Nguyen v R - [2021] NSWCCA 85

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v R [2021] NSWCCA 85
Hearing dates: 5 February 2021
Date of orders: 3 May 2021
Decision date: 03 May 2021
Before: Bathurst CJ at [1]
Beech-Jones J at [2]
Wilson J at [3]
Decision:
(1) Leave to appeal granted
(2) Appeal dismissed

Catchwords:
CRIME - trial - appeal against conviction – charges of sexual and indecent assault – question of unreasonable and unsafe verdict by reason of inconsistency of verdicts – whether guilty verdict for sexual assault inconsistent with acquittal for indecent assault – whether rational explanation for differing verdicts

Legislation Cited:
Crimes Act 1900 (NSW)

Cases Cited:
Mackenzie v R (1996) 190 CLR 348; [1996] HCA 35
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Roos v R [2019] NSWCCA 67

Category: Principal judgment
Parties: Simon Nguyen (Applicant)
Regina (Crown)
Representation:
Counsel:
I Lloyd QC/A Radojev (Applicant)
K Jeffreys (Crown)
Solicitors:
Crimlaw Lawyers (Applicant)
Solicitor of Public Prosecutions (NSW) (Crown)

File Number(s): 2018/188457
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

08 July 2019

Before:

Williams ADCJ

File Number(s):

2018/188457

Judgment

BATHURST CJ: I agree with the orders proposed by Wilson J and with her Honour’s reasons.
BEECH-JONES J: I agree with Wilson J.
WILSON J: On 2 July 2019 the applicant, Simon Nguyen, was arraigned upon indictment before a jury panel in the District Court, pleading not guilty to two offences:

Count 1: an offence contrary to s 61I of the Crimes Act 1900 (NSW) (“the Act”) of sexual intercourse without consent, knowing that the complainant had not consented, relying on an incident of digital intercourse; and

Count 2: an offence contrary to s 61L of the Act of indecent assault of the same complainant, being the manipulation of the complainant’s hand on the applicant’s penis.

On 8 July 2019, a jury of twelve found the applicant guilty of count 1, and not guilty of count 2.
On 22 November 2019, following conviction, Williams ADCJ imposed a community corrections order (“CCO”) upon the applicant with respect to count 1, for a period of three years. The order commenced on 22 November 2019, and will expire on 21 November 2022. A prohibition on associating with the complainant for a period of two years was a condition of the CCO.
By Notice of Application for Leave to Appeal dated 27 July 2020, the applicant seeks leave to appeal against his conviction on the basis that the verdict of guilty on count 1 is “unreasonable and unsafe by reason of inconsistency with the verdict of not guilty on count 2”. Unsurprisingly, there is no application for leave to appeal against the non-custodial sentence imposed.

Factual Background

The applicant and the complainant met as students at university in 2016. They commenced a relationship in April of that year, which continued until November 2016. The applicant gave evidence at trial that…

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 [2021] NSWCCA 85
Case: [2021] NSWCCA 85
Decision Date: 03 May 2021

CaseChat Overview and Summary

The case before the court was an appeal by the respondent against their conviction for charges of sexual and indecent assault. The appellant, Nguyen, had been found guilty of sexually assaulting the complainant but was acquitted of the indecent assault charge. The appeal was centred on whether the guilty verdict for sexual assault was inconsistent with the acquittal for indecent assault, leading to an unreasonable and unsafe verdict. The court was required to determine if there was a rational explanation for the differing verdicts.

The primary legal issue was whether the guilty verdict for sexual assault was inconsistent with the acquittal for indecent assault, given the similar factual matrix of the two charges. The court considered whether the jury's verdicts were rational and consistent with each other, particularly in light of the jury’s finding that the sexual assault occurred but not the indecent assault. The court also had to evaluate the reasoning behind the jury's decision to convict on one count but acquit on another, despite the overlapping nature of the evidence.

The court examined the jury's reasoning and found that there was a rational basis for the differing verdicts. It was determined that the jury could have reasonably found the appellant guilty of sexual assault based on the evidence presented, while simultaneously concluding that the evidence did not prove beyond reasonable doubt that the appellant committed the act of indecent assault. The court concluded that the verdicts were not inconsistent and, therefore, the conviction for sexual assault was safe and reasonable. The appeal was dismissed, and the conviction stood.

No additional orders were made by the court beyond the dismissal of the appeal and the affirmation of the conviction for sexual assault. The court upheld the jury's findings and did not require any further action to be taken.

Orders