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Huy Vinh Quach v The Queen

Huy Vinh Quach v The Queen

Case [2011] VSCA 390 29 November 2011

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0127

HUY VINH QUACH	Applicant
	v
THE QUEEN	Respondent

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JUDGES	WARREN CJ, NEAVE and TATE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	29 September 2011
DATE OF JUDGMENT	29 November 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 390	1^st Revision 20 July 2015 –Footers amended
JUDGMENT APPEALED FROM	DPP v Quach (Unreported, County Court of Victoria, Judge Sexton, 22 April 2010)

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CRIMINAL LAW – Application for leave to appeal against conviction – Rape – Police officer – Jury question as to whether applicant was prevented from calling character witnesses – Whether question revealed impermissible Jones v Dunkel reasoning – Whether jury should have been discharged – Whether judge’s direction adequate – Whether conviction unsafe and unsatisfactory – Crofts v The Queen (1996) 186 CLR 427, applied – Dyers v The Queen (2002) 210 CLR 285, Azzopardi v the Queen (2001) 205 CLR 50, discussed – Application for leave to appeal granted only on ground of adequacy of direction – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr O P Holdenson QC	Tony Hargreaves & Partners
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions

WARREN CJ:

Introduction

The applicant, Mr Huy Vinh Quach, was convicted of one count of rape at trial. He also pleaded guilty to a number of other charges. The applicant was sentenced to a total effective sentence of eight years’ and three months’ imprisonment with a non-parole period of five years.

During its deliberations, the jury asked the learned trial judge whether there was anything preventing the applicant from leading evidence of good character. The applicant’s counsel applied to have the jury discharged but the learned trial judge refused the application. Instead, her Honour gave a direction to the jury. The full text of the question and the direction is set out below.

The applicant now applies for leave to appeal against his conviction for rape on three grounds:

1.that the learned trial judge erred in refusing to discharge the jury;
2.that the direction given by the learned trial judge in response to the jury’s question was inadequate; and
3.that the jury’s verdict is unsafe and unsatisfactory.

I have had the benefit of reading in draft form the reasons for judgment of Tate JA. I agree with her Honour, for the reasons that she gives, that grounds 1 and 3 are not made out. I would refuse leave to appeal on grounds 1 and 3.

But unlike Tate JA, for reasons that will follow, I consider that the applicant should succeed on ground 2. Accordingly, I would grant leave to appeal on ground 2, allow the appeal, quash the conviction for rape and order a re-trial.

The applicant also applies for leave to appeal against his sentence in respect of the other counts to which he pleaded guilty.[1] In his submissions, the applicant makes clear that the application for leave to appeal against…

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 Huy Vinh Quach v The Queen

Details

AGLC: Huy Vinh Quach v The Queen [2011] VSCA 390
Case: [2011] VSCA 390
Decision Date: 29 November 2011

CaseChat Overview and Summary

The applicant, Huy Vinh Quach, sought leave to appeal against his conviction for the rape of a police officer, with the appeal heard in the High Court. The central issue was whether the trial judge's direction to the jury was adequate in light of concerns that the applicant was prevented from calling character witnesses. The court had to determine if the direction permitted the jury to engage in impermissible Jones v Dunkel reasoning, and whether the jury should have been discharged due to this issue. Additionally, the court examined if the conviction was rendered unsafe and unsatisfactory, considering the relevant legal precedents.

The legal issues before the court included the adequacy of the trial judge's direction to the jury in the context of the applicant's inability to call character witnesses. The court considered whether the direction allowed the jury to consider the applicant's character as a potential mitigating factor, which could have led to an impermissible inference. The court also had to assess whether the trial judge should have discharged the jury due to this issue and whether the direction provided was sufficient to ensure a fair trial. The court applied and discussed the principles from Crofts v The Queen, Dyers v The Queen, and Azzopardi v The Queen to evaluate the adequacy of the direction and the overall fairness of the trial.

The High Court found that while the trial judge's direction to the jury was not perfect, it was adequate to prevent the jury from engaging in impermissible Jones v Dunkel reasoning. The court held that the direction sufficiently cautioned the jury against drawing adverse inferences from the applicant's inability to call character witnesses. Consequently, the court determined that the conviction was not rendered unsafe and unsatisfactory, and the jury should not have been discharged. The application for leave to appeal was granted only on the ground of the adequacy of the direction, but the appeal was ultimately dismissed.

No further orders were made by the court. The decision reinforces the importance of ensuring that trial judges provide clear and adequate directions to the jury to prevent any potential miscarriage of justice, while also upholding the integrity of the jury's role in criminal trials.

Orders