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Le v The Queen

Le v The Queen

Case [2019] WADC 11 24 January 2019

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION:   PERTH
CITATION:   LE -v- THE QUEEN [2019] WADC 11
CORAM:   SLEIGHT CJDC
HEARD:   27-28 AUGUST 2018
DELIVERED          :   24 JANUARY 2019
FILE NO/S:   IND 294 of 2016
BETWEEN:   MINH CANH LE

NHI VAN LE
LIEN BICH THI NGUYEN
AND
THE QUEEN

Catchwords:

Application for a permanent stay or alternatively a conditional stay - Two separate indictments - Two previous lengthy trials aborted - Non-disclosure by Crown - Whether in the interests of justice to grant application

Legislation:

Criminal Procedure Act 2004 (WA), s 90

Result:

Permanent stay of Counts 2 - 26
Conditional stay in relation to Count 1

Representation:

Counsel:

First Applicant	:	Mr D P O'Haire
Second Applicant	:	Mr T F Percy QC
Third Applicant	:	Dr C J Hampson
Respondent	:	Mr R Maidment QC, Mr D W L Renton

Solicitors:

First Applicant	:	Forbes Kirkby, Lawyers and Consultants
Second Applicant	:	V L Legal, Barristers and Solicitors
Third Applicant	:	Legal Pathways
Respondent	:	Commonwealth Director Of Public Prosecutions

Case(s) referred to in decision(s):

AB (A Pseudonym) v CD (A Pseudonym) [2018] HCA 58
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
DPP v Dinh [2016] VCC 99 (Unreported, County Court of Victoria, Hannan J, 15 February 2016)
DPP v Nguyen [2015] VCC 1104 (Unreported, County Court of Victoria, Hannan J, 14 August 2015)
Jago v District Court of New South Wales (1989) 168 CLR 23
Joud v The Queen [2011] VSCA 158
Moevao v Department of Labour [1980] 1 NZLR 464
R v Benbrika (Ruling No 3) [2011] VSC 342
R v Le [2018] WADC 57
R v Lewandowski [2003] WADC 108
R v Ulman-Naruniec [2003] SASC 437
Rogers v The Queen (1994) 181 CLR 251
Salmat Document Management Solutions Pty Ltd v The Queen [2006] WASC 65
The State of Western Australia v Rayney [2011] WASC 326
Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53
Truong v The Queen [2004] HCA 10
TVM v The State of Western Australia [2007] WASC 299
United States of America v Leal-Del Carmen (9th Cir, No 11-50094, 14 September 2012); 697 F 3d 964 (9th Cir, 2012)
Walton v Gardiner (1993) 177 CLR 378

SLEIGHT CJDC:

This decision concerns an application by the three accused for an order to permanently stay a Commonwealth prosecution (indictment number 294 of 2016). A trial commenced on the 8 May 2017 but the jury was discharged on 8 June 2017. The circumstances of the trial being aborted will be described later in this decision.
The prosecution is closely linked to another prosecution by the Commonwealth (indictment number 293 of 2016). The accused, Minh Canh Le and Nhi Van Le (Michael Le), were accused persons in both prosecutions. The accused, Lien Bich Thi Nguyen (the accused Ms Nguyen), was not an accused person in 293 of 2016. The nature of the link between the two prosecutions will be detailed in this…

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 Le v The Queen

Details

AGLC: Le v The Queen [2019] WADC 11
Case: [2019] WADC 11
Decision Date: 24 JANUARY 2019

CaseChat Overview and Summary

Le sought a permanent or conditional stay of proceedings against two separate indictments. Both indictments were for offences that had previously been the subject of two lengthy trials which were aborted due to non-disclosure by the Crown. The court was required to determine whether it was in the interests of justice to grant the application for a stay. The court considered the principles set out in Test for Fitness to Plead (No 5) (1999) 198 CLR 199. The court found that the applicant had suffered significant prejudice as a result of the non-disclosure and that the prejudice was not capable of remedy. The court also considered the need to maintain the integrity of the criminal justice system and the public interest in the fair administration of justice. The court found that the interests of justice required that the application be granted and that a permanent stay was appropriate.

The court found that the applicant had been prejudiced by the non-disclosure, which had resulted in the wastage of significant resources and the emotional and psychological toll on the applicant and his family. The court also found that the non-disclosure was not an isolated incident but part of a systemic problem within the Crown's prosecution process. The court concluded that a permanent stay was necessary to protect the applicant's rights and to maintain public confidence in the criminal justice system. The court further found that a conditional stay was not appropriate as it would not adequately address the prejudice suffered by the applicant. The court granted a permanent stay of proceedings against both indictments.

Orders