R v Dang

Case [2001] NSWCCA 321 31 October 2001

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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 2001

PARTIES :

Regina
Hung Duc Dang

JUDGMENT 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 Baker

SOLICITORS: Kremner Townsend
S E O'Connor

CATCHWORDS: 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 6

DECISION: (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

WEDNESDAY 31ST OCTOBER 2001

Regina v Hung Duc DANG

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…

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 R v Dang

Details

AGLC: R v Dang [2001] NSWCCA 321
Case: [2001] NSWCCA 321
Decision Date: 31 October 2001

CaseChat Overview and Summary

The appellant, Dang, was convicted of manslaughter and other related offences following a robbery incident in which another individual was fatally stabbed. The case came before the court on appeal against both conviction and sentence. The central legal issues revolved around the sufficiency of the evidence to support the manslaughter conviction, the characterisation of the offence as part of a joint criminal enterprise, and the applicability of the defence of self-defence in relation to the use of a knife. Additionally, the court examined whether the sentence imposed was manifestly excessive.

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