Luu v Cook

[2008] ACTSC 54

TIEU MINH LUU v BENJAMIN JOHN COOK [2008] ACTSC 54 (17 June 2008)

CRIMINAL LAW – appeal from decision of the Magistrates Court of the ACT – principles for determining appeals – error of law by Magistrate – Magistrates Court Act 1930 (ACT).

CRIMINAL LAW – offences – conviction for an offence of making a threat to kill – elements of offence – whether evidence sufficient to prove all elements – s30 Crimes Act 1900 (ACT).
CRIMINAL LAW – consideration of alternative charges.

Crimes Act 1900 (ACT), ss 30, 31
Magistrates Court Act 1930 (ACT), s 218

R v Leece (1995) 125 ACTR 1
R v Barbaro [1999] ACTSC 119, Higgins J

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 65 of 2007

Judge:             Penfold J
Supreme Court of the ACT

Date:              17 June 2008

IN THE SUPREME COURT OF THE     )
  )          No. SCA 65 of 2007
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:TIEU MINH LUU

Appellant

AND:BENJAMIN JOHN COOK

Respondent

ORDER

Judge:  Penfold J
Date:  17 June 2008
Place:  Canberra

THE COURT ORDERS THAT:

(a)        the appeal is allowed;

(b)       the appellant’s conviction for making a threat to kill the complainant on 29 January 2007 (CC2007/1325), and the sentence imposed, are set aside.

THE COURT FINDS THAT:

(a)       the charge (CC2007/6892) that the appellant did on 29 January 2007 assault Jenny Nguyen is proven. 

Introduction

1. This is an appeal from a conviction and sentence in the Magistrates Court in respect of an offence of making a threat to kill under s 30 of the Crimes Act 1900 of the ACT, intending that the victim would fear that the threat would be carried out.  At the same hearing, the appellant was also convicted and fined in relation to a charge of common assault arising separately (Charge CC2004/5038), but this is not subject to appeal. 

Background

1. The incident from which the threat to kill charge arose took place on Monday 29 January 2007.  Following an earlier dispute on Saturday 27 January, the appellant and his then partner, Ms Nguyen, were arguing.  Ms Nguyen alleged that Mr Luu said to her “Don’t dare me” and “I will do it”, later threatening her with a knife.  The learned Magistrate found that these words were capable of constituting a threat to kill.

1. On 16 July 2007, the learned Magistrate found the charge proven and sentenced the appellant to imprisonment for 3 months, the sentence to be wholly suspended subject to an 18-month good behaviour order.  The appellant appealed against “all of the order”.

Grounds for appeal

1. The grounds of appeal were identified as follows:

(a)        The sentencing Magistrate erred in finding the offence proved on the basis of the evidence of the complainant.  The evidence of the complainant could not support a finding that a threat to kill was made against her.

(b)        The sentencing Magistrate’s decision was against the weight of the evidence and his Honour should have been left with a reasonable doubt.

(c)…