Nguyen v R

Case [2007] NSWCCA 363


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…

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Nguyen v R [2007] NSWCCA 363
Case
[2007] NSWCCA 363
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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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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