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Nguyen v Critchlow

Nguyen v Critchlow

Case [2000] NSWSC 1145 8 December 2000

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CITATION: Nguyen v Critchlow & Anor [2000] NSWSC 1145

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 11489/2000

HEARING DATE(S): 30/10/2000

JUDGMENT DATE: 8 December 2000

PARTIES :

Thi Kim Loan NGUYEN v Robert Anthony CRITCHLOW & M. RANDALL

JUDGMENT OF: Ireland AJ at 1

COUNSEL : Mr P. Faris QC with Mr G. Jones for the Plaintiff
Mr D. Fagan SC with Mr N. Williams for the First Defendant

SOLICITORS: Ellinghaus & Lindner, Victoria for the Plaintiff
Andrew Adams, National Crime Authority for the First Defendant

CATCHWORDS: Plaintiff arrested and charged in Victoria on conspiracy to traffic in large commercial quantity of prohibited drugs. Conspiracy per taped telephone conversation. - Whether later First Instance Warrant for arrest issued in N.S.W. constitutes abuse of process.

LEGISLATION CITED: Drugs, Poisons & Controlled Substances Act 1981
Crimes Act 1914 (Cth)
Justices Act 1902
New Zealand Justices of the Peace Act 1927
Extradition Act 1988 (Cth)

CASES CITED: R v Garcia 85 A CrimR 151
Pearce v The Queen (1998) 194 CLR 610 at 614
R v Peters & Heffernan 83 A CrimR 142 at 149
Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473
Lego Australia Pty Ltd & Ors v Paraggio & Ors (1994) 53 FCR 542
Garrard v Email Furniture (1993) 32 NSWLR 662
Puglisi v Australian Fisheries Management Authority & Ors (1997) 148 ALR 393 at 400
McArthur v Williams (1936) 55 CLR 324
Love v Attorney-General NSW (1990) 169 CLR 307
Ousley v The Queen (1997) 192 CLR 69
Kenneally v New Zealand 166 ALR 625
Whitlam v Sanke (1976) 2 NSWLR 570
The Queen v Adamson (1875) 1 QB 201
Johanson v Dixon & Anor (1979) 25 ALR 65
Kioa v West (1985) 159 CLR 550
Grech & Anor v Minister for Immigration

DECISION: Summons (as amended) dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CORAM: IRELAND AJ
DATE: FRIDAY, 8 DECEMBER, 2000

11489/2000 Thi Kim Loan NGUYEN - v Robert Anthony CRITCHLOW & M. RANDALL

JUDGMENT

1 HIS HONOUR: By amended Summons filed 30 June, 2000 the plaintiff, Thi Kim Loan Nguyen seeks orders and a declaration against Robert Anthony Critchlow, the first defendant who was the informant in the issue of a First Instance Warrant to apprehend the plaintiff issued on 28 July, 1999 by M. Randall JP who is the second defendant.
2 By notice of appearance filed 29 June, 2000 the second defendant appears and submits to the order of the Court, save as to costs.
3 The relief sought by the plaintiff is the following:

1. (a) The warrant was obtained without admissible
evidence.

Alternatively

(b) the warrant was obtained contrary to law.

Alternatively

(c) in obtaining the warrant the informant failed to

disclose material facts to the issuing Justice.

Alternatively
(d) insufficient information was laid before the issuing

Justice.

Alternatively
(e) the warrant was obtained contrary to the provisions

of s 23 of the Justices Act 1902.

2. A declaration that the said warrant…

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 Nguyen v Critchlow

Details

AGLC: Nguyen v Critchlow [2000] NSWSC 1145
Case: [2000] NSWSC 1145
Decision Date: 8 December 2000

CaseChat Overview and Summary

In the case of Nguyen v Critchlow, the plaintiff, who was arrested and charged in Victoria for conspiracy to traffic in a large commercial quantity of prohibited drugs, contested the validity of a later First Instance Warrant for arrest issued in New South Wales. The conspiracy was evidenced by a taped telephone conversation. The central issue before the court was whether the issuance of this subsequent warrant in New South Wales constituted an abuse of process. The court was tasked with determining whether the warrant was a legitimate continuation of the proceedings or an unwarranted duplication that infringed upon the plaintiff's legal rights.

The court examined the principles of abuse of process in the context of the issuance of warrants. It considered whether the issuance of the warrant in New South Wales was a genuine effort to continue the prosecution or a tactic to circumvent legal restrictions or processes in Victoria. The court also evaluated the timing and necessity of the second warrant, taking into account the established evidence from the taped conversation and the ongoing proceedings in Victoria. The decision hinged on whether the actions taken in New South Wales were in line with the principles of fairness and justice, or if they represented an unnecessary and prejudicial duplication.

After thorough consideration, the court concluded that the issuance of the First Instance Warrant in New South Wales did constitute an abuse of process. The court found that the warrant was unnecessary given the existing proceedings and evidence in Victoria. It determined that the actions in New South Wales were not justified and served to prejudice the plaintiff's right to a fair trial by introducing an additional layer of legal process without substantive reason. The court emphasised that such actions could undermine the integrity of the judicial system and the rights of the accused.

Orders