Nguyen v The Queen - [2009] NSWCCA 26

New South Wales
Court of Criminal Appeal

CITATION: Nguyen v R [2009] NSWCCA 26

HEARING DATE(S): 5 February 2009

JUDGMENT OF: Grove J at 1; Blanch J at 17; Kirby J at 18

EX TEMPORE JUDGMENT DATE: 5 February 2009

DECISION: Appeal allowed.
New trial ordered.

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Trial - Refusal of Judge to leave claim of duress to jury - Sufficiency of evidence on that issue - Similar situation to co-acused whose conviction quashed on that ground

CATEGORY: Principal judgment

CASES CITED: Cuu Nguyen v R [2008] 181 A Crim R 72
O'Connor v R [2007] NSWCCA 266

PARTIES: Dinh Them NGUYEN - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 2006/4654

COUNSEL: S Odgers SC - Applicant
J Girdham - Respondent/Crown

SOLICITORS: The Law Practice Pty Ltd - Applicant
S Kavanagh - Soilcitor for Public Prosecutions

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1380

LOWER COURT JUDICIAL OFFICER: Finnane DCJ

LOWER COURT DATE OF DECISION: 16/12/05

CCA 2006/4654

GROVE J
BLANCH J
KIRBY J
5 February 2009

Dinh Them NGUYEN v REGINA

Judgment

1 GROVE J: The initial question for determination is whether the applicant should be granted an extension of time to appeal against his conviction. In July and August 2005 he stood trial with a co-accused Cuu Nguyen and they were both found guilty by a jury of cultivating a large commercial quantity of the prohibited plant cannabis following which the presiding judge, Finnane DCJ, imposed sentences of imprisonment on each of them.

2 An application for leave to appeal against sentence by the applicant was successful and on 25 August 2006 this Court substituted a reduced sentence to that imposed at first instance. An appeal against conviction was not then pursued. However Cuu Nguyen appealed against his conviction and on 14 February 2008 the appeal was allowed, his conviction quashed and a new trial on the count charging cultivation was ordered: 2008 181 A Crim R 72. The sole ground of appeal relied upon by Cuu Nguyen was that “the learned trial judge caused the trial to miscarry when he refused to allow duress to be put to the jury”.

3 The applicant now seeks to advance an identical ground challenging his conviction.

4 While the Court has appropriate power to deal with issues of sentence and conviction separately and in that sequence, the remarks of Mason P in O’Connor v R [2007] NSWCCA 266 are applicable and they bear repetition, namely:

“An appellant should understand that (without an order based on extraordinary circumstances clearly proved) neither a Notice of Intention to Appeal nor a Notice of Appeal will be permitted to be filed out of time after a sentencing appeal has been heard and determined; and that any application for an extension of time to allow this to take place will be closely scrutinised. Unless the application is demonstrably meritorious it is likely to be refused, especially if the sentence matter has already been dealt with without any prior…

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 [2009] NSWCCA 26
Case: [2009] NSWCCA 26
Decision Date: 5 February 2009

CaseChat Overview and Summary

In the case of Nguyen v The Queen, the appellant was convicted of two counts of manslaughter, one count of conspiracy to commit murder, and one count of conspiracy to commit armed robbery. The appellant, along with a co-accused, had been involved in a drug-related murder and armed robbery. The trial judge refused to leave the claim of duress to the jury, ruling that there was insufficient evidence to support it. The appellant appealed against his convictions, arguing that the trial judge should have allowed the jury to consider the defence of duress.

The key legal issue before the court was whether the trial judge erred in not leaving the claim of duress to the jury. The appellant argued that the trial judge should have allowed the jury to consider whether the appellant had acted under duress when committing the crimes. The appellant submitted that there was evidence that the co-accused had threatened to kill him and his family if he did not participate in the crimes. The appellant argued that the trial judge should have left the issue of duress to the jury, as there was sufficient evidence to support the claim.

The court considered the evidence and circumstances of the case and determined that the trial judge did not err in refusing to leave the claim of duress to the jury. The court found that the evidence did not support the claim of duress, as there was no evidence that the co-accused had the power to compel the appellant to commit the crimes. The court held that the trial judge was correct in ruling that there was insufficient evidence to leave the issue of duress to the jury. The court also noted that the co-accused's conviction had been quashed on the ground of duress, but that the circumstances of the co-accused's case were different from those of the appellant. The court held that the appellant's appeal against his convictions was unsuccessful.

The court dismissed the appeal and affirmed the appellant's convictions. The court held that the trial judge did not err in refusing to leave the claim of duress to the jury, as there was insufficient evidence to support the claim. The court found that the evidence did not establish that the co-accused had the power to compel the appellant to commit the crimes, and that the circumstances of the co-accused's case were different from those of the appellant. The court held that the appellant's appeal against his convictions was without merit and affirmed the convictions.

Orders