R v Dang

[1996] QCA 485

IN THE COURT OF APPEAL	[1996] QCA 485
SUPREME COURT OF QUEENSLAND

C.A. No. 260 of 1996.

Brisbane

[R v. Van Dang]

T H E Q U E E N

v.

VAN DANG

(Applicant) Appellant

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Pincus J.A.
Lee J.

Fryberg J.

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Judgment delivered 3 December 1996

Judgment of the Court

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APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED.

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CATCHWORDS: Criminal law - intervention of judge in trial - no unfairness -

misdirection as to absence of witness.

Counsel:	Mrs L Clare for the Crown. Mr A Rafter for the applicant/appellant.
Solicitors:	Queensland Director of Public Prosecutions for the Crown. Legal Aid Office of Qld for the applicant/appellant.
Hearing date:	20 September 1996.
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 3 December 1996

This is an appeal against conviction and an application for leave to appeal against sentence. The notice of appeal on its face challenges a conviction of escaping from lawful custody as well as two other convictions, one of receiving and one of attempted false pretences. It appears, however, that the appellant’s real intention was to appeal only against the conviction for escaping; the grounds of appeal and the argument on appeal are directed to that only - not surprisingly, since the appellant pleaded guilty to the other offences.

The first ground of appeal is that the judge intervened excessively in the trial. This was not pressed. It seems to us likely that the judge thought the defence was simply humbug, and that his Honour asked a number of questions of witnesses; more generally, his Honour intervened at the trial more than is usual. But there is no reason to think that his Honour’s activity resulted in the trial being unfair.

The second ground of appeal complains of a misdirection in that his Honour invited the jury to treat the absence of one of the witnesses, Nguyen Khan Pham, from the court as evidence against the appellant. The record shows that the judge told the jury that that witness "said he did not know that this case was on and he said that he had been fishing from Sunday till Thursday morning". Later, apparently in response to a complaint about the remark to which we have just referred, his Honour told the jury, quite emphatically, to disregard what he had said on the point. There is nothing in this ground of appeal. We would remark that it is comforting to note that at a time when legal aid funds are said to be desperately short, not only was the trial able to be run with legal aid funds from 7 to 16 May, but an appeal, brought on grounds having no substance whatever, was made against the conviction.

As to sentence, the Crown case, which was accepted by the jury, was that the appellant escaped from custody in a holding cell at the Magistrates Court by a deception; he pretended to be someone else, namely Nguyen Khan Pham, mentioned above. But he was found later on the same day and brought back. The judge sentenced him to 6 months imprisonment cumulatively upon sentences which the appellant was then serving.

Complaint is also made of the sentences imposed in respect of the two other offences we have mentioned above, receiving and attempted false pretences. The circumstances were that the appellant tried to sell a video cassette recorder and a television set which had been stolen (earlier on the same day) and which he claimed to have owned for a long time. For the receiving charge the judge imposed 3 months imprisonment and for the attempted false pretences the same period of imprisonment. His Honour ordered that these three sentences - the 6 months for escaping and the other two sentences - be concurrent with each other.

The appellant has a substantial criminal history, mainly involving drug offences. His recent history was that he was convicted of drug offences in January 1996 and sentenced to 2 years and 6 months imprisonment, and then in February 1996 was convicted of an offence of false pretences and sentenced to 3 months imprisonment cumulatively upon the earlier sentence. The additional 6 months imprisonment does not appear to us excessive, particularly having regard to the fact that the judge deferred the appellant’s parole date rather briefly, from 5 January 1997 to 28 February 1997.

The appeal against conviction is dismissed and the application for leave to appeal against sentence is refused.