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Huynh v The Queen

Huynh v The Queen

Case [2020] NSWCCA 202 12 August 2020

Criminal Liability

Jurisdiction

Miscarriage of Justice

Admissibility of Evidence

Criminal Law

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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
Kamali v R [2019] NSWCCA 186
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 Carey (1990) 20 NSWLR 292
R v Filippetti (1978) 13 A Crim R 335
R v WE (No 16) [2020] NSWSC 325

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:
P Coady (Applicant)
S Flood (Respondent)
Solicitors:
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:

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 Huynh v The Queen

Details

AGLC: Huynh v The Queen [2020] NSWCCA 202
Case: [2020] NSWCCA 202
Decision Date: 12 August 2020

CaseChat Overview and Summary

The case of Huynh v The Queen involved the applicant, Huynh, who was convicted of a supply of a prohibited drug offence under section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The dispute centred on whether Huynh was in possession of the drugs for purposes other than supply, as he claimed to have received them from the true owner with the intention of returning them. This argument drew from the precedent set in R v Carey (1990) 20 NSWLR 292, which established that possession of drugs with the intent to return them to the owner could negate the offence of supply. Both the trial judge and the Crown had acknowledged the potential availability of this defence during the trial, yet the applicant's defence counsel failed to present this defence to the jury.

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