Pham v The Queen - [2006] NSWCCA 3

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Pham v Regina [2006] NSWCCA 3

FILE NUMBER(S):
2005/2439

HEARING DATE(S): 23/01/2006

DECISION DATE: 23/01/2006
EX TEMPORE DATE: 23/01/2006

PARTIES:
Cuong Pham v Regina

JUDGMENT OF: McClellan CJ at CL Howie J Latham J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/0205

LOWER COURT JUDICIAL OFFICER: Sorby DCJ

COUNSEL:
G. Rowling - Crown
A. Leary - Applicant

SOLICITORS:
S. Kavanagh - Crown
A. Bilias - Applicant

CATCHWORDS:
Criminal Law - Separate trial application refused by trial judge - application for leave to appeal - whether joint trial would render unfair the trial of the applicant by reason of strength of Crown case against co-accused.

LEGISLATION CITED:
Criminal Appeal Act 1912 - s 5F
Drug Misuse and Trafficking Act 1900 - s 21(2)
Criminal Procedure Act 1986 - s 21 (2)

DECISION:
Application for leave to appeal is refused.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/2439
McCLELLAN CJ AT CL
HOWIE J
LATHAM J
MONDAY 23 JANUARY 2006

Cuong PHAM v Regina

Judgment

HOWIE J: This is an application pursuant to section 5F of the Criminal Appeal Act 1912 for leave to appeal against an interlocutory judgment of Sorby DCJ refusing an application for a separate trial. The applicant is to stand trial together with his co-accused, Van Quyen Nguyen, upon a charge that they knowingly took part in the cultivation of a commercial quantity of cannabis plants contrary to the provisions of s 25(2) of the Drug Misuse and Trafficking Act 1900.
The application for a separate trial was made under s 21(2) of the Criminal Procedure Act 1986, on the basis that the Crown case against the applicant was substantially different in character from that of the case against his co-accused. It was further argued that, if the trial were to proceed as a joint trial, the applicant would suffer extreme prejudice and embarrassment which could not be remedied by any direction or warning to the jury.
The submissions filed on behalf of the applicant were supplemented in oral argument by Mr Leary. The submissions today go further than the submissions made to the trial judge and it is suggested that it would be unfair for the applicant to have to stand trial with the co-offender by reason of the fact that the case against the applicant is almost non-existent and that there is a very good chance, so it is said, that the applicant would receive a verdict by direction at the end of the Crown case and that it would be unfair for him to be placed in jeopardy of a conviction because of the evidence against the co-offender that was not admissible against the applicant.
The charge arises from the cultivation of 414 cannabis plants grown hydroponically at 233 River Road Revesby. The premises at that address are a single story brick house with four bedrooms, a living room, kitchen, dining room and a detached rear garage. The plants were grown 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 Pham v The Queen

Details

AGLC: Pham v The Queen [2006] NSWCCA 3
Case: [2006] NSWCCA 3
Decision Date: 23 January 2006

CaseChat Overview and Summary

In the case of Pham v The Queen, the applicant, Pham, sought to appeal against the refusal of his application for a separate trial. The case involved serious criminal charges, and Pham was one of multiple co-accused. The trial judge had dismissed Pham's application for a separate trial, and Pham now sought leave to appeal this decision, arguing that a joint trial would result in an unfair trial for him due to the strength of the evidence against the other accused persons. The court had to determine whether the trial judge's decision to deny a separate trial was correct, and if Pham's appeal should be allowed.

The primary legal issue before the court was whether the trial judge had erred in refusing Pham's application for a separate trial. The court considered the principles of fairness in criminal trials, particularly in cases involving multiple accused persons, and the potential impact of a joint trial on Pham's right to a fair trial. The court also had to assess the strength of the evidence against the co-accused and how it might affect Pham's chances of receiving a fair trial in a joint proceeding.

The court found that the trial judge had not erred in refusing Pham's application for a separate trial. The court held that the trial judge had properly considered the relevant principles and factors, and had concluded that a joint trial would not render Pham's trial unfair. The court found that the evidence against the co-accused, while strong, did not necessarily prejudice Pham's case to the extent that a separate trial was required. The court further found that Pham had not demonstrated that a joint trial would result in a significant risk of unfairness that could not be mitigated by appropriate directions to the jury. The court held that the trial judge's decision was within the range of acceptable outcomes and that Pham's appeal should be dismissed.

Accordingly, the court dismissed Pham's application for leave to appeal and affirmed the trial judge's decision to refuse a separate trial. The court also ordered Pham to pay the costs of the appeal.

Orders