R v Dao - [2005] VSCA 196

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 360 of 2003

THE QUEEN
	v.
LAN NGOC DAO

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JUDGES:	BUCHANAN and VINCENT, JJ.A. and BYRNE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 May 2005
DATE OF JUDGMENT:	12 August 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 196

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Criminal law – Conviction – Procedure – Trial – Charge to jury – Duty of trial judge – Failure to summarize the evidence – Failure to summarize arguments of counsel – Whether trial miscarried.

Criminal law – Sentence – Parity.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Slades & Parsons

THE COURT:

The applicant, Lan Ngoc Dao, seeks leave to appeal against conviction and sentence. He was presented for trial in the County Court on a charge for trafficking in heroin at Sunshine and other places within the State between 22 November 2000 and 11 March 2001. He was, on 18 November 2003, found guilty by the jury and on 18 December 2003 sentenced to six-and-a-half years imprisonment with a non-parole period of four-and-a-half years.

The proposed grounds of appeal against conviction are as follows:

“1.The Learned Trial Judge erred in that he failed to put the defence case in his charge to the jury sufficiently or at all.
2.The Learned Trial Judge erred in his directions to the jury in that he failed to summarise and remind the jury of the evidence in the case of both Crown and Defence but in particular the evidence given by and on behalf of the Applicant as well as the cross-examination by the Applicant’s counsel of the prosecution witnesses.
3.The Learned Trial Judge erred in that in his charge to the jury he failed to summarise sufficiently or at all the arguments put in aid of the defence case.
4.The Learned Trial Judge erred in his directions to the jury in not explaining to the jury how the relevant law applied to the facts of the case.
5.The Learned Trial Judge erred in that he gave insufficient directions to the jury on the effect in the case of the Applicant’s evidence and on the method or approach to be taken in the evaluation of that evidence.”

The trial was conducted before his Honour Judge Hart over eight-and-a-half days. [1] On the ninth day, commencing at about 2.20 pm, counsel for the Crown and for defence addressed the jury. At the commencement the tenth day his Honour commenced his charge, and at 10.53 am the jury retired to consider its verdict. The jury had certain questions regarding the evidence and, having received answers, they retired again at 12.46 pm. The verdict of guilty was returned at 2.17 pm.
[1]5, 6, 7 (half day) 10, 11, 12, 13, 14, 17 November 2003

It will be seen from this brief summary that the closing stages of the trial were completed in a remarkably short time. In terms of the transcript,…

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 Dao

Details

AGLC: R v Dao [2005] VSCA 196
Case: [2005] VSCA 196
Decision Date: 12 August 2005

CaseChat Overview and Summary

In the case of R v Dao, the appellant was convicted of various drug-related offences and appealed against his conviction, arguing that the trial miscarried due to the trial judge's failure to adequately summarise the evidence and arguments of counsel to the jury. The Court of Appeal was required to determine whether the trial had indeed miscarried and, if so, whether this would lead to the appellant's convictions being quashed. The court also needed to consider the appropriate sentence to be imposed on the appellant.

The court found that the trial judge had indeed failed in his duty to summarise the evidence and arguments, which had resulted in a miscarriage of justice. The court held that the trial judge's omissions had deprived the jury of a full and fair consideration of the case, and that this constituted a miscarriage of justice. The court further held that, in light of the miscarriage of justice, the appellant's convictions should be quashed. The court then went on to consider the appropriate sentence to be imposed on the appellant. The court found that the sentence imposed by the trial judge was appropriate and should be upheld.

The court quashed the appellant's convictions and ordered a retrial. The court upheld the sentence imposed by the trial judge, finding it to be appropriate.

Orders