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…
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- AGLC
- Van Then Nguyen v The Queen [2015] VSCA 76
- Case
- [2015] VSCA 76
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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