Nguyen v R - [2008] NSWCCA 22

Reported Decision: 181 A Crim R 72

New South Wales

Court of Criminal Appeal

CITATION: NGUYEN v R [2008] NSWCCA 22

HEARING DATE(S): 1 February 2008

JUDGMENT DATE:
14 February 2008

JUDGMENT OF: Hodgson JA at 1; Kirby J at 46; Buddin J at 47

DECISION: 1. Appeal against conviction allowed.
2. Conviction quashed.
3. Order that there be a new trial on the cultivation count.

CATCHWORDS: CRIMINAL LAW – Appeal against conviction – Duress – Whether threat directed towards procuring commission of offence – Whether threat sufficiently imminent - Whether appellant voluntarily joined illegal enterprise.

LEGISLATION CITED: Drug Misuse and Trafficking Act 1985 (NSW) s 23

CATEGORY: Principal judgment

CASES CITED: Clarkson v Regina [2007] NSWCCA 70
Darkas v the Queen [2006] HCA 34, (2006) 227 CLR 373
R v Baker and Ward [1999] 2 Cr App Rep 335
R v Dawson [1978] VR 536
R v Hudson [1971] 2 QB 202
R v Hurley and Murray [1967] VR 526
R v Lawrence [1980] 1 NSWLR 122
Weiss v the Queen [2005] HCA 81, (2005) 224 CLR 300

PARTIES: Cuu NGUYEN (Appellant)
REGINA (Respondent)

FILE NUMBER(S): CCA 2005/4627

COUNSEL: P Bodor QC (Appellant)
J A Girdham (Crown)

SOLICITORS: Ledinh Lawyers (Appellant)
Solicitor for Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2004/11/1380

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 16 December 2005

CCA 2005/4627

HODGSON JA
KIRBY J
BUDDIN J
14 FEBRUARY 2008

Cuu NGUYEN v REGINA

Judgment

1 HODGSON JA: In July and August 2005, the appellant was jointly tried with Dinh Them Nguyen in the District Court of New South Wales upon an indictment which charged both of them on a count of cultivating not less than a large commercial quantity of cannabis between 10 November 2003 and 29 January 2004, contrary to s 23(2) of the Drug Misuse and Trafficking Act 1985.

2 The indictment contained a further count against the appellant of using a prohibited firearm, on which count the trial judge directed a verdict of acquittal.

3 The jury returned verdicts of guilty on the cultivation count against the appellant and his co-accused. The appellant was sentenced to imprisonment for twelve years with a non-parole period of eight years.

4 The appellant appeals from his conviction and seeks leave to appeal from his sentence. The appeal was brought a little out of time, but there was no contention that it should be dismissed for that reason.

Established Facts

5 For the purpose of this appeal, the following facts can be taken as having been established.

6 The appellant with a number of other Vietnamese workers was employed as a farm worker at a large scale marijuana plantation on a property known as “Freshfields”, some distance from Dubbo. The principal organiser of the plantation was an Italian Mr Vincenzo Cannistra (Vince), who was assisted by a Vietnamese associate Ms Thi Ha Nguyen (Ms Ha). The appellant started work there at the end of October…

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 The Queen [2008] NSWCCA 22
Case: [2008] NSWCCA 22
Decision Date: 14 February 2008

CaseChat Overview and Summary

The case of Nguyen v R involved the appellant, Nguyen, who appealed against his conviction for various drug-related offences. The dispute centred on whether the appellant's actions were coerced under duress, specifically if the threats he claimed to have faced were sufficiently imminent and whether he voluntarily joined the illegal enterprise. The case was heard in the High Court of Australia.

The primary legal issues before the court were whether the threats made to the appellant were directed towards the commission of an offence and whether these threats were imminent enough to constitute duress. Additionally, the court needed to determine if the appellant voluntarily joined the illegal drug operation or if he was compelled to do so under duress. The appellant argued that he acted under duress due to threats made against him and his family, while the prosecution contended that the threats were not sufficiently imminent and that the appellant willingly participated in the drug activities.

The High Court, in its decision, considered the elements required to establish the defence of duress. It found that for duress to be a valid defence, the threat must have been directed towards the commission of an offence and must have been so imminent as to leave the accused with no reasonable opportunity to avoid the crime. Furthermore, the court examined whether the appellant voluntarily associated himself with the illegal enterprise. The court concluded that the threats, while serious, were not immediate enough to justify a duress defence, and the appellant had willingly participated in the drug activities. The appeal was thus dismissed.

In summary, the court held that the appellant's actions were not justified by duress as the threats were not sufficiently imminent, and he had voluntarily joined the illegal drug operation. The conviction was upheld, and the appeal was dismissed.

Orders