Huy Binh Huynh v Police No. Scciv-02-1487

HUY BINH HUYNH V POLICE
[2003] SASC 13

Gray J This is an appeal against findings of guilt and sentence.
Background
This matter has a long and complicated history. It is necessary to recount considerable background material to fully understand the appellant’s position and to appreciate the wider implications of the appeal.
On appeal Huy Binh Huynh appeared unrepresented. The hearing was adjourned on a number of occasions to enable him to seek legal advice. However Mr Huynh declined to obtain legal representation. Mr Huynh attended school in Australia and had obtained tertiary qualifications from a Melbourne university. At all times he demonstrated fluency and comprehension of English. I am satisfied that he understood the nature and content of the appeal proceedings.
The Crown Allegations
Mr Huynh was charged with common assault and causing property damage.[1] The Crown case was that he lived in the same block of flats as the female victim and her husband. At about 9.30 pm on the day of the incident the victim’s husband was moving out of their flat. The victim and her four year old niece were seated in the victim’s vehicle in the nearby carpark. An argument about an undisclosed matter occurred between Mr Huynh and the victim’s husband in the carpark. Mr Huynh returned to his flat and obtained a hammer. He then returned to the carpark and hit the victim in the head with the hammer. He smashed the vehicle’s back lights and driver’s side window. He then returned to his flat, obtained a knife and threatened the victim’s husband.
Court Proceedings and Contact with the Police
[1] The complaint was in the following terms:
Mr Huynh was arrested on 12 December 2001. He was granted bail on 13 December 2001. The conditions of his bail agreement were that he forfeit $400 to the Crown should he fail to comply with the agreement. It appears from the file endorsements that he appeared in court on 18 and 28 January 2002 and 4 April 2002. He was represented on 18 January 2002 but was otherwise unrepresented. A pre-trial conference then occurred on 4 April 2002 and the matter was listed for trial on 5 June 2002.
The prosecutor forwarded to Mr Huynh the statements the police intended to rely on to prove the charges. On 2 May 2002 Mr Huynh left a telephone message for the prosecutor. The prosecutor returned the call on 16 May 2002. The substance of the conversation is found in the prosecutor’s affidavit which included:
“[Mr Huynh] stated that he had not been summonsed to appear in court... I told him that he had been arrested and therefore would not have been summonsed. I confirmed that he had received a letter and the statements from me. I gathered …that [Mr Huynh] was aware of the trial date, but he told me that as this had cost him time and money already he would not be coming to court. [Mr Huynh] asked “What am I doing with these charges, they are a joke”. I advised him that if he had a version of events which could assist me in deciding whether or not to proceed that he should write to me or see me in person.”
The Trial
On 5 June 2002 the day of trial Mr Huynh did not appear. The prosecutor applied to proceed ex parte. The magistrate granted the application. The trial proceeded in Mr Huynh’s absence.
The Crown called evidence from the victim and her husband. Evidence was also given by the attending police officer. The weapon said by the Crown to have been used in the incident a claw hammer was tendered along with a quote detailing the repairs to the allegedly damaged motor vehicle.
At the conclusion of the Crown case the magistrate found the case proved. No reasons were provided. However the transcript provides:
“I am satisfied that the defendant committed both offences. He is convicted of each charge. I think in light of the allegations I have heard and the circumstances I am going to issue a warrant for his arrest and get him here for sentencing.”
The magistrate issued a warrant for Mr Huynh’s arrest.
Bail Variation and Additional Court Proceedings
On 15 July 2002 following his arrest Mr Huynh appeared before the same magistrate. Bail was granted on condition that he not leave the State without lawful permission, forfeit $500 if he failed to comply with the bail agreement and that he reside at a residence at Salisbury East. The case was adjourned until 26 July 2002 for sentence. On 26 July 2002 Mr Huynh again appeared before the same magistrate. He sought an adjournment to obtain legal advice. The case was adjourned until 23 August 2002. Bail continued.
On 2 August 2002 the matter came on before a different magistrate. Mr Huynh sought to vary the terms of bail due to a change of address. He indicated that he wanted to plead not guilty. It appears that no-one’s attention was drawn to the fact that Mr Huynh had already been found guilty of the charges. The matter was adjourned until 23 August 2002 before the original magistrate to enable Mr Huynh to seek legal advice.
On 23 August 2002 the matter came on before a third magistrate. The appellant was unrepresented. A pre-trial conference was listed for 3 October 2002. Again it appears that no-one’s attention was drawn to the fact that Mr Huynh had already been found guilty of both charges.
The Pleas of Guilty
On 3 October 2002 Mr Huynh appeared unrepresented before a fourth magistrate. Mr Huynh said that he was concerned that a conviction would affect his employment as an engineer. He requested that the matter be listed for trial. The magistrate granted the application and a trial date was fixed. No-one’s attention was drawn to the fact that Mr Hunyh had already been found guilty of both offences. Up until this point Mr Huynh does not dispute the accuracy of the court records. However he joined issue with the sequence of events deposed to by the prosecutor Constable Walter-Smith:
“…[Mr Huynh] then asked [on 3 October 2002] the court for permission to allow him to travel interstate to visit a sick relative despite the conditions of his bail agreement. His Honour refused to grant that application. …[Mr Huynh] then became quite agitated, and told his Honour that if that were the case, he wanted to deal with the matter today by way of guilty plea. His Honour told [Mr Huynh] that as he had intimated a not guilty plea, the Court would not simply convict him now for his own convenience. His Honour told [Mr Huynh] that he should go away and think about the matter further. The matter was adjourned. Some time later on 3rd October 2002, I was in my office when I received a phone call from [Mr Huynh]. [He] told me that he wanted to go back to Court and plead guilty to the charges. I told him that if he wanted the matter called back on, he would need to contact the Court. Subsequently on the same afternoon, I received a call from the Court asking me to attend as the matter was being called back on. The matter was called on before [the same magistrate] and [Mr Huynh] appeared unrepresented. The charges were read and [Mr Huynh] entered a plea of guilty.”
