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Nguyen v R

Nguyen v R

Case [2007] NSWCCA 363 21 December 2007

Criminal Liability

Joint Enterprise

Identification Evidence

Sentencing

Cumulative Sentences

Criminal Law

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Reported Decision: 180 A Crim R 267

New South Wales

Court of Criminal Appeal

CITATION: Duong Hai Nguyen v R, ATCN v R, Khanh Hoang Nguyen v R, Minh Thy Huynh v R. [2007] NSWCCA 363

HEARING DATE(S): 14 September 2007

JUDGMENT DATE:
21 December 2007

JUDGMENT OF: Mason P at 1; Adams J at 2; Smart AJ at 3

DECISION: See para 150

CATCHWORDS: Charges of murder and maliciously inflict grievous bodily harm with intent. Correct directions as to extended joint enterprise for murder and manslaughter. Directions given deficient. Challenges to admission of identification evidence rejected. Identification evidence strong. No unfair prejudice in its admission. Duong Hai Nguyen as the shooter and principal offender correctly convicted of murder. Overlooking of jury note and not answering request for further directions or telling parties of note. New trials ordered for alleged other offenders. Sentence. Offence of murder of Duong Hai Nguyen classified as mid-range and not substantially above mid-range. Sentence reduced accordingly. Sentences for murder and maliciously inflict grievous bodily harm with intent partially cumulative. No special circumstances other than accumulation. Parole period one-third of total non-parole periods.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999
Evidence Act 1995

CASES CITED: Carusi (1997) 92 A Crim R 52 55
Clayton v The Queen [2006]HCA 58
Hui Chi-Ming v The Queen [1992] 1 AC 34
McAuliffe v The Queen (1995) 183 CLR 108
R v Sharah 1992 30 NSWLR 292
Reg v Hyde [1991] 1 QB 134
Smith v The Queen 206 CLR 650

PARTIES: Duong Hai Nguyen v R, ATCN v R, Khanh Hoang Nguyen v R, Minh Thy Huynh v R

FILE NUMBER(S): CCA 20007/1145, 2007/1139, 2007/1132, 2007/787

COUNSEL:
C Nash & D Kang for:
Duong Hai Nguyen, ATCN, Khanh Hoang Nguyen A Cook for:
Minh Thy Huynh
P Ingram for:
Crown

SOLICITORS:
Legal Aid Commission for:
Duong Hai Nguyen, ATCN, Khanh Hoang Nguyen
M Klees for:
Minh Thy Huynh
S Kavanagh for:
Crown

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2005/205; 2005/424; 2005/191; 2005/189

LOWER COURT JUDICIAL OFFICER: Hulme J

LOWER COURT DATE OF DECISION: 11/08/06

MASON P

ADAMS J

SMART AJ

Friday, 21 December 2007

2007/1145: Duong Hai NGUYEN (Duong) v Regina

2007/1139

ATCN v Regina

2007/1132

Khanh Hoang NGUYEN (Khanh) v Regina

2007/787

Minh Thy HUYNH (Minh) v Regina

JUDGMENT

1 MASON P: I have had the benefit of reading the draft of the decision of Smart AJ.

2 I agree with it and the orders proposed, save with respect to the sentencing matter involving the appellant Duong.

3 In my view, it was open to the primary judge to conclude, for the reasons he gave, that Duong's offence was above the middle range of objective seriousness. This conclusion entailed an evaluative judgment, as did the length of the stern sentence that derived from it. I am not persuaded of any appealable error in the primary conclusion or the sentence itself.

4 ADAMS J: I agree with Smart AJ.

5 SMART AJ: Each of…

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 [2007] NSWCCA 363
Case: [2007] NSWCCA 363
Decision Date: 21 December 2007

CaseChat Overview and Summary

In the case of Nguyen v R, the appellant, Duong Hai Nguyen, was convicted of murder and maliciously inflicting grievous bodily harm with intent in relation to events that occurred in Melbourne. The convictions were challenged on various grounds, including the adequacy of jury directions, the admission of identification evidence, and the sentence imposed. The appeal focused on whether the convictions should be upheld, and if not, whether a new trial should be ordered for the appellant and co-accused. The High Court of Australia considered these issues in the context of the legal principles governing joint criminal enterprises, the admissibility of identification evidence, and sentencing.

The primary legal issues addressed by the court were whether the jury directions on the concept of extended joint enterprise were sufficient, whether the identification evidence was admissible and prejudicial, and whether the sentences imposed were appropriate. The court examined the directions given to the jury regarding the extended joint enterprise, which is a complex legal concept where multiple individuals can be held criminally liable for a crime they did not directly commit if they were part of a joint criminal enterprise and had the requisite intent. The court also considered the strength and admissibility of the identification evidence presented, as well as its potential prejudicial effect. Finally, the court reviewed the sentences imposed on the appellant and whether they were proportionate to the crimes committed.

The court found that the jury directions were deficient, as they did not fully encompass the legal principles necessary for the jury to properly understand the concept of extended joint enterprise. Despite this error, the court concluded that the identification evidence was strong and not unfairly prejudicial, and that Duong Hai Nguyen was correctly convicted as the shooter and principal offender. However, the court determined that the overlooking of a jury note and the failure to address a request for further directions constituted a significant error that affected the fairness of the trial. As a result, the court ordered new trials for the alleged other offenders. Regarding the sentence, the court found that the murder offence was appropriately classified as mid-range, and the sentences for the murder and grievous bodily harm charges were partially cumulative. The parole period was set at one-third of the total non-parole periods. The sentences were reduced accordingly, with no special circumstances other than the accumulation taken into account.

Orders