Ngo v The Queen - [2004] HCATrans 185

[2004] HCATrans 185

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S160 of 2003

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

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2004, AT 11.30 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with my learned friend, MR P.J. PEARSALL. (instructed by Levitt Robinson)

MR G.E. SMITH: Your Honours, I appear for the respondent. (instructed by the Solicitor for Public Prosecutions (New South Wales))

MR GAME: If the Court pleases, there are four matters we wish to argue on this application and if granted special leave. I will concentrate shortly on the second, third and fourth, but in view of the time I will say something briefly about the first one, which concerns the video. Could I take your Honours to page 520 of the application book. There were two substantial issues that the trial judge had to be satisfied of before making the order. The first concerned being satisfied that it was not unfair – well, it was unfair to the party opposing the application – and the second, that it was in the interests of the administration of justice that the order be made. Now, the purpose of the order in this case was, in effect, to anonymise, from the point of view of the applicant, the two witnesses, Mr and Mrs L.

HAYNE J: Anonymise to what extent, Mr Game? Their name was used during the proceedings, was it?

MR GAME: Anonymise so they could not be seen by ‑ ‑ ‑

HAYNE J: To that extent, I see.

MR GAME: Yes, sorry. There is a certain irony in the whole thing, which is that the purpose was that they could not see them, but their response to the argument against them was that we knew enough about them to identify sufficient to challenge their credit, but that was a response of the Court of Criminal Appeal. All I am trying to do in the time available is to show that there is a problem in the way in which the Court of Criminal Appeal disposed of this part of the application and to show that the trial judge’s discretion miscarried in respect of it. If you have a look at paragraph 123, you will see that the unfairness issue is resolved against us on the basis that his Honour, as it were, balanced the position of the witnesses with the accused. Now, that is not part of the exercise in the unfairness aspect.

Then at paragraph 126, the administration of justice issue is resolved against us on the basis that the trial judge engaged in a balancing exercise. Were that the case, then the administration of justice issue would resolve against us, but if you go back to page…

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 [2004] HCATrans 185
Case: [2004] HCATrans 185
Decision Date

CaseChat Overview and Summary

The applicant, Mr. Ngo, was convicted of murder in the Supreme Court of New South Wales. He appealed his conviction to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. Mr. Ngo then sought special leave to appeal to the High Court of Australia. The dispute concerned the admissibility of certain evidence during his trial.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of a confession made by Mr. Ngo to police. Specifically, the court had to consider whether the confession was voluntary and whether its prejudicial effect outweighed its probative value, pursuant to section 84 of the *Evidence Act 1995* (NSW). A further issue was whether the trial judge had adequately directed the jury on the use of this confession.

Gleeson CJ and Hayne J, in their joint reasons, found that the evidence established the confession was voluntary. They reasoned that the applicant had been cautioned and understood his rights, and there was no evidence of oppression or inducement. Regarding the prejudicial effect, their Honours concluded that while the confession was powerful, it was directly relevant to the charge of murder and its probative value was high. The jury directions were also found to be sufficient, adequately explaining the circumstances in which the confession could be considered.

Special leave to appeal was refused.

Orders