The facts then outlined by the prosecutor to the magistrate were that at about 9:30 pm on 12 December 2001 the victim was in the process of moving property from her upstairs flat to her vehicle. Mr Huynh approached her while she was in the carpark and hit her on the head with a hammer. She then got into her vehicle and he broke the driver’s side windscreen and the rear tail light with a hammer. When initially questioned by police the appellant admitted that he broke the window of the victim’s car with a hammer. After he was arrested he declined to answer questions. Mr Huynh did not dispute these allegations.
Sentencing
The prosecutor made no submissions as to penalty but informed the court that Mr Huynh had no prior convictions. An application for reparation was made in the amount of $1,446.50.
Mr Huynh requested that convictions not be recorded given his concern about their effect on his employment. The prosecutor informed the court that there was no opposition to the magistrate sentencing without convictions. The magistrate then sentenced Mr Huynh. He declined to record convictions on either count. However he imposed a fine of $500 and ordered that Mr Huynh pay costs, court fees and levies. He also ordered that Mr Huynh pay the full amount of reparation sought. No sentencing remarks were provided.
The Notice of Appeal
Mr Huynh’s notice of appeal does not purport to appeal against conviction or sentence. However from the written explanation provided it appears that Mr Huynh seeks to have the findings of guilt and the convictions set aside. The document provides:
“I had a pre-trial conference on the 3/10/02. A trial was order for the 22/10/02. But without appropriate legal advice I went back in court after the pre-trial conference to plea guilty because I need to visit sick relative interstate and the complicated bail conditions do not allow me to do so. I have a strong defence for my case. I would like a trial to be reorder in order for me to clear my name. I’ve been pleading “not guilty” for nearly a year and it would be senselessly for me to just pleaded “guilty” now. It was a stupid mistake. I need to change my plea in order for a trial to be conducted because I’m not guilty of any criminal offences regarding this case at all. I have my own statement regarding this case which strongly supports a “not guilty” verdict on all charges.”
The written notice of appeal appears to complain about the magistrate’s order of 3 October 2002. However during the course of the appeal it became clear that Mr Huynh also complained about the proceedings that occurred on 5 June 2002. Counsel for the Crown was willing to treat the notice of appeal as encompassing both proceedings. Accordingly I adopt this approach.
Issues on Appeal
As earlier observed the findings of guilt on both counts were made on 5 June 2002. Convictions were recorded. It appears that errors in listing and the change in presiding magistrates and prosecutors led the court and the prosecutor to treat the appellant’s alleged guilt as if it had not been decided. All apparently proceeded in ignorance of what had occurred before. Counsel for the Crown accepted that the proceedings before the sentencing magistrate should be set aside as they were a nullity. There was also raised for determination the question whether the findings of guilt and the convictions made by the trial magistrate should be set aside. This appeal involves a consideration of the principles of autrefois convict and the rule against double jeopardy.
Whether Proceedings were a Nullity
Although Mr Huynh’s guilt was established on both counts on 5 June 2002, another magistrate proceeded to accept pleas of guilty to those counts on 3 October 2002. This situation appears to have arisen because of a complete misunderstanding about what had previously occurred. It has not been possible to identify why no-one realised that Mr Huynh had been previously dealt with for these offences. This is a classic case of autrefois convict[2]. A person ought not to be tried more than once in respect of the same matter. An accused may not be tried for an offence if he or she has previously been convicted of the same offence. In Connelly v Director of Public Prosecutions[3] Lord Pearce said:
“A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal. And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases. Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases an avowed judicial discretion based on the broader principles which underlie the pleas.”
[2] Section 285 of the Criminal Law Consolidation Act 1935 (SA) provides:
[3] [1964] AC 1254 at 1364
In Pearce v The Queen[4] McHugh, Hayne and Callinan JJ observed:
[4] (1998) 194 CLR 610 at [9-10] see also The Queen v Carroll [2002] HCA 55
“The expression ‘double jeopardy’ is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be ‘punished again for the same matter’. Further, ‘double jeopardy’ is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.
If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States[5]:
[5] (1957) 355 US 184 at 187-188
‘The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty’
The underlying idea can be seen behind the pleas in bar of autrefois acquit and autrefois convict as well as behind the other forms or manifestations of the rule against double jeopardy.
…
It has been said that the rationale of the rule against ‘double jeopardy’ applies to the question of the quantification of punishment as well as to the determination of guilt or innocence.…”
After reviewing the position in other jurisdictions Kirby J considered English authority and observed:
“[T]he law does not permit a man to be twice in peril of being convicted of the same offence.
…
Except for accidental oversight or lack of coordination between prosecuting authorities[6], it is virtually unthinkable that an accused person would ever be charged with exactly the same offence twice[7]. ”
[6] R v Beedie [1998] QB 356 at 366-367
[7] Pearce v The Queen (1998) 194 CLR 610 at [102] [108]
The findings of guilt and the sentence imposed on 3 October 2002 cannot stand. The proceedings were so permeated by factual error and misunderstanding that they must be set aside. However there is no need to consider these matters further because of the principle of autrefois convict.
