Ngo v The Queen - [2014] HCATrans 283

[2014] HCATrans 283

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S208 of 2014

B e t w e e n -
PHUONG CANH NGO
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 DECEMBER 2014, AT 10.57 AM

MR M.B.J. LEE, SC: If your Honour pleases, I appear with my learned friends, MS B.J. TRONSON and MS L.M. JACKSON. (instructed by Legal Aid NSW)

MS N.J. ADAMS, SC: May it please the Court, I appear with MS S. PALANIAPPAN for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ: Yes, Mr Lee.

MR LEE: If the Court pleases, an extension of time for filing the application for special leave is required but I understand it is not opposed.

FRENCH CJ: Is that correct?

MS ADAMS: That is correct, your Honour.

FRENCH CJ: Yes, all right. You will have that leave. Yes.

MR LEE: Your Honours, the applicant advances two alternative contentions to demonstrate that the Court of Criminal Appeal fell into error in finding the applicant had no arguable grounds of appeal, which finding was determinative of the court’s conclusion that no extension of time should be granted pursuant to section 10(1)(b) of the Criminal Appeal Act.

In short those two arguable grounds of appeal which we say exist are as follows. The first is, in applying a provision, to which I will come presently, the sentencing judge, although acting consistently with authority at intermediate Court of Appeal level, applied an erroneous two‑stage process and the alternative argument is that if the two‑stage sentencing process was appropriate, that this was a substantively less favourable sentencing regime to the prisoner and, given the absence of statutory provisions mandating this outcome, the court ought to have proceeded to sentence pursuant to the sentencing regime which is applicable at the time of the offence, which is described, as your Honour may have seen in the summary of argument, as the “stage one regime”.

Can I commence by immediately by taking your Honours to page 11 of the applicant’s authorities which identifies and reproduces section 61 of the Crimes (Sentencing Procedure) Act, a section which has caused some controversy and it has caused controversy for reasons that will become obvious. What your Honours will immediately note is the heading “Mandatory life sentences for certain offences” and a mandatory direction in subsection (1) that the:

court is to impose a sentence of imprisonment for life ‑ ‑ ‑

FRENCH CJ: Now, this came into effect in 2000, was it?

MR LEE: Yes.

FRENCH CJ: Your client was sentenced in 2001, I think.

MR LEE: Yes, 14 November.

FRENCH CJ: The offence had been committed in 1994.

MR LEE: Correct.

FRENCH CJ: Yes.

MR LEE: So seven years later. The court:

is to impose a sentence of imprisonment for life . . .…

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 Queen

Details

AGLC: Ngo v The Queen [2014] HCATrans 283
Case: [2014] HCATrans 283
Decision Date

CaseChat Overview and Summary

The case of *Ngo v The Queen* concerned an appeal to the High Court of Australia following a conviction for trafficking a commercial quantity of methylamphetamine. The appellant, Mr Ngo, was found guilty in the District Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. The High Court then granted special leave to appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury on the defence of duress. Specifically, the court had to consider whether there was sufficient evidence presented at trial to raise an issue of duress, thereby necessitating a direction to the jury on that defence.

The High Court, comprising French CJ and Keane J, analysed the evidence in relation to the elements of duress. Their Honours noted that for duress to be available as a defence, there must be evidence that the accused acted under an immediate threat of death or serious injury, and that a person of reasonable fortitude would have yielded to that threat. In this instance, the court found that the evidence did not establish the necessary immediacy or seriousness of the threat required to raise the defence of duress. Consequently, the trial judge was not obliged to direct the jury on this matter.

The appeal was dismissed.

Orders