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Ngo v The King

Ngo v The King

Case [2023] NSWCCA 201 22 August 2023

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ngo v R [2023] NSWCCA 201
Hearing dates: 19 May 2023
Decision date: 22 August 2023
Before: Adamson JA at [1]; Ierace J at [116]; Chen J at [148]
Decision:
(1) Grant leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to raise grounds 2 and 3.
(2) Grant leave to appeal pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).
(3) Dismiss the appeal.

Catchwords:
CRIME — conviction appeal — where applicant acquitted of three sexual offences but convicted of a further three sexual offences — whether verdicts returned by the jury were inconsistent
CRIME — conviction appeal — admission of evidence of “bad character” of applicant — whether trial judge should have made an anti-tendency direction — application to discharge jury made and denied in course of trial — anti-tendency direction not requested by applicant’s trial counsel — whether failure to give direction led to miscarriage of justice

Legislation Cited:
Crimes Act 1900 (NSW), ss 61HE, 61E, 61L, 112
Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Procedure Act 1986 (NSW), ss 161, 294, 294AA
Evidence Act 1995 (NSW), ss 95, 128, 191
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:
AH v R [2019] NSWCCA 152
Booth v R [2022] NSWCCA 113
Browne v Dunn (1893) 6 R 67
Bussey v R [2020] NSWCCA 280
Cullen v R [2022] NSWCCA 63
Ganiji v R [2019] NSWCCA 208
Hamilton v The Queen [2021] HCA 33; (2021) 394 ALR 194
KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
Mahmood v State of Western Australia (2008) 232 CLR 397; [2008] HCA 1
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
R v Meher [2004] NSWCCA 355
R v Murray (1987) 11 NSWLR 12
R vTangye (1997) 92 A Crim R 545
R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
Soames v R [2012] NSWCCA 188
Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42

Category: Principal judgment
Parties: Sang Ngo (Applicant)
Rex (Respondent)
Representation:
Counsel:
G Lewer / A Faro (Applicant)
D Scully (Respondent)
Solicitors:
Veronica Love Lawyer (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2020/114647
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

25 November 2021

Before:

Arnott SC DCJ

File Number(s):

2020/114647

HEADNOTE

[This headnote is not to be read as part of the judgment]

Sang Ngo (the applicant) was charged with three counts of intentionally carrying out a sexual act – namely, masturbation – towards the victim without her consent and knowing that she did not consent contrary to s 61KE(a) of the Crimes Act 1900 (NSW) (counts 1, 2 and 3), two counts of sexual assault contrary to s 61L of the Crimes Act (counts 4 and 5)…

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 Ngo v The King

Details

AGLC: Ngo v The King [2023] NSWCCA 201
Case: [2023] NSWCCA 201
Decision Date: 22 August 2023

CaseChat Overview and Summary

In the case of Ngo v The King, the applicant appealed against his conviction for three sexual offences, while he was acquitted of three other sexual offences. The dispute centred on whether the jury's verdicts were inconsistent and whether the trial judge should have made an anti-tendency direction regarding the admission of evidence about the applicant's "bad character". Additionally, the applicant argued that the failure to give an anti-tendency direction, despite an application to discharge the jury being made and denied, led to a miscarriage of justice.

The primary legal issues the court had to address were the consistency of the jury's verdicts and the admissibility of evidence concerning the applicant's character. The court also had to consider whether the trial judge's failure to give an anti-tendency direction constituted a miscarriage of justice. Specifically, the court needed to determine whether the jury's inconsistent verdicts, the admission of "bad character" evidence without an appropriate direction, and the failure to give an anti-tendency direction had any impact on the fairness and correctness of the trial.

The court concluded that the jury's verdicts were not necessarily inconsistent, as each offence involved different acts and circumstances. Regarding the admission of "bad character" evidence, the court found that while an anti-tendency direction should have been given, the absence of such a direction did not lead to a miscarriage of justice in this case. The court held that the applicant's trial counsel did not request an anti-tendency direction, and the absence of this direction did not undermine the overall fairness of the trial. Consequently, the appeal was dismissed, and the convictions were upheld.

No further orders were made by the court in light of its findings. The convictions for the three sexual offences remained valid, and the appeal was unsuccessful in its entirety.

Orders