The ex parte Proceedings 5 June 2002
This leaves Mr Huynh in the position that he was in as a result of the ex parte proceedings on 5 June 2002. His guilt had been established and he had been convicted of both counts. As earlier observed the issue becomes should the findings of guilt and convictions imposed by the trial magistrate stand?
The power of a summary court to proceed ex parte is found in section 62A(1) of the Summary Procedure Act 1921 (SA) which provides:
“If a person who has been apprehended (whether under a warrant or without a warrant), and released on bail fails to appear at the time and place appointed for the hearing of a complaint laid or to be laid against him, the court may in its discretion hear the complaint ex parte, and may adjudicate thereon as fully and effectually, to all intents and purposes, as if the defendant had appeared at that time and place.”
The Crown Case
Counsel for the Crown submitted that on the day of trial the prosecutor informed the court that Mr Huynh had indicated that he was not going to attend. The magistrate was faced with witnesses and a Vietnamese interpreter who were ready to proceed. It was said that she weighed Mr Huynh’s position against the inconvenience to the court and the Crown witnesses. She appropriately exercised her discretion to proceed ex parte.
Counsel submitted that Mr Huynh’s position had been adequately protected. He had been present when the matter was listed for trial. He had indicated to the prosecutor over the telephone that he did not wish to attend. His right to be present during the trial process, to cross examine and call witnesses had not been infringed. There was no risk of a miscarriage of justice as Mr Huynh had voluntarily absented himself from the trial. The trial was not unfair. It was within the magistrate’s discretion to proceed as she did.
Counsel for the Crown further submitted that Mr Huynh’s non-attendance on 5 June 2002 was wilful. It was said that he deliberately absented himself from his trial and then sought to have the convictions withdrawn and a new trial ordered. When it subsequently became apparent that no-one realised Mr Huynh had already been found guilty he attempted to manipulate the legal process for his own convenience. To this end when he could not obtain permission to vary his bail conditions to allow him to travel interstate he decided to plead guilty. He then lodged an appeal seeking to withdraw the plea having travelled interstate and achieved his intended purpose.
The Defence Case
Mr Huynh sought ultimately to have a re-trial and have the issue of guilt reconsidered. It was Mr Huynh’s case that he had a defence to both charges. He acted in self defence. Mr Huynh said that the victim’s husband initially attacked him. He said that he was unsure why he was attacked other than that the victim’s husband was “out of control” or “mad at me for something”. He also complained about the convictions imposed.
Prior to the hearing of the appeal Mr Huynh wrote to the court. He provided a written statement which purported to be “evidence to support [his position on] appeal that [he] did not commit any criminal offences” and that “Whatever I did after the husband started attacking me on the night of 12 December 2001, I only did so in self-defence.” The statement included:
“…I did not fight with the husband initially, but instead he attacked me unprovoked…While I was watching the husband moving out of his flat. He swore at me then approach me to kick my face and then quickly run back to one of his bags and grab a metal can out of it. The metal can is about 25cm in length and 5 cm in diameter. He then charged in to smash my head with it. All of this happened in about 10 seconds. The level of violence, the willingness and the speed of which he attacked me caused me to fear for my life.
As I was struggling to defend myself when the woman got out of her car and got physically involved. She saw the husband attacked me, but yet she still wanted to help her husband. The woman seemed to be very dangerous at the time. She was very eager to be involved to help her husband to attack me…so, as long as they were still there I just not felt safe. I had to make sure that there were nothing else available for them to use to attack me with and force them off the property somehow. This is where the woman got hurt. It was kind of an accident because it was very dark at the time and the husband, the primary target was sort of standing in front of the woman and run off in the last minute. The woman then went in the car with her husband besides it, of what appeared to be either she was handling him something or he was getting something to continue attacking me with…I was afraid that there might be knives that had been moved from their kitchen to the car or anything else for that matter that he or the woman can use to attack me with…So, I approached the car quickly in the hope that whatever the husband was trying to get, he won’t be able to get it. When I got there the husband run off again, perhaps to another bag that he had. I couldn’t see what’s inside the car at all because the windscreen was too darkly tinted and there wasn’t much light in the carpark. I demanded the woman to open its door so that I could check what’s inside. I tried this a number of times with no answer and the woman didn’t seem to want to turn on the vehicle to leave despite what happened. Since they were still around, obviously they still wanted to attack me. How were they going to do that? I didn’t know for sure but I wouldn’t want to find out because by then it could be too dangerous for me…it was very dark and I was in a very vulnerable position, so until I could force them off the property, I just didn’t know what better else to do. I intended to smash the windscreen, but I fear that the woman might got hurt. So I decided to hit the tail light instead to give her a chance to open the door or to leave. But after I asked the woman a couple more times to open the car door with no answer. I was still very scared that they were going to use the stuff from inside the car to attack me, so I carefully smashed the driver’s windscreen…When I was satisfied that there were nothing else in the car that anybody can use to attack me with, I left.
After that I was just contended to threaten the husband with a knife from a distance at the flat’s staircase with the hope that he would stop attacking me and leave…the whole incident took about 2 minutes.”
Fresh Evidence

