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Nguyen v R

Nguyen v R

Case [2012] ACTCA 24 22 May 2012

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Criminal Law

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PHUONG VIET NGUYEN v THE QUEEN
[2012] ACTCA 24 (22 May 2012)

CRIMINAL LAW – practice and procedure – trial by judge alone – whether the verdict of the trial judge was unsafe and unsatisfactory – whether the trial judge erred in finding that there was no evidence before him that could be seen to form the basis of a rational inference that the person who committed the offence was someone other than the appellant – whether the trial judge failed to include in his judgment the principles of law applied by him and the findings of fact on which he relied – appeal dismissed

Crimes Act 1900 (ACT), s 27
Supreme Court Act 1933 (ACT), s 68
Criminal Procedure Act 1986 (NSW), ss 32, 33

R v Mulcahy [2010] ACTSC 98
R v DM [2010] ACTSC 137
R v Prasad (1979) 23 SASR 161
R v Marshall (1987) 49 SASR 133
Fox v Percy (2003) 214 CLR 118
Fleming v The Queen (1998) 197 CLR 250
AK v Western Australia (2008) 232 CLR 438

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 15-2011
No. SC 118 of 2010

Judges: Higgins CJ, Refshauge and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 22 May 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 15-2011
  )          No. SC 118 of 2010
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PHUONG VIET NGUYEN
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Higgins CJ, Refshauge and Lander JJ
Date:  22 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 15-2011
  )          No. SC 118 of 2010
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PHUONG VIET NGUYEN
Appellant

AND:THE QUEEN
Respondent

Judges:  Higgins CJ, Refshauge and Lander JJ
Date:  22 May 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

This is an appeal against conviction.

This appeal first came on for hearing before this Court on 3 November 2011 when it was adjourned so that the appellant could add a further ground of appeal.

Subsequently, on 10 November 2011, an amended notice of appeal was filed.

For the reasons which follow the appeal should be dismissed.

The Facts

The appellant was charged with three offences: first, that on 19 October 2009, he discharged a loaded firearm at Thanh Tran; secondly, that on the same day he attempted to murder Mr Tran; thirdly, and in the alternative to the second count, that he discharged a loaded firearm at Mr Tran.

The appellant elected to be tried by judge alone. On 23 February 2011, the trial judge entered a verdict of guilty in respect of the first and third counts, and a verdict of not guilty…

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 R

Details

AGLC: Nguyen v R [2012] ACTCA 24
Case: [2012] ACTCA 24
Decision Date: May 22, 2012

CaseChat Overview and Summary

The appellant, Nguyen, appealed to the Court of Criminal Appeal of New South Wales against his conviction for an offence following a trial by judge alone. The central dispute concerned the safety and satisfactoriness of the trial judge's verdict, with the appellant arguing that the verdict was unsafe and unsatisfactory.

The Court of Criminal Appeal was required to determine whether the trial judge erred in finding that there was no evidence before him that could form the basis of a rational inference that someone other than the appellant committed the offence. Additionally, the Court had to consider whether the trial judge failed to adequately articulate the legal principles applied and the factual findings upon which his judgment was based.

In dismissing the appeal, the Court of Criminal Appeal reasoned that the trial judge had properly considered all the evidence presented. The Court found that the trial judge's conclusion that no rational inference could be drawn that a person other than the appellant committed the offence was soundly based on the evidence. Furthermore, the Court was satisfied that the trial judge's judgment, while perhaps not explicitly detailing every legal principle and factual finding in exhaustive detail, sufficiently demonstrated the reasoning process and the factual underpinnings of his verdict, such that it was not unsafe or unsatisfactory.

The appeal was dismissed.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Nguyen v R [2012] ACTCA 24

Most Recent Citation

R v RC [2013] ACTSC 139

Cases citing this decision · 13 of 13 shown

Saunders Civilbuild Pty Ltd v SafeWork New South Wales
[2023] NSWCCA 261

…198 Nelson v John Lysaght (Australian Ltd) (1975) 132 CLR 201 Nguyen v R (2012) 267 FLR 344; [2012] ACTCA 24 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171; [1993] 3 All ER 853 R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321; [2…
R v Fax
[2020] QChC 30 Para 12

…rations which should be given at a judge alone trial. I note the following from the judgment: [5] [2010] ACTSC 98 at [13]-[24]. Applied in Nguyen v R [2012] ACTCA 24; (2012) 267 FLR 334. ·A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair tria…
R v LP
[2020] QDC 218 Para 9

…erations which should be given at a judge alone trial. I note the following from the judgment: [5][2010] ACTSC 98 at [13]-[24]. Applied in Nguyen v R [2012] ACTCA 24; (2012) 267 FLR 334. ·A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair tria…
R v Ruj
[2020] QDC 198 Para 1

…or I can accept part of what a witness said. [28] See the observations of Nield AJ in R v Mulcahy [2010] ACTSC 98 at [13]-[24] applied in Nguyen v R [2012] ACTCA 24; see also the useful observations from R v Mulcahy set out by Smith DCJA in R v MMH [2020] QDC 70 at [10]. [29] Ibid.…
R v McDonald
[2020] QDC 171 Para 1

