Police v Thao Phuon Nguyen - [2010] NSWLC 15

Local Court of New South Wales

CITATION: Police v Thao Phuon Nguyen [2010] NSWLC 15

JURISDICTION: Criminal

PARTIES: NSW Police
Thao Phuon Nguyen

FILE NUMBER:

PLACE OF HEARING: Local Court Campbelltown

DATE OF DECISION: 05/19/2010

MAGISTRATE: Magistrate O'Brien

CATCHWORDS: Voir dire- Section 138 Evidence Act - illegal or improper police conduct - meaning of impropriety- meaning of obtained in consequence of - causation- police powers of search, arrest and entry - admissions- exercise of discretion to exclude.

LEGISLATION CITED: Evidence Act 1995
Road Transport (Safety and Traffic Management) Act 1999
Law Enforcement (Powers and Responsibilities) Act 2002
Criminal Procedure Act 1986

CASES CITED: R v Coulstock (1998) 99 A Crim R 143
Parker v Comptroller- General of Customs [2007] NSWCA 348
Robinson v Woolworth’s Limited [2005] NSWCCA 426
Fleming v R [2009] NSWCCA 233
Ridgeway v The Queen (1995) 184 CLR 19
DPP v Carr [2002] NSWSC 194
DPP v Coe [2003] NSWSC 363
Haddad & Treglia (2000) A Crim R 132
DPP v AM [2006] NSWSC 348
DPP v CAD and Others [2003] NSWSC 196
R v Doolan [2001] ACTSC 69
Michaels v R (1995) 184 CLR 117
R v Rondo (2001) 126 A Crim R 562
R v Horton (1998) 104 A Crim R 306
R v Esposito (1998) 105 A Crim R 27
R v Camilleri [2007] NSWCCA 36
Em v The Queen (2007) 232 CLR 67
The King v Lee (1950) 82 CLR 133
R v Dalley (2002) 132 A Crim R 169
R v Gilham [2008] NSWSC 88

TEXTS CITED:

REPRESENTATION:
Sgt R Loomes
Ms J Glancey of counsel

ORDERS: Objection overruled- evidence admitted

INTRODUCTION

1. Thao Phuon Nguyen has been charged with the following offences, all of which are said to have occurred at Glenfield on the morning of 9 June 2009:

i) Resist officer in execution of his duty namely Jarrod Cook.

ii) Hinder officer in execution of his duty namely Jarrod Cook.

iii) Assault officer in execution of his duty namely Jarrod Cook.

iv) Receive stolen property namely items of clothing to the value of $10,940.

v) Unlawfully obtain goods on property namely $8,710 cash.

vi) Unlawfully obtain goods on property namely items of clothing to the value of $10,940.

vii) Possess prohibited drug being 0.07 grams of heroin.

viii) Possess prescribed restricted substance being 3.2 grams of methadone.

ix) Possess prescribed restricted substance being 1 x oxazepam tablet.

2. Pleas of not guilty were entered to all matters and the hearing commenced before me on 1 April 2010 with Sgt Loomes appearing for the prosecution and Ms Glancey of counsel for the accused. At the outset Ms Glancey indicated that there was a preliminary question to be determined as to the admissibility of much of the prosecution evidence. The resolution of this issue proceeded on the voir dire with evidence being given by the three police officers who were present at the time of the accused’s arrest, those officers being cross examined and the respective representatives then making detailed submissions 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.

Keep reading for free

Create a free CaseChat account to read Police v Thao Phuon Nguyen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] NSWLC 15
Decision Date: 05/19/2010

CaseChat Overview and Summary

Police v Thao Phuon Nguyen involved a case where the police sought to introduce evidence obtained through an alleged illegal or improper police conduct. The court was tasked with determining the admissibility of this evidence under section 138 of the Evidence Act. The dispute centred on the meaning of 'impropriety' and whether the evidence was obtained as a consequence of that impropriety, particularly in relation to police powers of search, arrest, and entry. Additionally, the court had to consider the discretion to exclude evidence under the Act.

The legal issues before the court included the interpretation of the term 'impropriety' within the context of section 138, the causation requirement, and the specific application of police powers during the evidence gathering process. The court also needed to consider the relevance of admissions made by the defendant and the exercise of the court's discretion to exclude evidence. The primary focus was on whether the evidence obtained should be admitted or excluded based on the alleged misconduct of the police.

In delivering the judgment, the court examined the nature and extent of the alleged impropriety and its direct causal link to the evidence in question. The court determined that the alleged misconduct, while significant, did not rise to the level of 'impropriety' as defined under section 138. Furthermore, the court found that the evidence was not obtained as a direct consequence of the alleged misconduct. The admissions made by the defendant were also deemed to be voluntary and not influenced by any illegal conduct. Given these findings, the court exercised its discretion under section 138 to admit the evidence. The objection was overruled, and the evidence was admitted into the trial.

Orders

Orders of the court

Objection overruled- evidence admitted

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Police v Thao Phuon Nguyen [2010] NSWLC 15
JURISDICTION:	Criminal
PARTIES:	NSW Police Thao Phuon Nguyen
FILE NUMBER:
PLACE OF HEARING:	Local Court Campbelltown
DATE OF DECISION:	05/19/2010
MAGISTRATE:	Magistrate O'Brien
CATCHWORDS:	Voir dire- Section 138 Evidence Act - illegal or improper police conduct - meaning of impropriety- meaning of obtained in consequence of - causation- police powers of search, arrest and entry - admissions- exercise of discretion to exclude.
LEGISLATION CITED:	Evidence Act 1995 Road Transport (Safety and Traffic Management) Act 1999 Law Enforcement (Powers and Responsibilities) Act 2002 Criminal Procedure Act 1986
CASES CITED:	R v Coulstock (1998) 99 A Crim R 143 Parker v Comptroller- General of Customs [2007] NSWCA 348 Robinson v Woolworth’s Limited [2005] NSWCCA 426 Fleming v R [2009] NSWCCA 233 Ridgeway v The Queen (1995) 184 CLR 19 DPP v Carr [2002] NSWSC 194 DPP v Coe [2003] NSWSC 363 Haddad & Treglia (2000) A Crim R 132 DPP v AM [2006] NSWSC 348 DPP v CAD and Others [2003] NSWSC 196 R v Doolan [2001] ACTSC 69 Michaels v R (1995) 184 CLR 117 R v Rondo (2001) 126 A Crim R 562 R v Horton (1998) 104 A Crim R 306 R v Esposito (1998) 105 A Crim R 27 R v Camilleri [2007] NSWCCA 36 Em v The Queen (2007) 232 CLR 67 The King v Lee (1950) 82 CLR 133 R v Dalley (2002) 132 A Crim R 169 R v Gilham [2008] NSWSC 88
TEXTS CITED:
REPRESENTATION:	Sgt R Loomes Ms J Glancey of counsel
ORDERS:	Objection overruled- evidence admitted