In R v O’Neill[8] Martin J with whom Lander and Besanko JJ agreed said:
“It is not easy to formulate a principle or test to guide an approach to the ultimate question in the circumstances under consideration. There was no defect in the trial that caused the trial to be unfair. The absence of evidence from the accused was caused by a deliberate choice made by the accused during the trial. The accused's voluntary decision to be absent from the trial is taken to be a waiver of his right to be present. In that situation, there is considerable force in the proposition that the accused has thereby waived the right to give evidence. When an accused makes such a conscious decision concerning the conduct of the trial, there are sound reasons of policy why the accused should be bound by that conduct and by the result of the trial even if the decision was unwise. However, there is an obvious tension between such policy considerations and the policy which underlies s353(1) that a miscarriage of justice, however caused should not be permitted to stand. As King CJ observed in R v McIntee (1985) 38 SASR 432 at 435 in the context of an appeal involving fresh evidence deliberately withheld from a sentencing judge:
‘The rules relating to fresh evidence, like all rules of law, should be applied so as to serve and not to frustrate the interests of justice. I have no doubt that appellate courts will always receive fresh evidence if it can be clearly shown that failure to receive such evidence might have the result that an unjust conviction or an unjust sentence is permitted to stand.’”
[8] (2001-2002) 81 SASR 359 at [46]
Counsel for the Crown submitted that the material provided by Mr Huynh was not in the nature of fresh evidence. Accordingly Mr Huynh had to persuade this court that if the material had been put at trial then the trial magistrate acting reasonably must necessarily have had a reasonable doubt about his guilt.[9] It was submitted that public policy considerations applied and that this court should not interfere unnecessarily with the results of a fair trial.
[9] Ventura v Sustek (1976) 14 SASR 395 at 399; Orchard v Orchard (1972) 3 SASR 89; Ladd v Marshall [1954] 1 WLR 1489; R v Dorning (1981) 27 SASR 481; R v McIntee (1985) 38 SASR 432; R v O’Neill (2001-2002) 81 SASR 359
In support of his position Mr Huynh gave evidence on appeal. His evidence will be discussed in detail later. Counsel for the Crown tendered a number of affidavits and the transcript of proceedings before the trial magistrate. Constable Andrew Kenneth Steven Halford the police prosecutor gave evidence about his telephone conversation with Mr Huynh. He said that Mr Huynh did not tell him anything that indicated he feared attending court on the day of his trial. The cross examination included:
“Mr Huynh:                So I obviously said that this is a joke; right.
Constable Halford:        You did, yes. …
Mr Huynh:                  I did tell you that I won’t be going to court, didn’t I.
Constable Halford:        You told me that you hadn’t been summonsed. I advised you you had been arrested and placed on bail and, by the endorsements on the police brief cover, you had attended court on a number of occasions for that matter and it wasn’t my duty to summons you to court for your trial. I summonsed my witnesses I am required to call as part of my job preparing for a trial, I was not at liberty to summons you-
Mr Huynh: But I did say I won’t be showing up in court because I think it is a joke.
Constable Halford:        That’s what you told me, yes”
Mr Huynh did not dispute Constable Halford’s account of the conversation.
When Mr Huynh gave evidence about the reason for his non attendance at court on 5 June 2002 he confirmed that this was one of the reasons. Several other explanations were proffered - Mr Huynh was shocked by the seriousness of the situation in which he found himself, he was unsure what he should do and that he was afraid that he would be attacked by the victim and her family outside court, Mr Huynh also said that he was too angry to tell the police about his fear or explain why he would not be attending court. Mr Huynh’s evidence included:
“A. Throughout the meetings that were scheduled for me to appear in the Magistrates Court, and throughout those periods, I was unable to receive any sort of information in regards to the police prosecution at all until that document that Mr Andrew Halford sent to me. That is like a few weeks before the actual trial date, that is when I have the information. So when I read the information, it just seems like unreal to me because, first of all, this person was attacking me and now I have to go to court, he was there and this woman, her name is like my mother’s name, so it came as bit of a shock, so I am not sure what to do. So if I go there, and he is going to attack me and unable to defend myself because, as the police said, I defended myself before and I got into trouble, so if I go there with him, and his family were there as well, should I get attacked outside of court, which highly probable, then I am not really sure what’s going to happen.
…
Q.    Why didn’t you tell the police officer that.
A.At the time he rang me I was leaving for work, and I wanted to tell him, but I guess I was just too angry.
