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

1. 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 The amending Act repealed, inter alia, subsections (f), (g), (h), (j), (m) and (n) of s 27 of the Code, which were under the title “Circumstances in which force not being such force as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”.

1. 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.

2. 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.”

3. 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 the indictment and to say whether he is guilty or not guilty of the charge. It is at that time that an accused person is “proceeded against” for the purposes of s 14. In the present case the appellant was arraigned on 4 June 2002 and it was at that time that he was “proceeded against” in relation to the offence of which he was subsequently found guilty. Prior to that time the matter may have been dealt with by the delivery of a “no true bill” under s 297A, the charges may have been altered under s 299, an ex officio indictment may have been presented pursuant to s 300 or a nolle prosequi presented pursuant to s 302 of the Criminal Code.

4. In considering the application of s 14(1) of the Criminal Code it is necessary to determine in a particular case whether “the conduct impugned would have constituted an offence under the law in force” both when it occurred and when the accused is proceeded against for that conduct. Reference to s 2 of the Code reveals that an offence is committed when a person who possesses the prescribed mental element “does, makes or causes the act, omission or event … constituting the offence where the act, omission or event, or each of them, is not authorised or justified”. As was submitted by the appellant, the effect of that section is that liability only attaches where there is a coincidence between the prescribed physical and mental elements of a criminal offence in the absence of any authorisation or justification. Further, by reference to s 23 of the Code, it can be seen that a person is “not guilty of an offence if any act, omission or event constituting that offence done, made or caused by him was authorised, justified or excused.”

5. It was the submission of the respondent that the application of s 14 was limited to amendments to the Criminal Code that either created or abolished offences. It was submitted that this section has no application to an amendment to the Criminal Code dealing with a recasting of the justification provisions as occurred in September 2001. It was said that s 14 refers only to “the conduct” that was impugned and not to whether that conduct might be justified by reference to Division 3 of Part II of the Criminal Code.

6. In our view, such a restrictive approach to the meaning of s 14 is not warranted. The words of the section are not limited as the submission would suggest, but rather have application where the conduct impugned “would have constituted an offence”. Determination of whether conduct impugned would have constituted an offence involves a consideration of whether the conduct was justified by virtue of the provisions of Part II of the Criminal Code. The correct approach is similar to that adopted by Callinan J in Charlie v The Queen (1999) 199 CLR 387 where at 407 his Honour considered s 2 of the Northern Territory Criminal Code. His Honour had this to say:

   “Counsel for the respondent in his submissions contended that some guidance was to be obtained from the omission of the word “excused” from s 2 of the Code which provides that an offence is committed when a person possessing any prescribed mental element does, makes or causes the relevant act, omission or event in circumstances in which the act, omission or event is not authorised or justified. The respondent argued that the section, defining as it did what is required for the commission of an offence, specifically contemplates that “excuse” (unlike authorisation or justification) is of no relevance to the primary question whether an offence has been committed; that the role of the exculpatory provisions (if applicable) is to determine, once it has been decided that an offence has been committed, whether an offender should be held criminally responsible for his or her conduct.

   This argument is not persuasive.  The difficulty about it is that if authorisation or justification exists then no offence has been committed and a verdict of not guilty will be entered.  The position might have been different had the phrase “constituting what would otherwise be an offence” been used, instead of the words “constituting the offence”. 

7. In subsequent written submissions made on behalf of the respondent it was contended that s 2 had application only to those sections within Part I of the Code where “the term commission of offence, or like terms, appear”. It was submitted that, as s 14(1) does not contain such a term, s 2 has no application to it. The submission is without merit. Section 2 applies to the whole of Part I and s 14(1), which is within that Part, is to be read subject to that section.

8. Our attention has been drawn to the ex tempore ruling of Angel J in R v Karr (unreported, 3 April 2003) where his Honour limited the application of s 14 to situations “where there is a substantive change of the law making conduct once criminal no longer criminal or alternatively conduct not criminal to criminal”. This in our view begs the question as to what is meant by “the conduct impugned” and whether or not that includes conduct which justifies or excuses an accused from criminal responsibility. One view is that conduct is only “impugned” if that conduct results in criminal responsibility. Where a person is not criminally responsible because he acted in self defence, the conduct was not impugned at all. Therefore, where the law relating to self defence changes so that conduct is impugned under the former definition, but not impugned under the latter, s 14 applies so that the accused must be acquitted. This would give the word “impugn” a meaning “to find fault with” (see definition 2 in the Shorter Oxford Dictionary). Alternatively “impugn” might mean simply “to call into question” (see definition 1 of the Shorter Oxford and also the Macquarie Dictionary). The conduct which is impugned in this sense would include the conduct relied upon by the accused as amounting to self-defence, because the whole of the accused’s conduct must be called into question in order to decide whether he is guilty or not. Under s 14, it is the same conduct which is considered in each case, and the question is whether that conduct would have constituted an offence under the law at the time of its occurrence and also at the time he is proceeded against. Which ever way you look at it, the result is the same.

9. The respondent also submitted that the interpretation of s 14, for which the appellant contended, placed that section in conflict with s 12(c) of the Interpretation Act. The short answer to that proposition is to be found in the application of the principle reflected in the maxim generalia specialibus non derogant. Section 12(c) of the Interpretation Act is a provision of general application and must give way to s 14(1) of the Code which is a provision of specific application.

10. Turning to the present matter, the appellant could not be found guilty of an offence unless his conduct would have constituted an offence under the law in force (a) when it occurred and (b) when he was proceeded against. It was necessary for the Crown to negative justification on each of those occasions. If the Crown has not established to the required standard, that the conduct of the appellant was not justified by reference to Division 3 of Part II of the Criminal Code, both at the time of the conduct occurring and at the time when he was proceeded against, then he is entitled to be found not guilty. The relevant law applicable to this aspect of the matter was to be found in s 27 as it existed at the time of the conduct and in s 29 as that section existed at the time the appellant was proceeded against.

11. It follows from the above that the amended provision, s 29, if available in the circumstances of the case, should have been left to the jury.  The respondent did not contend that s 29 was not available.  Error occurred.  The appeal should be allowed.  The conviction is set aside and we order a new trial.