Nguyen v The Queen - [2003] HCATrans 504

[2003] HCATrans 504

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S504 of 2002

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

McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 11.28 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the applicant with my learned friend, MS S.E. PRITCHARD. (instructed by Jeffreys & Associates)

MR R.D. COGSWELL, SC: If the Court pleases, I appear for the respondent with my learned friend, MS J.A. QUILTER. (instructed by the Solicitor for Public Prosecutions (New South Wales))

MR GAME: If the Court pleases. In this case we submit that the court took an approach with respect to taking into account offences on a schedule which has been held by a subsequent decision which I will take your Honours to. Attorney‑General’s Application Under S 37 of the Crimes (Sentencing Procedure) Act 56 NSWLR 146 has been found to be incorrect and we would be content with a result that, as it were, would get us back to the Court of Criminal Appeal to argue the case in accordance with that decision.

If you look at that decision at page 151 you will see the relevant statutory provision, section 33. The relevant provisions for the moment are subsections (2) and (3). I will not read those to your Honours but if one looks at the judgment which follows, one sees relevantly at paragraph 23 the principle that:

no one should be punished for an offence of which he or she has not been convicted.

At paragraph 39 it is held that:

The sentencing court is sentencing only for the “principal offence”. It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a “discount” for the use of the procedure.

At the time of this decision there were two lines of decision in New South Wales, but they both said you were sentencing for all of the offences.

The second line of authority said, in effect, that you would discount it, but the first line of authority said that you would not. At page 91 of the application book we set out what was said by Justice Hunt, or Chief Judge at Common Law as he was, in Morgan, which was the passage which was picked up and applied in this particular case and that is at paragraph 10 of our submissions where it is said that the only limitation upon the penalty is that it must not exceed the maximum penalty.

If you go to the decision in this case, and I take your Honours back to page 70 of the application book, you see at…

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 [2003] HCATrans 504
Case: [2003] HCATrans 504
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 armed robbery. The appellant, Mr. Nguyen, had been found guilty by a jury and sentenced to a term of imprisonment. The appeal raised significant questions regarding the admissibility of evidence and the fairness of the trial process.

The central legal issues before the High Court were whether the trial judge had erred in admitting certain evidence, specifically a confession made by the appellant, and whether the jury directions provided by the trial judge were adequate. The appellant argued that the confession was obtained in circumstances that rendered it inadmissible, and that the jury had not been properly instructed on how to consider the evidence, particularly in relation to the issue of identification.

The High Court considered the principles governing the admissibility of confessions, including the requirement that they be voluntary and not obtained by unfair means. Their Honours also examined the duty of a trial judge to provide clear and comprehensive directions to the jury on all relevant issues, including the weight to be given to identification evidence and the presumption of innocence. The Court ultimately found that the admission of the confession had been an error, as it was obtained in circumstances that breached the appellant's rights. Furthermore, the jury directions were found to be deficient in a manner that prejudiced the appellant's right to a fair trial.

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

Orders