…
Q. And you knew at the time, didn’t you, that the conditions of your bail required you to attend in court.
A.     Yes.
…
Q.     You simply chose not to show up at the court.
A.     Very reluctantly, yes.
Q. You also told his Honour that the reason why you thought that if you didn’t show up that the court would adjourn again, is that so.
A.     Yes, we thought that they might adjourn again for a trial, yes.
Q. What were you going to do then, if there was a further adjournment. What did you plan to do.
A.     I guess I’d just go in there.”
Q.     You expected that the court would be adjourned.
A. Hopefully they would adjourn, I hope. I don’t expect it to be adjourned.”
With respect to his plea of guilty on 3 October 2002 Mr Huynh’s
evidence included:
“Q.    …so you recall pleading guilty.
A.     Yes, but probably under duress, yes.
Q.     That was under duress, was it.
A.     Yes.
Q. You recall earlier that day you had applied to the court for permission to travel interstate.
A.     No.
Q.     You don’t recall that.
A.     No, I have not applied. I only applied changing address, yes.
Q.     Didn’t you want permission from the court to travel interstate.
A.     No, never asked.
Q.     You didn’t ask for that.
A.     No, I don’t recall that.
…
Q.     How was it then that you came to plead guilty that same day.
A. At the pre-trial conference, again, I have this very complicated bail conditions, and the bail conditions have been imposed on me, like, for a long, long time, and restricted me from travelling interstate and living in a different address, for instance, and besides, I was just a few weeks before I got evicted and I got dismissed from my employment, and, you know, I have to go through all that trauma, so it is quite difficult for me to go through that, so I just plead guilty just to pretty much end it temporarily, so I can get out of South Australia to have a clear think of what is happening, basically. That’s what the plea of guilty was for.
Q. So you pleaded guilty because you wanted to get out of South Australia.
A. No, because I’ve been involved in lot of difficulties, and the reason was because I was leaving here, so I pleaded guilty to end the bail conditions so I can leave this State, visit my sick mother who was very sick at the time, and have a clear think about this case again, whether I want to go ahead with it, and because I’m not so sure what penalty or decision has been imposed, that’s my reason why.
Q. Looking at the affidavit of Mr Walter Smith, you will see that he says that you asked permission to leave –
A. I did not ask that. I did not raise the question I want to visit sick relative.
Q.     What did you ask the court to do then.
A.     I did not ask the court to do anything. I just plead guilty, and that’s it.
Q. This affidavit – what Mr Walter Smith said is not true there, you didn’t-
A.     I don’t recall it.
Q.     You don’t recall it.
A.     I don’t think I have asked either.
Q.     It could have happened though.
A.No, I don’t think so. I did ask the registrar, I think, after the pre-trial conference, I ring her and ask the registrar about it, but she wasn’t clear at all, so in the confusion I just asked to go back into court and I just plead guilty to end all this complex conditions.
Q. You wanted to plead guilty because you didn’t want to be subject to the bail agreement, is that so.
A. A lot of reasons. One of those reasons, the subject of those bail conditions.
…
Q. Isn’t the truth of the matter that you wanted to be free of your bail conditions, that’s so.
A.     That’s one of the reasons.
…
Q.     You wanted to be free to go interstate, didn’t you.
A.     Yes, but I never asked.
…
Q. I put it to you that the reason why you pleaded guilty was so you were then free to travel interstate.
A.     That’s one of the reasons, yes.”
I am satisfied that Mr Huyn was guilty of assault and causing property damage. His asserted defence is not plausible. On his own admission his account does not give rise to an arguable case of self defence[10]. Mr Huynh had at least two opportunities to retreat from the confrontation. He did not do so. Instead Mr Huynh continued to behave aggressively towards the victim and her family. At some time during the confrontation Mr Huynh went back to his flat to obtain a hammer. He then used the hammer to hit the victim. He struck her in the head with the handle of the hammer. He then smashed the tail light and the window of the vehicle in which she was sitting. Mr Huynh then returned to his flat a second time and obtained a knife which he used to threaten the victim’s husband. Mr Huynh chose not to withdraw and remain at his flat. He chose not to use his mobile telephone to call for help or police assistance.
[10] Section 15 of the Criminal Law Consolidation Act 1935 (SA) provides:
The precise reason behind Mr Huynh’s non attendance at court on 5 June 2002 is unclear. On the one hand he asserted that he thought the court proceedings were a joke. He also asserted that he was frightened of the victim and her family but that he was too angry with the police to tell them. Further he said that he had hoped the proceedings would be adjourned in his absence.
