Nguyen v The Queen - [2008] HCATrans 410

[2008] HCATrans 410

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M51 of 2008

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

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 5 DECEMBER 2008, AT 12.19 PM

MR C.B. BOYCE: If it please the Court, I appear on behalf of the applicant with my learned friend, MR M.J. CROUCHER. (instructed by Valos Black & Associates)

MR J.D. McARDLE, QC: If the Court pleases, I appear with my learned friend, MR D.A. TRAPNELL, SC, for the respondent in this application. (instructed by Director of Public Prosecutions (Vic))

HAYNE J: Yes, Mr Boyce.

MR BOYCE: Your Honours, this case, in our submission, raises directly for consideration whether and in what form there need be a factual connection, call it causative or otherwise, between the acts of a secondary party who is an aider and abettor and the act of a principal. We say that it is a vexed question, your Honours, because in some it is a question as to whether aiding and abetting that particular form of complicity is a form of inchoate offending or otherwise.

We use the term “inchoate offending” advisedly because it would seem, at least from Mr Croucher’s and my researches, that the Law Commission of England and Wales in its report 300 of 2006, working on the basis that at common law there must be a material connection between the acts of an aider and abettor and those of a principal recommend to fill the void, or a void that the Law Commission finds exists, the creation of a species of inchoate offending known as encouraging or assisting crime.

In the present case, the act of aiding and abetting was the applicant’s presence at the scene and the provision of a car to assailants at the time the crime was committed. There was evidence, obviously enough, of the applicant’s involvement in crime prior to that point in time, and there was evidence of his involvement post. That evidence was admissible against the applicant in proof of his at least intent at the time of his aiding and abetting, but that evidence was, it is submitted, not evidence of acts of aiding and abetting.

The learned trial judge in his reasons for sentence summarised rather succinctly, in our submission, at application book No 4, at application book page 1836, what exactly it was that the applicant had done to aid and abet the principals in the commission of crime. At line 3 on application book 1836 the learned sentencing judge said as follows:

The prosecution said, and it was not disputed, that the verdict of guilty meant that the jury was satisfied that you were present in your car in the vicinity of James Huynh at the time that one or more of the principals in…

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 [2008] HCATrans 410
Case: [2008] HCATrans 410
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 in a commercial quantity of methylamphetamine. The appellant, Mr Nguyen, had been found guilty in the District Court of New South Wales and his conviction was subsequently upheld by the Court of Criminal Appeal of New South Wales.

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 appeal questioned whether the prejudicial effect of this evidence outweighed its probative value, and whether the jury directions provided were sufficient to mitigate any potential prejudice.

The High Court, comprising Hayne and Kiefel JJ, considered the principles governing the admission of evidence of prior convictions under the Uniform Evidence Law. Their Honours noted that such evidence is generally inadmissible unless it has significant probative value in relation to a fact in issue, beyond merely suggesting a propensity to commit the offence charged. The Court examined the specific circumstances of the case, including the nature of the prior convictions and the way in which the evidence was presented to the jury. They concluded that the trial judge had not erred in admitting the evidence, finding that its probative value was sufficient to justify its admission, and that the directions given to the jury adequately addressed the risk of prejudice.

The appeal was therefore dismissed.

Orders