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Nguyen v The Queen

Nguyen v The Queen

Case [2015] NSWCCA 78 29 April 2015

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nguyen v R [2015] NSWCCA 78
Hearing dates: 8 April 2015
Decision date: 29 April 2015
Before: Beazley P;
RA Hulme J;
Adamson J
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the appellant’s conviction and enter a verdict of acquittal.
(4) Order that the appellant be released forthwith.

Catchwords:
CRIMINAL LAW – Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) – appeal against conviction

CRIMINAL LAW – effect of failure to direct the jury as to an essential element of the offence – whether proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied – whether appellate court should enter alternative verdict pursuant to s 7(2) of the Criminal Appeal Act 1912

CRIMINAL LAW – whether verdict was unreasonable or could not be supported having regard to the evidence
EVIDENCE – probative value of lies of the accused
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases Cited: Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; 246 CLR 92
Doggett v The Queen [2001] HCA 46; 208 CLR 343
Eade v The King (1924) 34 CLR 154
Edwards v R [1993] HCA 63; 178 CLR 193
Ka Chung Fung v R [2007] NSWCCA 250; 174 A Crim R 169
M v The Queen [1994] HCA 63; 181 CLR 487
Mehajer v R [2014] NSWCCA 167
MFA v R [2002] HCA 53; 213 CLR 606
Peacock v R [1911] HCA 66; 13 CLR 619
Pemble v R [1971] HCA 20; 124 CLR 107
R v Gulliford [2004] NSWCCA 338; 148 A Crim R 558
R v Heyde (1990) 20 NSWLR 234
R v Lau (1998) 105 A Crim R 167
R v Micalizzi [2004] NSWCCA 406
R v Moussa [2001] NSWCCA 427; 125 A Crim R 505
SKA v The Queen [2011] HCA 13; 243 CLR 400
Zoneff v The Queen [2000] HCA 28; 200 CLR 234
Category: Principal judgment
Parties: Thuy Le Nguyen (Appellant)
Regina (Respondent)
Representation:
Counsel:
T Gartelmann (Appellant)
H Roberts (Respondent)
Solicitors:
Criminal & Traffic Law (Appellant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2012/43727
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

04 October 2013

Before:

Lakatos DCJ

File Number(s):

2012/43727

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant appeals against her conviction of one count of supplying not less than the commercial quantity of a prohibited drug (heroin) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the Act), for which she was tried with the co-accused Hung Vu (Vu) and found guilty by a jury. Vu was the appellant’s former de facto husband. The drugs were found in a chip bag found on the front passenger side floor of…

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 [2015] NSWCCA 78
Case: [2015] NSWCCA 78
Decision Date: 29 April 2015

CaseChat Overview and Summary

The appeal concerns the conviction of Nguyen, who was found guilty under section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The central issue was whether the primary judge erred in failing to direct the jury regarding an essential element of the offence. The appeal was brought to the court, which had to determine the effect of the primary judge's failure to provide this direction, and whether the proviso to section 6(1) of the Criminal Appeal Act 1912 (NSW) should be applied. The court also needed to decide whether an alternative verdict should be entered under section 7(2) of the Criminal Appeal Act 1912.

The court examined whether the jury's verdict was unreasonable or could not be supported by the evidence, given the absence of a proper direction. It was crucial to consider the probative value of the lies told by the accused, which were significant in the case. The court concluded that while the primary judge did not provide the necessary direction, the error was not so significant that it affected the safety of the verdict. The jury had sufficient evidence to find Nguyen guilty beyond reasonable doubt, and the lies of the accused, though important, did not undermine the overall reliability of the evidence.

The court held that the appeal should be dismissed, as the error did not impact the safety of the verdict. The jury's conclusion was reasonable and supported by the evidence, and therefore, no alternative verdict was necessary. The court did not find the verdict unreasonable or unsupported by the evidence. The lies of the accused, while significant, did not alter the overall reliability of the evidence presented. The final orders of the court were that the appeal against conviction was dismissed.

Orders