Duong v The Queen - [2016] HCATrans 63

[2016] HCATrans 063

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B57 of 2015

B e t w e e n -
DANH QUANG DUONG
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GAGELER J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 11 MARCH 2016, AT 1.42 PM

MR A.J. KIMMINS: If it please the Court, I appear for the applicant. (instructed by Mackenzie Mitchell Solicitors)

MR G.P. CASH, QC: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Qld))

GAGELER J: Mr Cash. Thank you.

MR KIMMINS: Could I take the Court to application book 47? Paragraph [5], in my submission, encapsulates the mistake or the error that we submit has been made by the trial judge and also by the Court of Appeal.

GAGELER J: So it is an error in the construction or application of section 24, is it?

MR KIMMINS: Could I indicate that it is in the instruction, in relation to the instruction as well as the direction. Could I possibly develop it this particular way? What we submit is this, that the court erred by finding that in fact what was encapsulated in section 9 and section 6 of the Drugs Misuse Act was in fact a composite offence and not an offence with a circumstance of aggravation. Could I take the Court firstly to section 1 of the Criminal Code which is application book 92 at line 10? Two further areas which touch upon the circumstance of aggravation are at section 564(2) and also at 575, which is on page 93.

So, the first of those is at the bottom of page 92 at about line 42, indicating there is a circumstance of aggravation has to be charged, and 575 at the top of page 93 identifies that a person may be convicted effectively of a simpliciter offence where there is a circumstance of aggravation. We submit that a circumstance of aggravation differs from what are described as particulars, and that is relevant and I will come to very shortly, but could I whilst on page 92 of the application book take the Court to section 564(1) and on the fourth line down there are the words:

and with such particulars as to the alleged time and place of committing the offence –

There is a further reference to “particulars” and that can be found at application book 103 and that is under section 565(e), specifically referring to particulars. So the structure of the Drugs Misuse Act and also the Criminal Code, I would submit, identifies a distinction between what is described as a circumstance of aggravation and what is described as particulars. Could I then take the Court to application book 75 where there is a recitation of section 9 of the Drugs Misuse Act set out therein? Section 9 identifies that:

A person who unlawfully…

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: [2016] HCATrans 63
Decision Date

CaseChat Overview and Summary

In *Duong v The Queen*, the High Court of Australia considered an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales. The appellant, Duong, had been convicted of murder and sentenced to imprisonment. The appeal concerned the admissibility of certain evidence and the fairness of the trial process.

The central legal issues before the High Court were whether the trial judge had erred in admitting evidence obtained in circumstances that may have infringed the appellant's rights, and whether the cumulative effect of certain directions given to the jury, and the admission of that evidence, rendered the trial unfair. Specifically, the Court had to determine if the evidence was obtained in contravention of the *Crimes Act 1900* (NSW) and, if so, whether it should have been excluded under the common law or statutory provisions.

The High Court analysed the provisions of the *Crimes Act* concerning the questioning of suspects and the admissibility of evidence obtained in contravention of those provisions. It applied established principles regarding the discretion to exclude improperly or illegally obtained evidence, considering the balance between the probative value of the evidence and the prejudice it might cause to the accused. The Court also reviewed the adequacy of the trial judge's directions to the jury regarding the use of the evidence and the overall fairness of the trial in light of any errors.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders