Van Le, R. v

A conviction is unsafe where, after the close of the parties’ cases and following substantial jury deliberations, the trial judge reverses a direction in a way that introduces a material route to conviction which has not been tested through the adversarial process. Separate verdicts must ordinarily be reached on the evidence against each defendant. However, a late correction which changes the basis on which the defence was conducted and addresses a factual scenario not explored in closing submissions may amount to a want of due process. The appellate court cannot treat the conviction as safe merely because there was evidence capable of supporting the newly identified route.

The appellant, Quynh Van Huynh, was convicted at Cardiff Crown Court of manslaughter as an alternative to murder and sentenced to nine years’ imprisonment. The prosecution alleged that he had orchestrated a joint assault on Tran Nguyen and had directed Paul Harrison to use serious violence.

The trial judge initially directed the jury that Huynh could be convicted only if Harrison was first convicted of the corresponding offence. After several days of deliberation, the jury asked whether Huynh could be guilty although Harrison was not. The judge then reversed the earlier direction and told the jury to determine each defendant’s case independently. The jury acquitted Harrison and convicted Huynh. The central issue was whether that late change rendered Huynh’s conviction unsafe.

1. Appeal allowed. The court held that Huynh’s conviction was unsafe because the late further direction created a want of due process.

2. The initial directions, the parties’ closing speeches and the defence case had proceeded on the basis that Huynh could not be convicted unless Harrison was convicted. The prosecution case had also consistently linked Huynh’s liability to his alleged direction of Harrison’s violence.

3. The judge’s later direction correctly stated in general terms that each defendant’s case had to be considered separately. It nevertheless amounted to a volte-face. It introduced as a live route to conviction the possibility that Harrison could be acquitted while Huynh was convicted.

4. That route may have been available on the evidence, and the earlier direction may have been favourable to Huynh. But no factual basis for the differing verdicts had been identified, explained or tested in the adversarial procedures before the jury retired. The court could not assess the effect that properly prepared closing submissions on that basis might have had on the jury.

5. There was no criticism of the jury, whose question prompted the correction. However, the untested new basis of liability meant that the verdict could not safely stand. The court therefore allowed the appeal against conviction. The Crown indicated that a retrial was impracticable.

• Court of Appeal (Criminal Division): allowed Huynh’s appeal against conviction and held the manslaughter verdict unsafe.
• Cardiff Crown Court: Huynh was convicted of manslaughter on 1 August 2008 and sentenced to nine years’ imprisonment on 11 August 2008.