Nguyen v The Queen - [2015] VSCA 76

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0030

VAN THEN NGUYEN	Applicant
v
THE QUEEN	Respondent

AND

S APCR 2014 0055

LOAN THI TRAN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 April 2015
DATE OF JUDGMENT:	30 April 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 76
JUDGMENT APPEALED FROM:	DPP v Tran & Anor [2013] VCC 2145 (Judge Stuart)

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CRIMINAL LAW – Conviction – Trafficking in a large commercial quantity of heroin – Various directions of law made during course of trial – Judge provided jury with folder containing transcript of previous directions and indicated in charge that all previous directions ‘stand’ – Whether provision of folder in substitution for oral restatement of relevant directions gave rise to substantial miscarriage of justice – Judge entitled to incorporate previous directions in way that he did – No objection taken by counsel at trial – Leave to appeal refused.

CRIMINAL LAW – Conviction – Large portion of Crown case consisted of telephone intercepts and listening device product of conversations involving accused – Whether judge failed adequately to relate directions of law on issue of intent with particular facts and evidence in the case – No benefit to accused in having relevant prosecution evidence repeated in judge’s charge – No objection taken by counsel at trial – Leave to appeal refused.

CRIMINAL LAW – Conviction – Whether passage in judge’s charge amounted to a direction to convict – Judge merely explaining how jury could arrive at a unanimous verdict and summarising submission that had been put by prosecutor – Leave to appeal refused.

CRIMINAL LAW – Conviction – Two accused convicted on basis of joint criminal enterprise – Crown case was that accused carried on business of trafficking in Giretti sense – Evidence at trial was that one accused was principal offender and the other assisted with trafficking activities – Judge did not in terms direct jury as to requirement that parties formed an agreement to engage in ongoing business of trafficking as an element of joint criminal enterprise – Whether failure to do so resulted in substantial miscarriage of justice – Verdict of jury must necessarily have entailed requisite finding as to agreement in light of directions given and evidence at trial – No substantial miscarriage of justice – Leave to appeal refused.

CRIMINAL LAW – Sentence – 8 years with non-parole period of 5 years – Accused Tran principal offender in trafficking business – Total amount of heroin trafficked approximately 1.8 kilograms –Whether sentence manifestly excessive – Few mitigating factors of substance – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Nguyen	Mr C B Boyce SC with Ms G F Connelly	Grigor Lawyers
For the Applicant Tran	Mr B Walmsley QC	Slades & Parsons
For the Crown	Mr O P Holdenson QC	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WEINBERG JA
PRIEST JA
BEACH JA:

The applicants, Loan Thi Tran and…

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: Van Then Nguyen v The Queen [2015] VSCA 76
Case: [2015] VSCA 76
Decision Date: 30 April 2015

CaseChat Overview and Summary

The appellant, Nguyen, was convicted of trafficking in a large commercial quantity of heroin and the sentence imposed was 8 years imprisonment with a non-parole period of 5 years. The appeal to the High Court concerned various aspects of the trial and sentence. The first issue was whether the judge's provision of a folder containing the transcript of previous directions to the jury, rather than orally restating the relevant directions, constituted a substantial miscarriage of justice. The second issue was whether the judge adequately related directions of law on the issue of intent to the specific facts and evidence in the case. The third issue was whether a passage in the judge's charge amounted to a direction to convict. The final issue was whether the failure to direct the jury on the requirement that the parties formed an agreement to engage in an ongoing business of trafficking as an element of a joint criminal enterprise resulted in a substantial miscarriage of justice.

The court held that the judge was entitled to incorporate previous directions in the way that he did, and there was no substantial miscarriage of justice in the provision of the folder. The court also held that there was no benefit to the appellant in having the relevant prosecution evidence repeated in the judge's charge, and that the judge's charge did not amount to a direction to convict. Finally, the court held that the failure to direct the jury on the requirement of an agreement to engage in an ongoing business of trafficking did not result in a substantial miscarriage of justice because the verdict necessarily entailed the requisite finding as to the agreement.

The appeal was dismissed, and the conviction and sentence were upheld. The court held that the sentence was not manifestly excessive given the appellant's role as the principal offender in the trafficking business and the total amount of heroin trafficked.

Orders