JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : COURT OF CRIMINAL APPEAL
CITATION: NGUYEN -v- THE QUEEN [2005] WASCA 22
CORAM: MURRAY J
TEMPLEMAN J
MCLURE J
HEARD: 16 DECEMBER 2004
DELIVERED : 16 DECEMBER 2004
PUBLISHED : 25 FEBRUARY 2005
FILE NO/S: CCA 42 of 2004
BETWEEN: VAN HOA NGUYEN
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :YEATS DCJ
Citation :R v NGUYEN
File No :IND 1927 of 2003
Catchwords:
Criminal law - Appeal against conviction - Migration offences - Defence of sudden or extraordinary emergency - Whether sufficient direction as to nature of defence
Legislation:
Criminal Code Act 1995 (Cth), s 10.3(1)
Migration Act 1958 (Cth), s 232A
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr L M Levy
Respondent: Mr D W L Renton
Solicitors:
Appellant: Laurie Levy & Associates
Respondent: Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Perka v The Queen (1984) 14 CCC (3d) 385
Case(s) also cited:
BRK & Ors v The Queen [2001] WASCA 161
R v Abdul-Hussain [1999] Crim LR 570
R v Loughnan [1981] VR 443
R v Mathebula [2004] VSCA 74
R v Rogers (1996) 86 A Crim R 542
R v Wright [1999] 3 VR 355
MURRAY J: The reasons published by Templeman J, with which I agree, express sufficiently for me the reasons why I joined in the final orders made on the hearing of the appeal.
TEMPLEMAN J: The appellant was convicted on 17 March 2004, following a trial by Judge and jury in the District Court, on a single count of contravening s 232A of the Migration Act 1958 (Cth). The appellant's appeal against that conviction was allowed at the hearing on 16 December 2004. The conviction was quashed and a retrial ordered: reasons were to be given later. These are my reasons for joining in that decision.
It was alleged against the appellant that he had organised the bringing to Australia of a group of five or more people to whom s 42(1) of the Migration Act applied – that is, people who were not Australian citizens and had no visas – and that he had so acted, reckless as to whether the 53 persons within the group had a lawful right to enter Australia.
The appellant and his group came to Australia by boat from the Socialist Republic of Vietnam. They left Vietnam on about 3 June 2003 and sailed to Australia via Indonesia. On 1 July 2003, they were apprehended some 12 nautical miles from Port Hedland.
It is not necessary to refer in any detail to the facts giving rise to the charge. Those facts were admitted. However, the appellant claimed to have a defence arising under s 10.3(1) of the Criminal Code Act 1995 (Cth): he contended that he had brought his group to Australia in response to circumstances of sudden or extraordinary…
Continue reading Nguyen v The Queen
Sign in free to access the full text
- AGLC
- Nguyen v The Queen [2005] WASCA 22
- Case
- [2005] WASCA 22
- Decision Date
CaseChat Overview and Summary
The High Court held that the trial judge had not sufficiently explained the defence of sudden or extraordinary emergency to the jury. The court noted that the judge's directions were inadequate in outlining the essential elements of the defence, such as the requirement for the accused to act under an immediate and unforeseen threat of death or serious bodily harm. The court further held that the lack of proper directions on this defence might have led to a miscarriage of justice, as the jury's understanding of the defence was critical to their assessment of the appellant's conduct. Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a retrial.
In its decision, the High Court emphasised the importance of ensuring that juries receive accurate and comprehensive directions on all available defences. The court acknowledged the significance of the defence of sudden or extraordinary emergency in cases involving facilitation of illegal immigration, highlighting that it should be clearly and thoroughly explained to the jury. The final orders of the court were that the appeal be allowed, the conviction quashed, and a retrial ordered to allow the appellant a fair opportunity to present the defence properly.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: TEMPLEMAN J
Full text does not contain this section.