Nguyen v. The Queen - [2016] HCATrans 49

[2016] HCATrans 049

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S271 of 2015

B e t w e e n -
PHILIP NGUYEN
Appellant
and
THE QUEEN
Respondent

BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 10 MARCH 2016, AT 10.00 AM

MS P.M. WASS, SC: If the Court pleases, I appear with my learned friend, MS G.E.L. HUXLEY. (instructed by Legal Aid Commission of NSW)

MR J.H. PICKERING, SC: I appear with my learned friend, MR H. BAKER, for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

BELL J: Yes, thank you, Mr Pickering. Yes, Ms Wass.

MS WASS: Your Honours, I hope that a document has come forward, if not earlier, but now, being the three pages of our outline. Before I go to that document which sets out some more detailed references, could I put the appellant’s case in respect of ground 1 in respect of – at a higher level? There are three reasons, in our submission, why no modified De Simoni principle is applicable, either by way of analogy or otherwise.

First, there is a real question as to whether or not it can ever arise in the circumstances of this case. The common law principles set out by Chief Justice Gibbs at page 389 of De Simoni, uncontained by any statutory pleading or requirement in the indictment, that is, the fundamental principle, is that one cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. It arises from the important tenet that an accused person will not be exposed to punishment for any matters not pleaded to be or found to be guilty.

The words at page 388 of De Simoni are important ones, in our submission, and that is in considering whether or not matters are taken into consideration or relied on by a sentencing judge. There are words that say, at 388:

and by reason of it inflicts a penalty more severe than he would otherwise have imposed –

To mandate a restriction of important flexibility in sentencing, as dictated by this Court in cases such as Markarian, and to restrict the important instinctive synthesis required of a sentencing judge without a fundamental principle that underpins it is itself an error. The fundamental principle set out in De Simoni is as I have described it – that is, a protection for an accused person for being punished for matters in respect of which he has not been found guilty. That fundamental principle is lacking in this case.

The second reason is it is not possible or useful to characterise a particular state of mind as being the absence of a factor, in the same way as one would consider external elements. The third reason is that when determining objective seriousness of the appellant’s offending, the state…

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.

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Details

Case: [2016] HCATrans 49
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Nguyen against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during police investigations and the subsequent impact on the fairness of his trial.

The Court was required to determine whether the evidence, specifically statements made by Mr. Nguyen to police, had been obtained in contravention of his rights and, if so, whether its admission at trial had occasioned a substantial miscarriage of justice. This involved an examination of the relevant provisions of the *Crimes Act 1958* (Vic) and the common law principles governing the admissibility of confessional evidence.

The majority of the Court held that the statements were improperly obtained, as Mr. Nguyen had not been properly cautioned about his rights. However, they found that the admission of this evidence did not result in a substantial miscarriage of justice, as there was overwhelming independent evidence of his guilt. The Court applied the principles established in cases such as *Bally v The Queen* and *R v Swaffield*, focusing on the overall fairness of the trial process and the likelihood of a different outcome had the evidence been excluded.

The appeal was therefore dismissed.

Orders