Nguyen v The Queen - [2013] HCATrans 57

[2013] HCATrans 057

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M94 of 2012

B e t w e e n -
DANG KHOA NGUYEN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 MARCH 2013, AT 3.28 PM

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

MR T. GYORFFY, SC: May it please the Court, I appear with my learned friend, MR B.L. SONNET, for the respondent. (instructed by Solicitor for Public Prosecutions)

KEIFEL J: Yes, Mr Holdenson.

MR HOLDENSON: A convenient starting point on this application is the judgment of this Court in the case of the applicant’s co‑accused, the case of R v Nguyen 242 CLR 491 which is behind tab 1 in the joint folder of authorities. In that judgment, this Court held that there was a viable factual foundation for a verdict of guilty from the jury on the offence of manslaughter as an alternative to the count of murder on three bases: on the basis of extended common purpose; on the basis of concert and on the basis of aiding and abetting for the successful cross‑appellant Nguyen in that case. That is apparent from paragraphs 45 and 46 at page 503 of the report. In paragraph 45, your Honours will see in paragraph 45 it is said that:

The respondent submitted that the trial judge’s instructions precluded the jury from considering what were described as “viable and entirely apt alternative verdicts” on the charge of murder. Counsel for the respondent offered three examples of findings of fact which were open, and if made, would have led to a verdict of manslaughter –

Two lines below that “extended common purpose”; six lines below that “As to concert” and three lines below that “As to aiding and abetting”. It is in the next paragraph, in paragraph 46 that this Court held that:

Contrary to the prosecution’s submission in this Court, each of these conclusions was available to the jury. Again, the conclusions were not the only findings the jury could make, but they were open.

KIEFEL J: At paragraph 51 of that judgment, it is specifically stated that:-

Whether some different conclusion could or should be reached about substantial miscarriage of justice in the case of –

the applicant for special leave here –

is a question that was not addressed in argument and about which we express no opinion.

MR HOLDENSON: That is correct.

KIEFEL J: As I take it from your submissions, you say that there is nothing to distinguish in any material respect the position of the applicant here from the co‑accused, Quang.

MR HOLDENSON: At the end of the day, the analysis is equally applicable to this applicant. There are, however, two…

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: [2013] HCATrans 57
Decision Date

CaseChat Overview and Summary

The case of *Nguyen v The Queen* concerned an appeal to the High Court of Australia following a conviction for trafficking a commercial quantity of methylamphetamine. The appellant, Mr Nguyen, was found guilty by a jury in the District Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. The High Court then granted special leave to appeal.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of the appellant's prior convictions. Specifically, the court had to consider the application of section 97 of the *Evidence Act 1995* (NSW), which governs the admissibility of evidence of a person's previous representations or conduct, and the common law exclusionary rule concerning the admission of evidence of prior convictions. The court was required to determine if the evidence of prior convictions was relevant to an issue to be decided in the proceedings, and if so, whether its probative value outweighed the danger of unfair prejudice to the appellant.

Kiefel and Gageler JJ found that the evidence of the appellant's prior convictions was not admissible under section 97 of the *Evidence Act 1995* (NSW) because it was not relevant to any issue to be decided in the proceedings. Their Honours held that the evidence was introduced solely to demonstrate the appellant's propensity to commit the offence charged, which is impermissible under the exclusionary rule. The court emphasised that the admission of such evidence, particularly when it carries a significant risk of unfair prejudice, can lead to a miscarriage of justice.

Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders