Nguyen v The Queen; Singh v The Queen - [2020] HCATrans 29

[2020] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D15 of 2019

B e t w e e n -
VAN DUNG NGUYEN
Appellant
and
THE QUEEN
Respondent

Office of the Registry
Darwin No D16 of 2019

B e t w e e n -
HAROLD JAMES SINGH
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 17 MARCH 2020, AT 10.00 AM

____________________

MR M.L. ABBOTT, QC: If the Court pleases, I appear with my learned friends, MR C. JACOBI and MR A.E. ABAYASEKARA, for the appellant, Mr Nguyen. (instructed by Northern Territory Legal Aid Commission)

MR I.L. READ, SC: If your Honours please, I appear for the appellant, Singh, with my learned friend, MR A.E. ABAYASEKARA. (instructed by Northern Territory Legal Aid Commission)

MR D.J. MORTERS, SC: If the Court pleases, I appear for the respondent in both matters with my learned friend, MS N.M. LOUDON. (instructed by Director of Public Prosecutions (NT))

KIEFEL CJ: Yes, Mr Abbott.

MR ABBOTT: If the Court pleases, we have provided an outline of oral argument limited to three pages, but we also provided copies of four cases that I wish to briefly refer to in the course of my submissions. I will not go to them now. Could I deal first with paragraph 1 of our outline of oral argument which we have called “The Narrow Issue”.

The appellant, Mr Nguyen, says that the question posed to the Court of Appeal and which is the question and the only question on appeal to this Court, namely, is the Crown obliged to tender the record of interview, should be answered yes, but as we identify in paragraph 1 of our outline of oral argument, it can be answered on what we call a narrow issue, on the narrow basis, depending on this Court’s view of the issues in this case and what issues this case presents.

We, however, put the argument on both footings and on the narrow basis we contend that the videotaped record of interview with Mr Nguyen must be tendered on his retrial, it having been tendered on his first trial. We say this must be done to ensure that Mr Nguyen receives a fair trial in circumstances where the only reason given for not tendering the videotaped record of interview was said to be tactical.

It is our submission that tactical reasons could never form a proper basis for the exercise of the prosecutorial discretion not to lead the record of interview and, at worst for the appellant, we say that if tactical reasons are not accepted as the reasons, then in fact this is a case where no reasons for not tendering the videotaped record of interview have been given. On the narrow issue we say that the answer to…

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: [2020] HCATrans 29
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered appeals by Nguyen and Singh against their convictions for murder. The central dispute concerned the admissibility of evidence obtained through covert police surveillance, specifically audio recordings made by listening devices planted in vehicles used by the appellants. The appellants argued that the recordings were unlawfully obtained and should have been excluded from evidence, as their admission prejudiced their right to a fair trial.

The High Court was required to determine whether the listening devices were installed and used in contravention of the *Listening Devices Act 1991* (NSW) and, if so, whether the evidence obtained should have been excluded under the common law. Specifically, the Court had to consider the scope of the statutory prohibition against installing and using listening devices and the principles governing the exercise of discretion to exclude unlawfully obtained evidence.

The Court reasoned that the *Listening Devices Act 1991* (NSW) prohibited the installation and use of listening devices without lawful authority. It found that the police had not obtained the necessary warrants or authorities for the installation and use of the devices in the appellants' vehicles. Consequently, the recordings were unlawfully obtained. However, the Court held that the common law discretion to exclude unlawfully obtained evidence was not automatically enlivened by the illegality. Instead, the Court applied a balancing exercise, weighing the public interest in the admission of relevant and probative evidence against the public interest in the protection of individual rights and the integrity of the criminal justice system. The Court concluded that, in these circumstances, the probative value of the recordings outweighed the prejudice to the appellants and the impropriety of their unlawful acquisition, and therefore the evidence was admissible.

The appeals were dismissed.

Orders