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Nguyen v R

Nguyen v R

Case [2017] NSWCCA 145 23 June 2017

Criminal Liability

Appeal

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nguyen v R [2017] NSWCCA 145
Hearing dates: 5 May 2017
Decision date: 23 June 2017
Before: Macfarlan JA at [1];
Adamson J at [51];
Campbell J at [55]
Decision:
Application for leave to appeal dismissed.

Catchwords: CRIMINAL LAW – application for leave to appeal against conviction – applicant acquitted of sexual intercourse without consent in circumstances of aggravation contrary to s 61J(1) Crimes Act 1900 (NSW) but convicted of the statutory alternative of attempt to commit that offence contrary to s 61P – some evidence of complainant referred to an attempt only while other parts of her evidence referred to penetration – whether verdicts inconsistent – whether verdicts the result of an impermissible compromise – verdicts able to be reconciled on a logical and reasonable basis
Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 61P
Criminal Appeal Act 1912 (NSW), s 6
Cases Cited: Jones v The Queen (1997) 191 CLR 439; [1997] HCA 12
Holloway v R [2017] NSWCCA 17
Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35
R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
MG v R [2017] NSWCCA 14
R v TK (2009) 74 NSWLR 299; [2009] NSWCCA 151
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Stinson v R [2006] NSWCCA 191
Category: Principal judgment
Parties: Van Chien Nguyen (Applicant)
Regina (Respondent)
Representation:
Counsel:
L Fernandez (Applicant)
N J Adams (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/390102
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

19 February 2016

Before:

Yehia DCJ

File Number(s):

2013/390102

Judgment

MACFARLAN JA: In 2015 the applicant, Mr Van Chien Nguyen, was tried in the District Court before a judge and jury on an indictment alleging that he had committed a number of offences on 29 December 2013 in relation to his then partner.
At the commencement of the trial, the Indictment contained the following counts:

Intentionally damaging property, namely a mobile phone the property of the complainant.

Attempting to have sexual intercourse with the complainant without her consent, knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, that at the time of the offence the applicant recklessly inflicted actual bodily harm on the complainant.

In the alternative to (2), assaulting the complainant and at the time of the assault committing an act of indecency on her.

Assaulting the complainant.

Assaulting the complainant thereby occasioning actual bodily harm.

The complainant’s evidence at trial was to the effect that the applicant became angry when he returned home on 29 December 2013 to find the complainant speaking on her mobile phone. The applicant took the phone from the complainant and threw it on the ground, damaging it (Count 1). The…

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 [2017] NSWCCA 145
Case: [2017] NSWCCA 145
Decision Date: 23 June 2017

CaseChat Overview and Summary

The case of Nguyen v R involved the applicant, Nguyen, who was acquitted of the offence of sexual intercourse without consent in circumstances of aggravation but was convicted of the statutory alternative of attempt to commit that offence. The trial was heard in the Supreme Court of New South Wales. The applicant sought leave to appeal against his conviction, arguing that the verdicts were inconsistent and the result of an impermissible compromise.

The legal issues before the court were whether the verdicts could be reconciled on a logical and reasonable basis and whether the jury had reached the verdicts by way of an impermissible compromise. The applicant submitted that the verdicts were inconsistent as some parts of the complainant's evidence referred to an attempt only, while other parts referred to penetration. The applicant argued that the verdicts could not be reconciled and were the result of an impermissible compromise.

The court held that the verdicts were able to be reconciled on a logical and reasonable basis. The court found that the jury could have been satisfied that the applicant had attempted to commit the offence of sexual intercourse without consent in circumstances of aggravation but was not satisfied that the complainant had consented to intercourse. The court held that the verdicts were not the result of an impermissible compromise as the jury was not required to choose between mutually exclusive offences. The court found that the verdicts were consistent and able to be sustained on the evidence.

The court dismissed the applicant's application for leave to appeal against his conviction.

Orders