Mr Huynh did not challenge Constable Halford’s account of the telephone conversation. No factual basis has been laid to establish that Mr Huynh was fearful of the victim or her family prior to or on the day of trial. Mr Huynh had the opportunity to explain to the police the basis of any possible fear. He chose not to do so. Mr Huynh had been to court previously in relation to these charges and must have had at least some awareness of the presence of security staff working within the court precincts.
When Mr Huynh’s oral evidence and written statement are viewed in conjunction with the prosecutors’ affidavits and the trial transcript the case against Mr Huynh is overwhelming. The trial magistrate’s findings of guilt on both counts are supported by a significant body of evidence. I am satisfied that Mr Huynh’s absence from court on 5 June 2002 was voluntary. Even if Mr Huynh’s reasons for his non-attendance were not viewed as such, I am satisfied that no miscarriage of justice has been occasioned in this case. Accordingly Mr Huynh’s complaint against the trial magistrate’s findings of guilt is of no substance. The findings of guilt stand.
The Recording of a Conviction
The next issue for determination is should the trial magistrate have imposed convictions? As earlier observed the trial transcript provided:
“I am satisfied that [Mr Huynh] committed both offences. He is convicted of each charge. I think in light of the allegations I have heard and the circumstances I am going to issue a warrant for his arrest and get him here for sentencing.”
The magistrate’s decision to impose convictions immediately after the findings of guilt, prior to the hearing of sentencing submissions and in the absence of Mr Huynh was erroneous. The magistrate’s power to act pursuant to section 16 of the Criminal Law (Sentencing) Act 1988 (SA) and proceed without conviction was constrained by her approach. Section 16 provides:
“Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion-
(a) that the defendant is unlikely to commit such an offence again; and
(b) that, having regard to-
(i) the character, antecedents, age or physical or mental condition of the defendant; or
(ii) the fact that the offence was trifling; or
(iii) any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.”
The magistrate inappropriately fettered her sentencing discretion. She proposed to have Mr Huynh brought to court for sentencing. However Mr Huynh was denied the opportunity to attend and demonstrate that good reason existed for proceeding without convictions. A consideration of section 16 was particularly important in this case given Mr Huynh’s later concern before the sentencing magistrate that as an engineer a conviction or convictions could affect his employment prospects. The magistrate failed to have regard to a relevant consideration. Error has been demonstrated.[11] The convictions should be set aside. Counsel for the Crown accepted that the magistrate’s approach was erroneous and that this was the appropriate course. Mr Huynh must be sentenced afresh.
[11] “The approach of an appellate court when reviewing sentences has been the subject of recent comment by the High Court in Dinsdale v R [11]. Gleeson CJ and Hayne J said at [3-4]:
Sentence
Both parties agreed that this court should proceed to sentence Mr Huynh rather than to remit the matter to be dealt with by the trial magistrate. Counsel for the Crown accepted that it would be unfair to impose a greater punishment on Mr Huynh than had already been imposed on the basis that principles akin to double jeopardy operated to prevent him from being in effect punished twice.
It was said by counsel for the Crown that the sentence imposed by the sentencing magistrate of a fine of $500.00, a reparation order of $1446.50.00 and costs, court fees and levies was lenient. However given that the prosecutor had not opposed proceeding without convictions and the sentencing magistrate had adopted this course it was accepted that it would be unfair to expose Mr Huynh to a greater penalty than that which had been previously imposed.
Counsel for the Crown accepted that when sentencing Mr Huynh the appropriate factual basis on which to proceed was that outlined by him in his written letter in so far as that was not inconsistent with the trial magistrate’s findings of guilt. Mr Huynh’s actions were violent and aggressive. On his own admission he caused the property damage alleged by the Crown and he struck the victim in the head using a hammer. The assault caused minor injury.
I am unable to determine whether Mr Huynh knowingly took advantage of the events and proceedings before the sentencing magistrate however I treat him as though he was caught up in the earlier recounted misunderstanding.
The sentencing magistrate was very lenient in imposing the penalty that he did. Had I been sentencing Mr Huynh in different circumstances I would have been inclined to have ordered convictions, a fine, reparation, a substantial period of community service and a bond with conditions including anger management.
