R v Duong - [2000] QSC 266

SUPREME COURT OF QUEENSLAND

CITATION: R v Duong and Anor [2000] QSC 266

PARTIES: THE QUEEN
v
DIEN CONG DUONG and
DUNG NGOC NUGYEN

FILE NO: 93 of 2000

DIVISION: Trial Division

DELIVERED ON: 27 October 2000

DELIVERED AT: Brisbane

HEARING DATE: 27 September 2000

JUDGE: Mackenzie J

ORDER: 1. The application of Dien Cong Duong for a separate trial is refused.
2. That Dung Ngoc Nguyen be tried separately from the other accused on the indictment before the court.

CATCHWORDS:
CRIMINAL LAW – JOINT OFFENDERS – MURDER – Application for separate trial – different acts alleged in co-accused's records of interviews – record of interview interpreted from Vietnamese – risk of positive injustice.

The Queen v Darby (1981-1982) 148 CLR 668
R v Davidson [2000] QCA 39
Farrell & Cotton (1990) 48 A CrimR 311
R v Harbach (1973) 6 SASR 427 at 433
R v Lewis & Baira [1996] QCA 405
Patsalis & Spathis (No 1) (1999) 107 A CrimR 432
Pernich and Maxwell (1991) 55 A CrimR 464
Piller Kramer Kramer & Edwards (1995) 86 A CrimR 249
Webb v The Queen (1994) 181 CLR 41

COUNSEL: P Smid for the Crown
G McGuire for the accused Duong
D Lynch for the accused Nguyen

SOLICITORS: Queensland Director of Public Prosecutions for the Crown
Ryan & Bosscher for the accused Duong
Legal Aid Queensland for the accused Nguyen

MACKENZIE J: Each accused person has applied for a separate trial. They, together with Tam Chi Ngo and Vinh Chi Pham are indicted for the murder of one Luan Minh Nguyen whose body was found in a quarry in the Collingwood Park area. The deceased is also referred to in places in the records of interview as Tony Heal or as Hieu. There are two other people, Dung Lam Quoc and Lam Thanh Bui, referred to in the records of interview in relation to events at the scene, but they are not indicted. Dung Ngoc Nguyen is referred to as "old Dung" and the other Dung as "young Dung" at times in the records of interview. Neither Tam Chi Ngo or Vinh Chi Pham have applied for a separate trial.

The Law

In Webb v The Queen (1994) 181 CLR 41, 88-89, Toohey J with whom Mason CJ and McHugh J agreed, described the basis of the application for a separate trial in that case as being that the other accused had made allegations in a record of interview that the appellant had engaged in a violent and sadistic attack on the deceased, and that the warning that the evidence was not admissible against the appellant could not cure the prejudice caused against him. Toohey J continued:

"King CJ dealt with this ground by pointing out that there are 'strong reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together. That is particularly so where each seeks to cast the blame on the other', ((1992) 59 SASR at 585). What King…

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 Duong

Details

AGLC: R v Duong [2000] QSC 266
Case: [2000] QSC 266
Decision Date: 27 October 2000

CaseChat Overview and Summary

The appellant, Dien Cong Duong, sought a separate trial from the other accused in the matter of murder and related charges. The application was made on the basis that there were significant discrepancies in the records of interviews between the co-accused and the differing acts alleged against them. One of the co-accused's records of interview had been interpreted from Vietnamese, raising concerns about the risk of positive injustice.

The court had to determine whether there was sufficient evidence to warrant a separate trial for Duong, considering the differences in the acts alleged against him and the other accused. The court also had to consider whether the risk of positive injustice, due to the interpreted record of interview, was sufficient to warrant a separate trial.

The court found that the discrepancies in the records of interviews were not significant enough to warrant a separate trial for Duong. The court found that the risk of positive injustice was also not sufficient to warrant a separate trial for Duong. However, the court found that there was sufficient evidence to warrant a separate trial for Dung Ngoc Nguyen, one of the other accused. The court found that the evidence against Nguyen was significantly different to that against the other accused, and that a separate trial would be in the interests of justice.

The court dismissed the application for a separate trial for Duong. The court ordered that Dung Ngoc Nguyen be tried separately from the other accused on the indictment before the court.

Orders

Orders of the court

1. The application of Dien Cong Duong for a separate trial is refused.

2. That Dung Ngoc Nguyen be tried separately from the other accused on the indictment before the court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Duong and Anor [2000] QSC 266
PARTIES:	THE QUEEN v DIEN CONG DUONG and DUNG NGOC NUGYEN
FILE NO:	93 of 2000
DIVISION:	Trial Division
DELIVERED ON:	27 October 2000
DELIVERED AT:	Brisbane
HEARING DATE:	27 September 2000
JUDGE:	Mackenzie J
ORDER:	1. The application of Dien Cong Duong for a separate trial is refused. 2. That Dung Ngoc Nguyen be tried separately from the other accused on the indictment before the court.
CATCHWORDS:	CRIMINAL LAW – JOINT OFFENDERS – MURDER – Application for separate trial – different acts alleged in co-accused's records of interviews – record of interview interpreted from Vietnamese – risk of positive injustice. The Queen v Darby (1981-1982) 148 CLR 668 R v Davidson [2000] QCA 39 Farrell & Cotton (1990) 48 A CrimR 311 R v Harbach (1973) 6 SASR 427 at 433 R v Lewis & Baira [1996] QCA 405 Patsalis & Spathis (No 1) (1999) 107 A CrimR 432 Pernich and Maxwell (1991) 55 A CrimR 464 Piller Kramer Kramer & Edwards (1995) 86 A CrimR 249 Webb v The Queen (1994) 181 CLR 41
COUNSEL:	P Smid for the Crown G McGuire for the accused Duong D Lynch for the accused Nguyen
SOLICITORS:	Queensland Director of Public Prosecutions for the Crown Ryan & Bosscher for the accused Duong Legal Aid Queensland for the accused Nguyen