mr Scott Mallise was outside his residential premises at 24A Woodpark Road, Guildford West. He was pacing between his premises and the neighbouring premises at 27B Virginia Street. This suggests he was somewhat anxious or agitated; and it seems more likely than not that he was expecting the arrival of Mr Lang.

53. In any event, Mr Mallise was confronted by Messrs Lang, Mtichell and Hunuki-Biasutti. Considerable violence was inflicted on Mr Mallise in the confrontation which then followed by these three co-offenders, one of whom (Mr Mitchell) was in possession of a firearm.

54. During this confrontation, Mr Mallise was stabbed in the leg.

55. These three co-offenders confronted Mr Mallise in this fashion in an attempt to rob him of a significant amount of money - in excess of $50,000.00. I am not satisfied, beyond reasonable doubt, that a goal of the robbery was, in fact, drugs. However, the assailants were unsuccessful in obtaining their objective and they ultimately ran from the scene and drove off in the BMW.

56. None of the above facts, including the hire of the BMW by Ms Phan and her handing of that motor vehicle over to Mr Lang is in dispute. Nor is it in dispute that, in providing Mr Lang with that motor vehicle, Ms Phan assisted him in the commission of the attempted robbery of Mr Mallise.

57. As I have indicated earlier in this judgment, what is in dispute, and the only issue which requires resolution in this trial, is whether the Crown has proved beyond reasonable doubt that, at the time she provided Mr Lang with that motor vehicle, she was aware of his plans to rob Mr Mallise of money and, with that knowledge, provided that assistance (that is, provided him with the motor vehicle).

58. Ms Phan denied on her oath that she had any knowledge of the planned robbery; or the use that the BMW would be put to in that robbery.

59. For the reasons I earlier identified in concluding that identified topics in Ms Phan’s evidence was not truthful, and by having regard to the totality of the text messages in Exhibit B passing between Ms Phan and Mr Lang, I do not believe Ms Phan’s evidence as to her lack of knowledge about the planned robbery; nor do I think that it is reasonably possible that her version is true. In fact, I positively disbelieve her evidence. I shall, therefore, put her oral evidence to one side and focus entirely on the evidence in the Crown case.

60. And this means focusing primarily on the contents of those text messages.

61. Even if the text messages before 6 May 2023 may have had some degree of opaqueness, looked at in isolation, that cannot be said of those of 6 May 2023 (by way of example only, I refer to the message sent from Mr Lang to Ms Phan at 6:37am and her response of 6:39am). Nor could it be said of the messages of 7 May 2023, which (as with the example I have just referred to on 6 May 2023) are overwhelmingly inculpatory. Ms Phan’s evidence that she could not recall sending those messages is, quite frankly, unbelievable. Her contributions were engaged, sharp and logical. There were 90 such messages sent over a 45-minute period. In fact, they have the flavour that Ms Phan was much more involved with the whole plan than the charge against her might suggest.

62. By having regard to the totality of those messages, the only rational inference is that, in making the BMW available to Mr Lang, Ms Phan did so knowing that it was to be used by him in attempting (with others) to rob Mr Mallise of money on 6 May 2023.

63. I am, therefore, satisfied that all four elements of the offence of being an accessory before the fact to attempt a robbery in company have been proved by the Crown beyond reasonable doubt.

64. I find the accused, Samantha Phan, guilty of the Count on the indictment and a conviction is accordingly entered.