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Nguyen v R

Nguyen v R

Case [2013] VSCA 65 26 March 2013

Appeal

Majority Verdicts

Substantial Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0004

TRINH NGUYEN	Appellant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG, WHELAN and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	21 February 2013
DATE OF JUDGMENT	26 March 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 65
JUDGMENT APPEALED FROM	R v Nguyen [2011] VSC 632 (Lasry J)

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CRIMINAL LAW — Appeal against conviction — Appellant found guilty after trial on charge of attempted murder — Juries — Majority verdicts — Disclosure of 11:1 majority by foreman in response to question from trial judge after two days’ deliberations — Trial judge proceeded to give majority verdict direction, in conjunction with further Black direction — Majority verdict taken soon afterwards — Whether fact that judge aware of existence of an 11:1 majority meant that no majority verdict should thereafter have been taken — Whether substantial miscarriage of justice occurred — No objection taken at trial to course adopted by trial judge — No request for further Black direction — No denial of procedural fairness as numbers disclosed in open court — Undesirability of enquiring as to precisely how jury divided — Appeal dismissed — M J R v The Queen [2011] VSCA 374; L L W v The Queen [2012] VSCA 54, distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J D Williams and Ms M Casey	Victoria Legal Aid
For the Respondent	Mr T Gyorffy SC	Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I have had the advantage of reading in draft the reasons for judgment prepared by Priest JA. His Honour has concluded that this appeal should be allowed, and a new trial ordered. I respectfully disagree.

There is but one ground of appeal now before this Court. It is in the following terms:

A miscarriage of justice resulted from the learned trial judge improperly inquiring as to how the jury was divided.

Priest JA has set out the background facts, and the relevant passages in the transcript and charge that are said to give rise to this ground of appeal.

As will be seen from his Honour’s judgment, the appellant was convicted of the attempted murder of her boyfriend, Bao Van Vo. There was no dispute that, after having had sex, she had stabbed him three times. The first stab wound was inflicted while he was in the bathroom washing his hands. Mr Vo’s evidence was that he put his arm up to stop the blow, and suffered cuts to his arm. The appellant then stabbed him twice in the left side while he was in the shower washing blood from his body after the first attack. The medical evidence was that Mr Vo suffered lacerations to his arm and body, and direct wounds to his liver.

The appellant pleaded guilty, in the presence of the jury, to a charge of intentionally causing serious injury. However, the Crown persisted with a charge of attempted murder. The only issue in the trial therefore was…

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: Trinh Nguyen v The Queen [2013] VSCA 65
Case: [2013] VSCA 65
Decision Date: 26 March 2013

CaseChat Overview and Summary

The appellant, Nguyen, was found guilty of attempted murder following a trial in the Supreme Court of Victoria. The central issue on appeal was whether the trial judge erred in accepting a majority verdict from the jury after being informed of an 11:1 majority during deliberations. The appellant argued that the trial judge should not have proceeded with the majority verdict direction given the prior knowledge of the majority.

The court examined the legal principles surrounding majority verdicts in jury trials. It noted that while a trial judge should not proceed with a majority verdict if they are aware of the majority before it is formally declared by the jury, this alone does not necessarily constitute a substantial miscarriage of justice. The court also considered the procedural fairness aspect, noting that there was no objection to the disclosure of the jury’s division in open court, and no request was made for a further Black direction, which is a direction given to a jury when they report they are unable to agree on a verdict.

In dismissing the appeal, the court held that the trial judge’s actions did not amount to a substantial miscarriage of justice. The court distinguished this case from previous decisions such as M J R v The Queen and L L W v The Queen, where the judges had found errors in the handling of majority verdicts. Here, the court concluded that the appellant had not demonstrated a miscarriage of justice given the procedural fairness and the absence of prejudice resulting from the trial judge's actions.

Orders