Nguyen v The Queen - [2013] HCATrans 127

[2013] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M30 of 2013

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

FRENCH CJ
HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 JUNE 2013, AT 10.02 AM

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR C.B. BOYCE, for the appellant. (instructed by Victoria Legal Aid)

MR T. GYORFFY, SC: May it please the Court, I appear with my learned friend, MS D.I. PIEKUSIS, for the respondent. (instructed by Director of Public Prosecutions (Vic))

FRENCH CJ: Yes. Mr Gyorffy, as you have probably been advised, we would like to hear first on the question raised on the summons of the extension of time of the notice of contention and the question whether leave should be granted to argue that Gilbert was wrongly decided.

MR GYORFFY: Yes, your Honour. Your Honour, we rely on the affidavit of Ms Aridas, filed on 9 May 2013. Essentially, the reason why the notice was filed late was that there was an unfortunate choice of juniors, three of whom had to return the brief before we could work on the matter. It was an extensive and complex brief which required consideration of whether this issue of Gilbert truly arose in the factual context that was there, and it took us until Friday, 3 May to get on top of the materials and come to the conclusion that we should seek to file a notice of contention.

We attempted to do so on the fifth, so we are about 15 days out of time in relation to that, and we would submit, as set out in 1.2 of our outline of oral propositions that there has been no prejudice caused to the appellant who has had the opportunity to respond fully to the notice of contention in written submissions. We submit that the notice itself raises a matter of substantial public importance in the sense that the true principal issue here is one that would apply across Australia, and it is the answer to the question what may be taken into account in determining whether or not in a particular case there has been a substantial miscarriage of justice. The principle in Gilbert is contrary to the law in every other offence on the criminal calendar, and we would argue it is an anomaly ‑ ‑ ‑

KIEFEL J: Here the respondent, as the appellant points out at paragraph 17 of the outline, made no similar contention in the other matter of Nguyen reported at 242 CLR 491.

MR GYORFFY: That is so, your Honour, because we saw that as a very different factual situation at the time. We have set out in our submissions on the appeal why the factual situation here…

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 [2013] HCATrans 127
Case: [2013] HCATrans 127
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 whether its admission had occasioned a miscarriage of justice.

The High Court was required to determine whether the trial judge had erred in admitting evidence that was obtained in circumstances that may have infringed the appellant's rights. Specifically, the court had to consider whether the evidence was obtained in contravention of the *Crimes Act 1914* (Cth) and, if so, whether its admission was nonetheless justified under the proviso in s 6(1) of the *Criminal Appeal Act 1912* (NSW) (which mirrors s 371(1) of the *Criminal Code Act 1899* (Qld) and s 237 of the *Criminal Code Act 1983* (NT)). This involved assessing whether there was a reasonable probability that the jury would have acquitted the appellant had the evidence not been admitted.

The Court held that the evidence in question was obtained in contravention of the appellant's rights. However, applying the proviso, the Court found that there was no reasonable probability that the jury would have reached a different verdict had the evidence been excluded. The Court reasoned that the other evidence before the jury was so compelling that the admission of the contested evidence did not occasion a miscarriage of justice.

The appeal was dismissed.

Orders