CITATION: R v Hung Duc Dang [2001] NSWCCA 321 FILE NUMBER(S): CCA 60035/2001 HEARING DATE(S): 21 August 2001 JUDGMENT DATE:
31 October 2001PARTIES :
Regina
Hung Duc DangJUDGMENT OF: Beazley JA at 1; Wood CJ at CL at 2; Carruthers AJ at 62
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S) : 70214/99 LOWER COURT JUDICIAL
OFFICER :Bruce James J
COUNSEL : S J Odgers SC
R D Cogswell SC with Ms B BakerSOLICITORS: Kremner Townsend
S E O'ConnorCATCHWORDS: CRIMINAL LAW - appeals - appeal against conviction - appeal against sentence - manslaughter - robbery in company - use of offensive weapon to prevent lawful apprehension - whether conviction supported by the evidence - whether murder part of joint criminal enterprise - whether use of knife other than in self defence was in the contemplation of the appellant - no miscarriage of justice - whether sentence manifestly excessive. LEGISLATION CITED: Crimes Act 1900 ss 19A, 33B, 97(1)
Criminal Appeal Act 1912 s 6DECISION: (1) Appeal against conviction dismissed. ; (2) Leave to appeal sentence granted, but appeal dismissed.; (3) Conviction and sentence below confirmed.
IN THE COURT OF
CRIMINAL APPEAL
No. 60035 of 2001
BEAZLEY JA
WOOD CJ at CL
CARRUTHERS AJ
The appellant was indicted on one charge of murder (s 19A Crimes Act 1900), robbery in company (s 97(1) Crimes Act 1900), and use of an offensive weapon to prevent lawful apprehension (s 33B Crimes Act 1900). The appellant pleaded guilty to the second and third counts and not guilty to the count of murder. Following a trial by jury the appellant was found not guilty of murder, but guilty of manslaughter. He was sentenced to concurrent fixed terms of two and two and a half years respectively for the first two counts and a cumulative sentence of seven and a half years for the offence of manslaughter.
It was the Crown case that the principal and appellant had embarked upon a joint criminal enterprise to rob someone, and that the appellant was guilty of manslaughter by reason of the principles applicable to extended criminal enterprise (common purpose) when following their commission of such a robbery his co-offender killed a would-be pursuer). The evidence showed in this regard that both the appellant and the principal carried knives. After committing the robbery they were pursued from the scene by bystanders to the robbery. Shortly after separating but while still being pursued the principal stabbed the victim who was attempting to detain him. In the meantime the appellant drew his knife and wounded one member of the group who had followed him.
The appellant appeals against the conviction on the basis that it was not capable of being supported by the evidence and the jury should have had a reasonable doubt as to whether: (1) the killing occurred at a time when the joint enterprise to rob was still on foot, or whether it…
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- AGLC
- R v Dang [2001] NSWCCA 321
- Case
- [2001] NSWCCA 321
- Decision Date
CaseChat Overview and Summary
In addressing these issues, the court found that the evidence was sufficient to uphold the conviction for manslaughter. The court held that the use of the knife was not in self-defence but was instead part of the joint criminal enterprise. The court concluded that the appellant’s participation in the robbery, along with the use of an offensive weapon, was within the scope of the criminal enterprise. Consequently, the appeal against conviction was dismissed. Regarding the sentence, the court found that while the offence was serious, the sentence was not manifestly excessive, and the appeal against sentence was also dismissed.
The court's decision was grounded in a comprehensive analysis of the evidence and the legal principles applicable to joint criminal enterprises and the use of offensive weapons. The court was satisfied that the evidence justified the conviction and that the sentence, though severe, was proportionate to the gravity of the offence. The final orders of the court were to dismiss both the appeal against conviction and the appeal against sentence, thereby upholding the original judgment of the lower court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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