Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Huynh v R [2020] NSWCCA 202 Hearing dates: 10 June 2020 Date of orders: 12 August 2020 Decision date: 12 August 2020 Before: Macfarlan JA at [1];
N Adams J at [93];
Lonergan J at [94]Decision: (1) Grant the applicant such extension of time for him to apply for leave to appeal as he requires.
(2) Grant the applicant leave to appeal.
(3) Quash the applicant’s conviction of the supply of prohibited drug offence with which he was charged.
(4) Direct a new trial on that charge and fix 21 August 2020 at 9:30am as an arraignment listing date before the District Court.
(5) Quash the aggregate sentence imposed on the applicant in the District Court on 10 June 2016.
(6) Remit the proceedings to the District Court for the applicant to be re-sentenced on the three possession charges under s 10 of the Drug Misuse and Trafficking Act 1985 (NSW) to which he pleaded guilty.
Catchwords: CRIMINAL LAW – application for leave to appeal against conviction – applicant convicted of supply of prohibited drug offence – s 25(1) Drug Misuse and Trafficking Act 1985 (NSW) – argument available on the evidence that he possessed drugs “otherwise than for purpose of supply” because he received them from the true owner and intended to return them to him – R v Carey (1990) 20 NSWLR 292 – trial judge and Crown informed jury of potential availability of Carey defence – whether trial miscarried because defence counsel failed to put Carey defence to jury
CRIMINAL LAW – trial judge’s summing up – trial judge made comments disparaging applicant’s case – whether summing up was unbalanced and unfair in a way that constituted a miscarriage of justice – appeal allowed and new trial ordered
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Alkhair v The Queen [2016] NSWCCA 4; (2016) 255 A Crim R 419
Director of Public Prosecutions v Brooks [1974] AC 862
He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43
McKell v The Queen (2018) 264 CLR 307; [2019] HCA 5
Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301
R v Ali (1981) 6 A Crim R 161
R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462
R v Filippetti (1978) 13 A Crim R 335
Texts Cited: Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (at 3 August 2020)
Category: Principal judgment Parties: Huy Bao Van Huynh (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
P Coady (Applicant)
S Flood (Respondent)
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2013/309607 Publication restriction: Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Date of Decision:
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- AGLC
- Huynh v The Queen [2020] NSWCCA 202
- Case
- [2020] NSWCCA 202
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the trial miscarried due to the failure of the defence counsel to put forward the Carey defence to the jury, and whether the trial judge's summing up, which included disparaging comments about the applicant's case, was so unbalanced and unfair as to constitute a miscarriage of justice. The court had to determine if these procedural errors warranted an appeal and if they had indeed prejudiced the fairness of the trial.
The court found that the failure of the defence counsel to argue the Carey defence constituted a significant procedural error. This omission led to the jury not being adequately informed of a potentially exculpatory defence, which was crucial in the context of the case. Furthermore, the court held that the trial judge's comments during the summing up were not only inappropriate but also contributed to an unfair trial environment. Consequently, the court concluded that these errors amounted to a miscarriage of justice and allowed the appeal. A new trial was ordered to ensure that the applicant could be fairly judged with all available defences properly presented and considered.
The final orders of the court included the allowance of the applicant's appeal, the quashing of his conviction, and the ordering of a new trial. This decision underscores the importance of ensuring that all viable defences are presented to the jury and that judicial comments during a trial are fair and impartial.
Orders
Orders of the court
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Background
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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