Nguyen v The Queen - [2013] HCA 32

HIGH COURT OF AUSTRALIA
FRENCH CJ,
KIEFEL, BELL, GAGELER AND KEANE JJ
DANG KHOA NGUYEN APPELLANT
AND
THE QUEEN RESPONDENT
Nguyen v The Queen
[2013] HCA 32
27 June 2013
M30/2013
ORDER
1.Appeal allowed.
2.Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made in respect of the appellant on 18 December 2009 and, in their place, order that:
(a)leave to appeal to that Court against the appellant's convictions be granted;

(b)the appeal to that Court be allowed;

(c)the appellant’s convictions be quashed; and

(d)a new trial be had on both counts.

On appeal from the Supreme Court of Victoria
Representation
O P Holdenson QC with C B Boyce for the appellant (instructed by Victoria Legal Aid)
T Gyorffy SC with D I Piekusis for the respondent (instructed by Director of Public Prosecutions (Vic))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Nguyen v The Queen

Criminal law – Murder – Practice and procedure – Directions to jury – Available alternative charge – Whether position of appellant and co-accused sufficiently distinguishable to affect adequacy of directions to jury – Whether reasonably open to jury to return alternative verdict of manslaughter – Whether failure to leave alternative verdict to jury constituted wrong decision on question of law – Whether substantial miscarriage of justice occurred.
Words and phrases – "alternative verdict of manslaughter", "substantial miscarriage of justice".

FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ. In September and October 2007, Dang Khoa Nguyen ("the appellant"), Bill Ho and Dang Quang Nguyen ("Nguyen") were tried together before Williams J and a jury in the Supreme Court of Victoria. Each was charged with the murder of Hieu Trung Luu ("Luu") and the attempted murder of Chau Minh Nguyen ("Chau").
The Crown case was that on 8 November 2004 Bill Ho shot both Luu and Chau, and that the appellant and Nguyen were complicit in Bill Ho's crimes.
The evidence at trial was that the three men had gone together to a flat in Carlton to collect a debt owed either to Bill Ho or to the appellant for drugs supplied to a man named Mau Duong ("Mau"). Mau was not at the flat, but seven other young people were. Some were asleep, and some were watching television. Nguyen entered the lounge room of the flat waving a Samurai sword with which he inflicted cuts on two or three of the occupants of the flat. Bill Ho produced a revolver that he had brought with him. He fired two shots, the first of which hit Chau; the second hit Luu. Chau survived; but Luu's wound was fatal.
The case against the appellant and Nguyen was put on three different bases of criminal complicity: acting in concert, common purpose or extended common purpose and aiding and abetting. The contention was that they were both party to an agreement with…

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 [2013] HCA 32
Case: [2013] HCA 32
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the prosecution against a decision of the Court of Appeal which had favoured Nguyen. Nguyen sought to uphold the Court of Appeal's orders, arguing that his appeal to that court should have been allowed on the ground of a misdirection to the jury by the trial judge. This misdirection concerned the failure to direct the jury to consider whether, if Bill Ho was found guilty of murder, Nguyen and another party might be guilty of manslaughter rather than murder.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to leave manslaughter as an available verdict for Nguyen, even if Bill Ho was found guilty of murder. This question arose in the context of the evidence presented at trial, which suggested that Nguyen was aware that Bill Ho had produced and manipulated a firearm in a threatening manner before a shooting occurred.

The High Court reasoned that if Nguyen was a party to an agreement, or had contemplated or provided assistance directed towards a lesser assault than one intended to kill, then it would have been open to the jury to conclude that, despite not being guilty of attempted murder, a verdict of manslaughter should be returned on the murder charge. The Court found that the trial judge's directions did not allow for this possibility, constituting a wrong decision on a question of law. Consequently, the High Court ordered that Nguyen should have special leave to cross-appeal, his cross-appeal be allowed, his convictions on both counts be quashed, and a new trial be had.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ

The prosecution appealed from that decision to this Court pursuant to a grant of special leave against the Court of Appeal's orders in favour of Nguyen, who, in turn, sought to uphold the orders of the Court of Appeal in his favour. Nguyen submitted that the Court of Appeal should have allowed his appeal on the ground of a misdirection to the jury. This ground, which had been raised before the Court of Appeal by both Nguyen and the appellant, was to the effect that the trial judge had erred in law in failing to direct the jury to consider whether, in the event that the jury were satisfied that Bill Ho was guilty of murder, Nguyen and the appellant might be guilty of manslaughter rather than murder.This Court's decision in R v Nguyen In R v Nguyen[4] this Court reviewed the evidence given at trial[5], concluding that[6]: "On the whole of the evidence, it was open to the jury to be satisfied, beyond reasonable doubt, that all three men had come to the flat searching for Mau Duong for payment of a debt … and … [that] Nguyen used the sword in a way that showed his willingness to inflict cutting injuries on those in the flat … [and] that, before the first shooting, Bill Ho had produced a revolver and had spun the cylinder in an attempt to intimidate those who were in the room … and … that … Nguyen (like other occupants of the room) must have seen the gun that Bill Ho had produced and was manipulating in a threatening manner." [4](2010) 242 CLR 491.[5]R v Nguyen (2010) 242 CLR 491 at 495-497 [13]‑[24].[6]R v Nguyen (2010) 242 CLR 491 at 498 [25]-[26]. On this basis, it was held that the Court of Appeal erred in concluding that the verdicts against Nguyen were unreasonable or could not be supported having regard to the evidence[7].[7]R v Nguyen (2010) 242 CLR 491 at 501 [39]. This Court went on to consider the directions given by the trial judge, concluding that the trial judge "made a wrong decision on a question of law" in failing "to leave manslaughter as an available verdict against [Nguyen], even if Bill Ho was guilty of murder."[8] If Nguyen was party to an agreement, or had in contemplation, or provided assistance directed to some lesser assault than one intended to kill, it would have been open to the jury to conclude that, although he was not guilty of the charge of attempted murder, a verdict of manslaughter should be returned in respect of the count charging him with murder. As the Court said[9]: "The trial judge's directions did not admit of that possibility."[8]R v Nguyen (2010) 242 CLR 491 at 505 [50].[9]R v Nguyen (2010) 242 CLR 491 at 505 [49]. It was ordered that Nguyen should have special leave to cross‑appeal, his cross-appeal be allowed, his convictions on both counts be quashed and a new trial be had[10].[10]R v Nguyen (2010) 242 CLR 491 at 506 [56]-[57].The appellant's appeal to this Court Subsequent to this Court's decision in R v Nguyen, the appellant applied for, and was granted, special leave to appeal to this Court on the footing that he suffered a substantial miscarriage of justice by reason of the same error of law identified in R v Nguyen.The arguments of the parties

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ

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