DPP v Nguyen, Ho & Nguyen (Ruling no 4) - [2007] VSC 311

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1529 of 2005

THE QUEEN

DANG KHOA NGUYEN, BILL HO AND DANG QUANG NGUYEN

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF RULING:	22 August 2007
CASE MAY BE CITED AS:	R v Nguyen, Ho and Nguyen (Ruling No. 2)
MEDIUM NEUTRAL CITATION:	[2007] VSC 311	Revised 31 October 2007

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EVIDENCE – Propensity evidence - Admissibility of evidence of criminal behaviour of accused – Whether prejudicial effect of evidence outweighs probative value - Section 398A Crimes Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Pirrie with Mr R Hammill	Office of Public Prosecutions
For the First Defendant	Mr W Toohey	Haines & Polites
For the Second Defendant	Mr W Stuart	Valos Black & Associates
For the Third Defendant	Mr M Rochford	Michael J Gleeson & Associates

HER HONOUR:

Mr Dang Khoa Nguyen (“Mr Khoa Nguyen”), Mr Bill Ho and Mr Dang Quang Nguyen (“Mr Quang Nguyen”) have each been charged with the murder of Mr Hieu Luu, the attempted murder of Mr Chau Nguyen and the intentional injuring, without lawful excuse, of Mr Viet Tran and Mr Hung Nguyen at a Carlton flat on 8 November 2004.

Each of the accused admits being present when Mr Luu and Mr Chau Nguyen were shot. Mr Luu died as a result of the shooting. Mr Chau Nguyen survived.

Further, Mr Bill Ho admits shooting Mr Luu and Mr Chau Nguyen. He has also foreshadowed a concession at trial that Mr Duong was indebted to him in relation to a drug transaction at the relevant time.

The prosecution alleges that Mr Khoa Nguyen and his brother, Mr Quang Nguyen, aided and abetted Mr Ho in the murder of Mr Luu and the attempted murder of Mr Chau Nguyen or acted in concert with him or with a common purpose.

Mr Quang Nguyen admits that he had a sword with him in the flat on the night upon which the prosecution alleges that Mr Viet Tran and Mr Hung Nguyen were injured when they were cut by that sword. The prosecution also alleges that Mr Khoa Nguyen and Mr Ho acted as accessories in relation to Mr Quang Nguyen’s crime.

The prosecution seeks to lead evidence as to Mr Khoa Nguyen’s involvement in drug dealing activity with a prospective witness Mr Mau Duong. The evidence is said to relate to Mr Khoa Nguyen’s motive to aid and abet the commission of the offences by his co-accused, or to act in concert with them or pursuant to a common purpose. Mr Khoa Nguyen objects to the admission of the evidence on the grounds that its probative value is outweighed by its prejudicial effect.

The evidence of the dealings between Mr Khoa Nguyen and Mr Mau Duong

Mr Mau Duong made the written statement to police on 8 November 2004. In passages which the prosecution argues are admissible and which Mr Khoa Nguyen asks the Court to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] VSC 311
Decision Date: 22 August 2007

CaseChat Overview and Summary

The defendants in this matter were brought before the court in relation to allegations of drug trafficking and related offences. The dispute centred on the admissibility of certain evidence concerning the defendants' past criminal activities, which the prosecution sought to introduce under section 398A of the Crimes Act 1958. The court had to determine whether the prejudicial effect of this evidence outweighed its probative value in establishing the accused's guilt.

The key legal issue for the court was whether the propensity evidence of the defendants' prior criminal behaviour could be admitted under the statutory provisions. The court was required to balance the probative value of this evidence against any potential prejudicial effect it may have on the trial. The court examined whether the evidence was relevant to a matter that was directly in issue in the case and whether its probative value outweighed the potential for unfair prejudice.

The court concluded that the prejudicial effect of the evidence did indeed outweigh its probative value. It found that the evidence was not sufficiently relevant to the matters in issue in the case to justify its admission. The court emphasised that the primary consideration was the fairness of the trial, and in this instance, the prejudicial effect of the evidence would have a significant adverse impact on the defendants' right to a fair trial. The court therefore ruled that the evidence of the defendants' prior criminal activities was inadmissible.

The court's ruling resulted in the exclusion of the contested evidence from the trial. The final orders confirmed the inadmissibility of the propensity evidence and instructed the trial to proceed without it. This decision highlights the importance of carefully considering the admissibility of propensity evidence and the need to balance probative value against prejudicial effect in accordance with the statutory provisions.

Orders