R v Dinh

Case [2000] NSWCCA 536 14 December 2000

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Reported Decision: 120 A Crim R 42

New South Wales

Court of Criminal Appeal

CITATION: R v Dinh [2000] NSWCCA 536

FILE NUMBER(S): CCA 60665/00

HEARING DATE(S): 29 November 2000

JUDGMENT DATE:
14 December 2000

PARTIES :

Crown - Respondent
David Duy Thai DINH - Applicant

JUDGMENT OF: Fitzgerald JA at 1; Simpson J at 5; Howie J at 5

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70059/99

LOWER COURT JUDICIAL
OFFICER : Dunford J

COUNSEL : R Hulme - Crown
David Duy Thai DINH - T Hoenig

SOLICITORS: S E O'Connor - Crown
D J Humphreys - Applicant Dinh

LEGISLATION CITED: Criminal Appeal Act 1912
Evidence Act 1995

CASES CITED:
Middis (SC NSW Hunt J 17 March 1991)
Baartman (NSWCCA 6 October 1994)
R v Fernando [1999] NSWCCA 66
R v Georgiou [1999] NSWCCA 125
R v Masters (1992) 26 NSWLR 450 at 146
R v Chai (1992) 27 NSWLR 153 at 191
R v Nguyen (CCA 23 September 1998)
R v Saunders (1994) 72 A Crim R 347
R v Van Phu Ho CCA(NSW) unreported, 18 July 1994
House v The King (1936) 55 CLR 499 at 504-505
Alexandroaia v R (1995) 81 A Crim R 286 at 290
R v Steffan (1993) 30 NSWLR 633
R v Matovski (1989) 15 NSWLR 720 at 723
R v Wright (1990) 90 Cr App R 315
R v Bilick and Starke (1984) 11 A Crim R 452 at 462
Tripodi v R (1961) 104 CLR 1 at 7
Harriman v R (1989) 167 CLR 590 at 630
Wilson v R (1970) 123 CLR 334

DECISION: Leave to appeal granted, appeal dismissed

IN THE COURT OF
CRIMINAL APPEAL

60665/00

FITZGERALD JA
SIMPSON J
HOWIE J

14 December 2000

REGINA v DINH
JUDGMENT

1    FITZGERALD JA: The circumstances giving rise to this application are set out in the reasons for judgment of the other members of the Court.
2    It is quite possible that the prosecution will adduce evidence against one of the applicant’s co-accused which is not admissible in his trial. A joint trial will place considerable responsibility on the prosecution and a heavy burden on the trial judge to ensure that evidence which is given in the presence of the jury is not impermissibly used against the applicant.
3    However, I am not persuaded that the order for a joint trial involved any error of principle or was not open to the judge who is to conduct the trial in the sound exercise of his Honour’s discretion. While it is obviously desirable that the applicant’s trial does not miscarry, that possibility cannot be entirely avoided. It would only complicate the trial for this Court to express opinions on the admissibility of particular parts of the evidence at this point which it might be suggested at the trial are binding on the trial judge. Nothing decided on the present application will in any way restrict the applicant’s appellate rights if he is convicted.
4    I agree with the…

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 Dinh

Details

AGLC: R v Dinh [2000] NSWCCA 536
Case: [2000] NSWCCA 536
Decision Date: 14 December 2000

CaseChat Overview and Summary

David Duy Thai Dinh appeals against an order for a joint trial with his co-accused, Phoung Canh Ngo and Tu Quang Dao. The Crown alleges that Ngo instigated and organised the killing of John Newman, a member of the New South Wales Parliament, that Dinh fired the shots and that Dao drove the vehicle which conveyed Dinh to Mr Newman’s home to carry out the murder. The appeal is dismissed. The order for a joint trial was made by Dunford J, following a motion by the Crown to revoke an earlier order for separate trials. The Crown sought to rely on evidence which was heard at an earlier trial of Ngo and Dao, which had not been available to the trial judge when the earlier order was made. The Court found that Dunford J was entitled to reconsider the question of a joint trial in light of the material available to him and that his decision to order a joint trial was not erroneous. The Court held that evidence of what occurred before 5 September 1994 was admissible to show the nature of the joint enterprise to which Dinh adhered, and that any potential prejudice to Dinh could be cured by appropriate directions to the jury.

Orders