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Hoang v R

Hoang v R

Case [2018] NSWCCA 166 3 August 2018

Jurisdiction

Criminal Liability

Miscarriage of Justice

Judicial Review

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Hoang v R [2018] NSWCCA 166
Hearing dates: 2 March 2018
Decision date: 03 August 2018
Before: Hoeben CJ at CL at [1];
Campbell J at [3];
N Adams J at [24]
Decision:
Appeal against conviction is dismissed.

Catchwords: CRIMINAL LAW – Conviction appeal – A juror conducted an internet search about a matter relevant to the trial – The trial judge took 10 verdicts that had already been reached prior to examining and discharging the juror for misconduct – Two further guilty verdicts were reached following the juror’s discharge by the remaining jury members – Whether the juror engaged in misconduct for the purposes of the mandatory discharge provision under s 53A(1)(c) of the Jury Act 1977 (NSW) by making an inquiry contrary to s 68C of the Jury Act or by engaging in conduct that gave rise to the risk of a substantial miscarriage of justice in the trial – Whether the trial judge’s erroneous discharge of the juror was a breach of mandatory provisions of the Jury Act going to the constitution and authority of the jury such that the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW) could not apply with respect to the final two verdicts reached following the juror’s discharge
Legislation Cited: Child Protection (Working with Children) Act 2012 (NSW), Pt 3
Crimes Act 1900 (NSW), ss 61M, 61O, 66A
Criminal Appeal Act 1912 (NSW), ss 5, 5F, 6
Evidence Act 1995 (NSW), s 75
Jury Act 1977 (NSW), ss 22, 53A, 53C, 55DA, 68C, 73, 73A
Jury Amendment Act 2004 (NSW)
Jury Amendment Act 2008 (NSW)
Cases Cited: AK v State of Western Australia (2008) 232 CLR 438; [2008] HCA 8
Bahrami v R [2017] NSWCCA 8
Benbrika v The Queen (2010) 29 VR 593; [2010] VSCA 281
Carr v R [2015] NSWCCA 186
Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52
Crofts v R (1996) 186 CLR 427; [1996] HCA 22
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Folbigg v R [2007] NSWCCA 371
House v The King (1936) 55 CLR 499; [1936] HCA 40
Kalbasi v The State of Western Australia (2018) 352 ALR 1; [2018] HCA 7
Katsuno v The Queen (1999) 199 CLR 40; [1999] HCA 50
Li v R (2010) 265 ALR 445; [2010] NSWCCA 40
Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31
Petroulias v R (2007) 73 NSWLR 134; [2007] NSWCCA 134
R v Brown & Tran (2004) 148 A Crim R 268; [2004] NSWCCA 324
R v JP (No 1) [2013] NSWSC 1678
R v K (2003) 59 NSWLR 431; [2003] NSWCCA 406
R v Lamb [2016] NSWCCA 135
R v McCormack (1996) 85 A Crim R 445
R v Sio (No 3) [2013] NSWSC 1414
R v Skaf (2004) 60 NSWLR 86

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.

Continue reading Hoang v R

Details

AGLC: Hoang v The Queen [2018] NSWCCA 166
Case: [2018] NSWCCA 166
Decision Date: 03 August 2018

CaseChat Overview and Summary

In the case of Hoang v R, the appellant, Hoang, was convicted of drug trafficking offences. Hoang sought to appeal against his conviction, arguing that the trial judge's handling of a juror's misconduct was flawed. The juror had conducted an internet search about a matter relevant to the trial, which was considered misconduct under the Jury Act 1977 (NSW). The trial judge discharged the juror and subsequently took verdicts that had already been reached by the jury before examining the juror's conduct. After the discharge of the juror, two further guilty verdicts were reached by the remaining jury members. Hoang contended that the trial judge's actions in taking the initial verdicts and discharging the juror were improper and that the final verdicts were therefore invalid.

The legal issues before the court were whether the juror's conduct constituted misconduct warranting discharge under s 53A(1)(c) of the Jury Act and whether the trial judge's erroneous discharge of the juror breached the mandatory provisions of the Jury Act such that it undermined the authority of the jury. The court had to determine if the error in the discharge of the juror was so significant that it rendered the final verdicts invalid under s 6(1) of the Criminal Appeal Act 1912 (NSW).

The court held that the juror's internet search did constitute misconduct under s 53A(1)(c) of the Jury Act. However, the court found that the trial judge's erroneous discharge of the juror did not breach the mandatory provisions of the Jury Act to such an extent that it undermined the authority of the jury. The court reasoned that the error did not prevent the remaining jury members from continuing to deliberate and reach a verdict. Consequently, the court concluded that the final verdicts reached by the jury were valid, and the appeal against conviction was dismissed.

Orders