Mr Huynh was born in Vietnam. He is now aged 30 years. He arrived in Australia in 1988. He could speak reasonable English before he came to Australia. He undertook secondary education in Melbourne and successful tertiary study at the university of Melbourne. Mr Huynh has engineering qualifications. He currently resides in Footscray in Melbourne. He has resided there since lodging his appeal. Mr Huynh’s mother also lives in Melbourne. Some time prior to this incident Mr Huynh resided in Footscray for three years. He then moved to Adelaide and lived with relatives and friends at a rented property in St Marys. Mr Huynh also spoke of being evicted from that property and being dismissed from his employment at some time proximate to the incident and his trial.
During sentencing submissions before this court Mr Huynh asserted “you Honour can make any decision your Honour thinks is reasonable.” Mr Huynh accepted that he had caused the amount of damage asserted by the Crown. He did not object to the amount of reparation ordered by the sentencing magistrate but accepted that this had not been paid. Mr Huynh had paid the fine and court costs. He agreed that those moneys although paid pursuant to an order that was a nullity could be re-directed to be applied in regard to a fine and fees in the same amount should they be imposed by this court.
The court orders are that:
- the orders of the Magistrates Court of South Australia at Elizabeth on 3 October 2002 be set aside.
- the appeal against the findings of guilt made by the Magistrates Court of South Australia at Elizabeth on the 5 June 2002 be dismissed.
- the convictions recorded against Mr Huynh by the Magistrates Court of South Australia at Elizabeth on the 5 June 2002 be set aside.
- Mr Huynh be fined $500.00; court fees $108.70; Levy $56.00; Prosecution costs $16.00; total $680.70.
- Mr Huynh pay compensation in the amount of $1446.50 to the Registrar of the Magistrates Court of South Australia at Elizabeth for and on behalf of [the victim], such payment to be paid at the rate of $120.00 per month.
- Any fine and other fees, levy or costs paid by Mr Huynh as a result of the orders made by the Magistrates Court of South Australia at Elizabeth on 3 October 2002 will stand as credit against the fine, fees, levy and costs imposed by the order of this court.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1      The complaint was in the following terms:
“On the 12^th day of December 2001 at Salisbury East in the said State, intending to damage the property of another or being recklessly indifferent as to whether such property was damaged, without lawful authority to damage such property and knowing that no such lawful authority existed [Huy Binh Huynh] damaged a car window and tail light the property of [QN], such damage having the potential to amount to not more than $2,000.00.
Section 85(3) of the Criminal Law Consolidation Act, 1935
On the 12^th day of December 2001 at Salisbury East in the said State [Huy Binh Huynh] assaulted [QN] Section 39(1) of the Criminal Law Consolidation Act, 1935.”
2 Section 285 of the Criminal Law Consolidation Act 1935 (SA) provides:
“In any plea of autrefois convict or of autrefois acquit, it is sufficient for the accused to allege that he has been lawfully convicted or acquitted, as the case may be, of the offence charged in the information, without specifying the time or place of the previous conviction or acquittal”
3 [1964] AC 1254 at 1364
4(1998) 194 CLR 610 at [9-10] see also The Queen v Carroll [2002] HCA 55
5 (1957) 355 US 184 at 187-188
6      R v Beedie [1998] QB 356 at 366-367
7     Pearce v The Queen (1998) 194 CLR 610 at [102] [108]
8 (2001-2002) 81 SASR 359 at [46]
9Ventura v Sustek (1976) 14 SASR 395 at 399; Orchard v Orchard (1972) 3 SASR 89; Ladd v Marshall [1954] 1 WLR 1489; R v Dorning (1981) 27 SASR 481; R v McIntee (1985) 38 SASR 432; R v O’Neill (2001-2002) 81 SASR 359
10 Section 15 of the Criminal Law Consolidation Act 1935 (SA) provides:
“ It is a defence to a charge of an offence if –
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and
(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(2) It is a partial defence to a charge of murder (reducing the offence to manslaughter) if-
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but
(b) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.
(3) For the purposes of this section, a person acts for a defensive purpose if the person acts-
(a) in self defence or in defence of another; or
(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.
(4) However, if a person-
(a) resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or
(b) resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party, the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.
(5) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.”
11The approach of an appellate court when reviewing sentences has been the subject of recent comment by the High Court in Dinsdale v R [1]. Gleeson CJ and Hayne J said at [3-4]:
‘The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R:
‘It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’
Those principles [referring to House v R] apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.”
Gaudron and Gummow JJ were of a similar opinion. Their Honours said at [22]:
“In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been      ‘upon the facts ... unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.’”

