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Nguyen v The Queen

Nguyen v The Queen

Case [2017] NSWCCA 4 2 February 2017

Appeal

Admissibility of Evidence

Expert Evidence

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 4
Hearing dates: 24 November 2016
Decision date: 02 February 2017
Before: Basten JA at [1];
R A Hulme J at [81];
Schmidt J at [101]
Decision:
Refuse leave to appeal against convictions on four counts of supplying a prohibited drug.

Catchwords:
APPEAL – criminal – supply of drugs – circumstantial evidence – silence of accused – deemed supply charge – adequacy of directions to jury – absence of request for further directions – leave required
EVIDENCE – identification evidence – expert opinion – voice recognition – comparison of voices on telephone intercepts and electronically recorded interview – whether admissible as identification evidence – whether subject to exclusion as opinion evidence – whether experience of repeated listening results in ad hoc expertise – whether admissible as expert evidence
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 6
Criminal Appeal Rules, r 4
Drug Misuse and Trafficking Act 1985 (NSW), s 29
Evidence Act 1995 (NSW), ss 9, 20, 29, 55, 76, 78, 79, 114, 115, 116, 135, 137, 165; Dictionary
Cases Cited: Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
Fryer v Gathercole (1849) 13 Jur 542
Irani v R [2008] NSWCCA 217
Nasrallah v R [2015] NSWCCA 188
R v Adler (2000)-(2001) 52 NSWLR 451; [2000] NSWCCA 357
R v Browne and Angus (1951) 99 CCC 141
R v Brownlowe (1987) 7 NSWLR 461
R v Butera (1987) 164 CLR 180
R v E J Smith [1984] 1 NSWLR 462
R v E J Smith (1987) 7 NSWLR 444
R v Griffiths [1997] 2 Qd R 524
R v Leung (1999) 47 NSWLR 405; [1999] NSWCCA 287
R v Madigan [2005] NSWCA 170
R v Palmer [1981] 1 NSWLR 209
R v Smith (1983) 33 SASR 558
R v Trudgett (2008) 70 NSWLR 696; [2008] NSWCCA 62
R v Wilson (2006) 62 NSWLR 362; [2005] NSWCCA 20
Regina v Riscuta and Niga [2003] NSWCCA 6
Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50
Texts Cited: J D Heydon, Cross on Evidence (10th ed, Butterworths, 2015)
Category: Principal judgment
Parties: Ngoc Vu Vi Nguyen (Applicant)
Crown (Respondent)
Representation:
Counsel:
Mr P Lange (Appellant)
Mr N Adams (Respondent)
Solicitors:
Stephen Alexander (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/155554
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

10 November 2014

Before:

Maiden SC DCJ

File Number(s):

2012/155554

Judgment

BASTEN JA: On 14 August 2014, Ngoc Vu Vi Nguyen, was convicted in the District Court on four counts of supplying a prohibited drug, namely methylamphetamine (ice). The supplies took place on 8 May and 15 May 2012. She was sentenced to an effective term of 8 years and 6 months with a non-parole period of 5 years and 6 months. The sentence was imposed on 10 November 2014 and back-dated to commence…

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 [2017] NSWCCA 4
Case: [2017] NSWCCA 4
Decision Date: 02 February 2017

CaseChat Overview and Summary

In the case of Nguyen v The Queen, the appellant was convicted of supplying a prohibited drug and appealed the decision to the High Court of Australia. The appeal centred on the sufficiency of the evidence against the appellant and the adequacy of the trial judge's directions to the jury. The key issues included the admissibility of voice recognition evidence and the impact of the appellant's silence on the charge of deemed supply. The High Court was tasked with determining whether the evidence provided was sufficient to support the conviction and whether the trial judge's directions to the jury were adequate.

The court examined the nature of the evidence against the appellant, which included circumstantial evidence and voice recognition analysis. The voice recognition evidence was critical, as it was used to link the appellant to intercepted telephone conversations and an electronically recorded interview. The court considered whether this evidence was admissible as identification evidence or whether it constituted opinion evidence subject to exclusion. Furthermore, the court assessed whether the experience of the expert in repeatedly listening to the recordings amounted to ad hoc expertise, thereby qualifying the evidence as expert testimony.

The High Court concluded that the evidence, including the voice recognition analysis, was sufficient to support the conviction. The court found that the trial judge's directions to the jury were adequate, as there was no request for further directions from the defence. The court also determined that the voice recognition evidence was properly admitted as it was not opinion evidence but rather identification evidence based on the expert's repeated listening and comparison of voices. The appeal was ultimately dismissed, and the conviction was upheld.

The High Court's decision underscores the importance of the proper admission and evaluation of voice recognition evidence in criminal trials. The court's ruling affirms the trial judge's handling of the case and the sufficiency of the evidence presented. The final orders of the court were to dismiss the appeal and affirm the conviction of the appellant.

Orders