Nguyen v The Queen - [2001] WASCA 137

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

TITLE OF COURT : COURT OF CRIMINAL APPEAL

CITATION: NGUYEN -v- THE QUEEN [2001] WASCA 137

CORAM: SCOTT J

HEARD: 20 APRIL 2001

DELIVERED : 26 APRIL 2001

FILE NO/S: CCA 53 of 2001

BETWEEN: HUY DUC NGUYEN
Applicant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Bail - Application for bail pending hearing of appeal - Exceptional circumstances required

Legislation:

Bail Act 1982, Part C cl4 of Schedule 1

Result:

Application dismissed

Representation:

Counsel:

Applicant: Mr R A Mazza
Respondent: Mr M G A Plummer

Solicitors:

Applicant: Alex Palumbo
Respondent: Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bond v The Queen, unreported; CCA SCt of WA; Library No 920322; 12 June 1992
Bulejcik (1996) 86 A Crim R 467
Caratti v R [1999] WASCA 91
Chamberlain v R (1983) 153 CLR 514
Marotta v The Queen [1999] HCA 4
White v The Queen, unreported; CCA SCt of WA; Library No 940327; 6 July 1994

Case(s) also cited:

Domican v R (1991-2) 173 CLR 555
R v Turnbull [1977] 1 QB 224

SCOTT J: In this matter the applicant has applied for bail pending appeal. The applicant was convicted following his trial in the District Court of two offences. The indictment alleged:
1That between 16 and 18 November 1999 at Perth and elsewhere, he was knowingly concerned in the importation into Australia of a prohibited import to which s 233B of the Customs Act 1901 applied, namely, narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to that substance contrary to paragraph 233B(a)(d) of the said Act.
2And further and in the alternative, that on 24 November 1999 at Perth in the said State, he did without reasonable excuse attempt to obtain possession of a prohibited import to which s 233B of the Customs Act 1901 applied, namely, narcotic goods consisting of a quantity of heroin being not less than the trafficable quantity applicable to that substance, which had been imported into Australia in contravention of paragraph 233B(1)(c) of the said Act.
The applicant has appealed to the Court of Criminal Appeal in relation to each of those convictions and I am told by counsel that his appeal is listed for hearing in the July sessions of that court.
It is common ground that because the applicant has been convicted of an offence, cl 4 of Schedule 1 of the Bail Act 1982 requires the applicant to demonstrate "exceptional reasons" why he should not be kept in custody.
As to the appropriate test to be applied in these circumstances, there is some dispute in this Court as to the appropriate principles to apply. In Bond v The Queen, unreported; CCA SCt of WA; Library No 920322; 12 June 1992, Franklyn J said at 8:
"But in any event I am not persuaded that the case is of such strength as to demonstrate such a possibility of success…

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 [2001] WASCA 137
Case: [2001] WASCA 137
Decision Date: 26 APRIL 2001

CaseChat Overview and Summary

The case of Nguyen v The Queen involved an appellant who sought bail pending the hearing of his appeal against a conviction for serious drug offences. The primary legal issue before the court was whether the appellant had established exceptional circumstances that warranted the grant of bail pending appeal. The appellant argued that his prolonged incarceration had caused him significant mental health issues and that his health would continue to deteriorate if he remained in custody. The appellant further contended that the appeal had a substantial chance of success, as it involved complex issues of law and evidence.

The court examined the relevant legal principles and previous cases concerning bail applications pending appeal. It noted that exceptional circumstances must be established to justify the grant of bail in such cases, and that these circumstances must be of a high degree of seriousness. The court assessed the evidence presented regarding the appellant's mental health and the prospects of success of the appeal. It concluded that while the appellant's health issues were concerning, they did not reach the level of exceptional circumstances required for bail. Additionally, the court found that the appeal did not have a substantial chance of success, as the evidence against the appellant was strong and the legal issues raised were not likely to result in an acquittal.

Consequently, the court dismissed the appellant's application for bail pending the hearing of his appeal. The court emphasised that the decision was not a reflection on the appellant's personal circumstances but rather a determination that the exceptional circumstances necessary for bail in this context had not been proven. The court's decision highlighted the high threshold that must be met for bail to be granted in cases where an appellant is seeking release pending appeal.

Orders