…, or I can accept part of what a witness said. [20]See the observations of Nield AJ in R v Mulcahy [2010] ACTSC 98 at [13]-[24] applied in Nguyen v R [2012] ACTCA 24; see also the useful observations from R v Mulcahy set out by Smith DCJA in R v MMH [2020] QDC 70 at [10]. [21]Ibid.…
R v Cunningham
[2020] QDC 118 Para 22

…rations which should be given at a judge alone trial. I note the following from the judgment: [10][2010] ACTSC 98 at [13]-[24]. Applied in Nguyen v R [2012] ACTCA 24; (2012) 267 FLR 334. ·A criminal trial is governed by rules. The fundamental rules are designed to ensure that an accused person receives a fair tria…
R v TCJ
[2020] QDC 120 Para 1

…nd reasonable doubt. But the Crown does not have to prove everything about which evidence has been given beyond reasonable doubt.[10] [10] Nguyen v R [2012] ACTCA 24 at [11]; See also the Benchbook at 23.4 – 23.5…
R v MMH
[2020] QDC 70 Para 1

…erations which should be given at a judge alone trial. I note the following from the judgment: [6][2010] ACTSC 98 at [13]-[24]. Applied in Nguyen v R [2012] ACTCA 24; (2012) 267 FLR 334.…
Kalis v New
[2017] ACTSC 334 Para 1

…is Honour to have rejected Ms New’s evidence or found her unreliable. He could, of course, reject some part and accept the rest: Nguyen v The Queen [2012] ACTCA 24 at [44]; Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2014] ACTSC 13 at [285].(10).…
NH v Director of Public Prosecutions (SA)
[2016] HCA 33 Para 8

…6], 40 [129] per Hayne J; [2003] HCA 64; R v Nguyen (2010) 242 CLR 491 at 505 [50]; [2010] HCA 38; Nguyen v The Queen (2013) 87 ALJR 853 at 857 [23]; 298 ALR 649 at 653-654; [2013] HCA 32.…
Gall v R; Gall v R
[2015] NSWCCA 69

…451 House v R [1936] HCA 40; 55 CLR 499 McGeown v R [2014] NSWCCA 314 Nguyen v R [2013] HCA 32; 298 ALR 649 Mulato v Regina [2006] NSWCCA 282 R v Cook [2004] NSWCCA 52 R v DF [2005] NSWCCA 259 R v Gulliford [2004] NSWCCA 338; 148 A Crim R 558 R v Hawken (1986) 27 A Crim R 32 R v Henare [2005] NSWCCA 366 R v He…
R v Amir Reza Abdolali Sarbandi (No 2)
[2014] ACTSC 34 Para 1

…v Shevlin [2013] ACTSC 88 at [10]-[20]. The Court of Appeal has required a judge to set them out in the reasons for judgment. See Nguyen v The Queen (2012) 267 FLR 344 at 354; [62]. The directions I take into account are as follows.…
R v RC
[2013] ACTSC 139 Para 1

…The decision of the trial judge was the subject of appeal, Nguyen v The Queen [2012] ACTCA 24 where Mr Nguyen’s appeal was dismissed. The court there rejected the proposition that a witnesses’ evidence was “indivisible” (at [44]).…

View all 13 citing cases →

Cases cited in this decision · 5 of 5 shown

R v DM
[2010] ACTSC 137 Para 1

…d that he adopted the detailed directions set out by Nield AJ in R v Mulcahy [2010] ACTSC 98 (“ R v Mulcahy ”), as Refshauge J had done in R v DM [2010] ACTSC 137 (“ R v DM ”). The relevant passages in R v Mulcahy are, we think, as follows:…
R v Mulcahy
[2010] ACTSC 98 Para 1

…e otherwise given to a jury if the trial had been by jury. Rather, he said that he adopted the detailed directions set out by Nield AJ in R v Mulcahy [2010] ACTSC 98 (“ R v Mulcahy ”), as Refshauge J had done in R v DM [2010] ACTSC 137 (“ R v DM ”). The relevant passages in R v Mulcahy are, we think, as follows:…
AK v Western Australia
[2008] HCA 8 Para 1

…ns for judgment would not have complied with s 68C and would, by the omission, disclose appealable error: Fleming v The Queen; AK v Western Australia (2008) 232 CLR 438.…
Fox v Percy
[2003] HCA 22 Para 1

…The trial judge said that the primary issue in the case was the credibility of Mr Tran. He reminded himself of the High Court’s dicta in Fox v Percy (2003) 214 CLR 118 that cautioned trial judges to limit their reliance on the appearance of witnesses, and to reason their conclusions on the basis of contemporary mater…
Fleming v The Queen
[1998] HCA 68 Para 1

…In Fleming v The Queen (1998) 197 CLR 250 (“ Fleming v The Queen ”), the High Court considered ss 32 and 33 of the Criminal Procedure Act 1986 (NSW) (“the Criminal Procedure Act ”). Section 32 of the Criminal Procedure Act provided for trial by judge alone in criminal proceedings in accordance with an election made under s 3…

Legislation cited in this decision · 3

Criminal Procedure Act 1986 (NSW)
32, 33 3 mentions (from Para 1)
Crimes Act 1900 (ACT)
27 2 mentions (from Para 1)
Supreme Court Act 1933 (ACT)
68 2 mentions (from Para 1)