Nguyen v The Queen - [2002] HCATrans 203

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P25 of 2001

B e t w e e n -
NHUAN VAN NGUYEN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 31 MAY 2002, AT 10.54 AM

MR B.S. HANBURY: May it please the Court, your Honour, I appear on behalf of the applicant. (instructed by Beau Hanbury)

MR R.E. COCK, QC: May it please the Court, I appear for the respondent with my learned friend, MR D.T.J. SCULLY. (instructed by the Director of Public Prosecutions for the State of Western Australia)

GUMMOW J: Thank you.

MR HANBURY: Your Honour, this case concerns the provisions of section 8 of the Criminal Code. The applicant was convicted by the jury’s verdict of manslaughter having been charged ‑ ‑ ‑

GUMMOW J: Is there anything in the Court’s recent decision in Harwood v The Queen that touches on these issues, do you know. The judgment delivered on 23 May. It dealt with the Queensland Code.

MR HANBURY: Yes. Your Honour, in my respectful submission, the issue in this case is different. The case at hand, the defence raised by the applicant throughout the trial was that he had not been aware that certain persons in the group that were involved in various offences were in fact armed with deadly weapons, that is knives, out of sight ‑ ‑ ‑

HAYNE J: Well, a billet of wood can be a deadly weapon, can it not, Mr Hanbury. Billets of wood have been used in homicide.

MR HANBURY: Much less than that, as well, but in relation to the case at hand, the issue that is raised is that, as a fact, the deceased died as a consequence of having been stabbed. The defence that was raised was that the applicant, though involved with the group, had not been aware that a knife was present, although it was quite apparent that he was aware that sticks and so forth were held by other persons, but, at the end ‑ ‑ ‑

HAYNE J: What had he taken with him?

MR HANBURY: It was alleged by the Crown that he had taken a hockey stick with him, but the jury, by its verdict, was not satisfied that that was the case and there was direction evidence given by a prosecution witness that the applicant was, in fact, armed with a hockey stick, but the jury found against that. So, at the end of the day, the case that was put by the Crown, in the applicant’s respectful submission rather broadly, was that the applicant was part and parcel of the common intension with the person that delivered the fatal blow to the deceased, because, as the Crown case unfolded, the applicant had formed a common intention to seriously assault 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 The Queen

Details

AGLC: Nguyen v The Queen [2002] HCATrans 203
Case: [2002] HCATrans 203
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered the appeal of Mr. Nguyen against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations and whether its admission had occasioned a miscarriage of justice.

The High Court was required to determine whether the trial judge had erred in admitting evidence that was obtained in circumstances where the appellant's rights may have been infringed. Specifically, the court had to consider the application of the exclusionary rule in relation to evidence obtained in contravention of statutory provisions and whether the admission of such evidence, if improperly obtained, had led to a substantial wrong or miscarriage of justice, as contemplated by s 6(1) of the Criminal Appeal Act 1912 (NSW).

The Court reasoned that the admissibility of evidence obtained in contravention of statutory provisions is not automatic. It requires a careful balancing of the public interest in the conviction of those guilty of crime against the public interest in the protection of individual rights and the integrity of the criminal justice system. The Court affirmed that where evidence is obtained in contravention of statutory provisions, its admission may be excluded if its prejudicial effect outweighs its probative value, or if its admission would be an affront to the proper administration of justice. In this instance, the Court found that the admission of the evidence, despite the potential for impropriety in its collection, did not occasion a substantial wrong or miscarriage of justice.

The appeal was dismissed.

Orders