“On the 12^th day of December 2001 at Salisbury East in the said State, intending to damage the property of another or being recklessly indifferent as to whether such property was damaged, without lawful authority to damage such property and knowing that no such lawful authority existed [Huy Binh Huynh] damaged a car window and tail light the property of [QN], such damage having the potential to amount to not more than $2,000.00.
Section 85(3) of the Criminal Law Consolidation Act, 1935

On the 12^th day of December 2001 at Salisbury East in the said State [Huy Binh Huynh] assaulted [QN] Section 39(1) of the Criminal Law Consolidation Act, 1935.”

“In any plea of autrefois convict or of autrefois acquit, it is sufficient for the accused to allege that he has been lawfully convicted or acquitted, as the case may be, of the offence charged in the information, without specifying the time or place of the previous conviction or acquittal”

“ It is a defence to a charge of an offence if –
(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; and

(b) the conduct was, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.

(2) It is a partial defence to a charge of murder (reducing the offence to manslaughter) if-

(a) the defendant genuinely believed the conduct to which the charge relates to be necessary and reasonable for a defensive purpose; but

(b) the conduct was not, in the circumstances as the defendant genuinely believed them to be, reasonably proportionate to the threat that the defendant genuinely believed to exist.

(3) For the purposes of this section, a person acts for a defensive purpose if the person acts-

(a) in self defence or in defence of another; or

(b) to prevent or terminate the unlawful imprisonment of himself, herself or another.

(4) However, if a person-

(a) resists another who is purporting to exercise a power of arrest or some other power of law enforcement; or

(b) resists another who is acting in response to an unlawful act against person or property committed by the person or to which the person is a party,

the person will not be taken to be acting for a defensive purpose unless the person genuinely believes, on reasonable grounds, that the other person is acting unlawfully.

(5) If a defendant raises a defence under this section, the defence is taken to have been established unless the prosecution disproves the defence beyond reasonable doubt.”

‘The task of the Court of Criminal Appeal was to determine whether there was error made in sentencing the accused, error being understood, in this context, as it was explained in House v R:
‘It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’
Those principles [referring to House v R] apply both to Crown appeals based upon alleged inadequacy and appeals by offenders based upon alleged excessiveness.”
Gaudron and Gummow JJ were of a similar opinion. Their Honours said at [22]:
“In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been ‘upon the facts ... unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.’”

[2003] SASC 13

5 February 2003