Lai v The Queen; Nguyen v The Queen

The respondents, Lai and Nguyen, appealed against their convictions and sentences in the Court of Appeal. The nature of the dispute involved the admission of hearsay evidence of a co-accused under an exception to the hearsay rule, specifically section 65(2)(d) of the Evidence Act. The decision of the trial judge occurred prior to the High Court's ruling in Sio v The Queen. The Crown conceded that a miscarriage of justice had occurred. The court was required to determine whether to apply the proviso, which would allow the court to consider whether to order a new trial or enter verdicts of acquittal.

The court examined the legal principles established in Sio v The Queen and determined that the proviso applied. The primary judge's decision was made before the High Court's ruling and did not take into account the legal principles articulated in Sio. The court found that the trial judge would likely have reached the same conclusion if they had been aware of the principles in Sio, but the court could not be sure. Consequently, the court exercised its discretion to order a new trial for both respondents. The court considered it unjust to order a verdict of acquittal without a new trial, as it would deprive the Crown of the opportunity to present its case afresh.