Nguyen v The Queen - [2003] NTCCA 4

Nguyen v The Queen [2003] NTCCA 4
PARTIES:NGUYEN, VAN BAO
v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CCA 12 OF 2002 (20018131)
DELIVERED:  15 April 2003
HEARING DATES:  21 March 2003
JUDGMENT OF:  MARTIN CJ, MILDREN & RILEY JJ
REPRESENTATION:
Counsel:
Appellant:D. Grace QC
Respondent:  M. Carey
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:    A
Judgment ID Number:  ril0310
Number of pages:  7

ril0310
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Nguyen v The Queen [2003] NTCCA 4
No. CCA 12 of 2002 (20018131)

BETWEEN:
VAN BAO NGUYEN

Appellant
AND:
THE QUEEN

Respondent

CORAM: MARTIN CJ, MILDREN & RILEY JJ
REASONS FOR JUDGMENT
(Delivered 15 April 2003)
THE COURT

Following a trial by jury the appellant was convicted of one count of aggravated assault contrary to s 188(1)(m) of the Criminal Code. The offence was alleged to have occurred on 11 November 2000. After the appellant had been charged and committed for trial the Criminal Code was amended with effect from 26 September 2001. The amendment introduced a new s 29 into the Code entitled “Defensive conduct justified”. The amending Act repealed, inter alia, subsections (f), (g), (h), (j), (m) and (n) of s 27 of the Code, which were under the title “Circumstances in which force not being such force as is likely to cause death or grievous harm is justified”.

The trial of the appellant proceeded in June 2002 and, during the course of the trial, an issue was raised as to whether s 27 of the Code in its unamended form applied or, alternatively, whether s 29 had application. The learned trial Judge ruled that the amendments effected were substantive rather than procedural and, as they were not expressed to be retrospective, he concluded that the presumption against retrospectivity operated to make s 27 the applicable law in this case. The appellant now challenges that ruling.
In our view the matter is to be determined by reference to s 14 of the Criminal Code, a section to which his Honour was not referred. Section 14 is in the following terms:
“14(1) A person cannot be found guilty of an offence unless the conduct impugned would have constituted an offence under the law in force when it occurred; nor unless that conduct also constitutes an offence under the law in force when he is proceeded against for that conduct.
(2) If the law in force when the conduct impugned occurred differs from that in force at the time of the finding of guilt, the offender cannot be punished to any greater extent than was authorized by the former law or to any greater extent than is authorized by the latter law.”
By virtue of s 336 of the Criminal Code a trial is deemed to begin when the accused person is called upon to plead to…

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 [2003] NTCCA 4
Case: [2003] NTCCA 4
Decision Date: 15 April 2003

CaseChat Overview and Summary

In *Nguyen v The Queen*, the Court of Appeal of Western Australia considered an appeal against a conviction for aggravated robbery. The appellant, Mr Nguyen, was found guilty by a jury of robbing a service station and was subsequently sentenced. He appealed his conviction, arguing that the trial judge had erred in admitting certain evidence and in their directions to the jury.

The central legal issues before the Court of Appeal were whether the trial judge had wrongly admitted evidence of the appellant's prior convictions and whether the judge's directions to the jury regarding the use of that evidence were adequate. Specifically, the court had to determine if the prejudicial effect of admitting the prior convictions outweighed their probative value, and if the jury was properly instructed on how to consider this evidence, ensuring it was not used as evidence of propensity.

The Court of Appeal analysed the admissibility of the prior convictions under the relevant evidence legislation, considering the purpose for which the evidence was admitted. The court found that the evidence of prior convictions was admitted for a limited purpose, namely to establish a common modus operandi between the prior offences and the offence charged. However, the court concluded that the trial judge's directions to the jury were insufficient to adequately mitigate the risk of prejudice. The directions failed to clearly explain to the jury that they must not use the prior convictions as evidence that the appellant was a person likely to commit such offences. Consequently, the court found that there was a substantial miscarriage of justice.

The Court of Appeal allowed the appeal, quashed the conviction, and ordered a new trial.

Orders