R v Duong - [2024] NSWDC 470

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Duong [2024] NSWDC 470
Hearing dates: 13 June 2024
Date of orders: 13 June 2024
Decision date: 24 June 2024
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Crown application granted to adduce evidence of self-harm as consciousness of guilt of accused

Catchwords:
Evidence; post-offence conduct; self-harm; consciousness of guilt

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Evidence Act (NSW) 1995

Cases Cited:
IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112
R v XY [2013] NSWCCA 121
RH v R [2011] NSWCCA 98
R v Cook [2004] NSWCCA 52

Category: Procedural rulings
Parties: Tri Duong (the Accused)
Director of Public Prosecutions (the Crown)
Representation:
Counsel:
Mr M Clarke (the Crown)
Solicitors:
Mr A Tiedt (the Accused)
Ms A Degnan (the Crown)

File Number(s): 2020/00333653
Publication restriction: s15A of the Children (Criminal Proceedings) Act 1987 prohibits the publication of the name of the complainant
Decision under appeal

File Number(s):

2020/00333653

JUDGMENT on crown application for advanced ruling

Introduction

Prior to empanelment of the jury in this trial the Crown sought an advanced ruling in accordance with s192A of the Evidence Act (NSW) 1995 (“EA”).
The accused is charged with 12 principal Counts on the Indictment comprising five charges of indecent assault (Counts 1, 2, 3, 7 and 9), six charges of sexual assault on a child (Counts 4, 5, 6, 8, 10 and 11) and one charge of maintaining an unlawful sexual relationship with a child under the age of 16 (Count 12). In addition, there are three alternative counts to Count 12 each of which allege the accused had sexual intercourse with a child under the age of 16 years.
The Crown application concerns evidence that establishes that on 9 October 2009, following disclosure by the complainant JG, the step-daughter of the accused, to her mother of sexual misconduct by the accused towards her, the complainant’s mother confronted the accused about the complaint. The accused denied the allegation of sexual misconduct but thereafter attempted suicide by consuming 29x30mg Mirtazapine tables. Mirtazapine is a prescription anti-depressant drug.

The evidence

The evidence the Crown relies on is contained substantially in Exhibit A on the voir dire which comprised the following statements:-

Statement of JG dated 15 August 2019

Statement MN dated 27 September 2019

Notes of conference with MN dated 15 February 2024

Statement of PN dated 9 March 2019

Statement of KN dated 27 April 2019

Frankston Hospital medical records concerning the accused’s admission on 10 October 2009

Dandenong MHA assessment notes

The relevant evidence may be paraphrased as follows. In the complainant's statement at [52] to [59] she outlined that in 2009 her aunt and sister had discovered messages on the accused’s phone concerning him being unfaithful to his wife, the complainant's mother. The complainant called her mother on the evening of 9 October 2009 and disclosed that the accused had been “sexually abusing”…

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 [2024] NSWDC 470
Case: [2024] NSWDC 470
Decision Date: 24 June 2024

CaseChat Overview and Summary

The case of R v Duong involved the accused, Duong, who was facing criminal charges. The nature of the dispute was the admissibility of certain post-offence conduct evidence, specifically Duong's self-harm, which the prosecution sought to introduce as evidence of consciousness of guilt. The case was heard in the County Court of Victoria.

The central legal issue before the court was whether evidence of self-harm, which occurred after the commission of the alleged offence, could be considered by the jury as an indicator of the accused's consciousness of guilt. The court had to balance the relevance and probative value of such evidence against the potential for unfair prejudice and misleading the jury. The court also considered the established principles of evidence law, including the rules regarding the admissibility of similar fact evidence.

In its reasoning, the court found that the evidence of self-harm was indeed relevant and probative of consciousness of guilt. The court held that the act of self-harm, occurring in the aftermath of the offence, could be indicative of the accused's state of mind at the time of the offence, and thus relevant to the issue of guilt. The court considered the circumstances of the self-harm and determined that it did not unduly prejudice the accused or mislead the jury. Consequently, the court granted the Crown's application to admit the evidence of self-harm as consciousness of guilt of the accused. The final orders of the court were that the evidence of self-harm could be adduced by the prosecution in the trial.

Orders

Orders of the court

Crown application granted to adduce evidence of self-harm as consciousness of guilt of accused

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.

Medium Neutral Citation:	R v Duong [2024] NSWDC 470
Hearing dates:	13 June 2024
Date of orders:	13 June 2024
Decision date:	24 June 2024
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Crown application granted to adduce evidence of self-harm as consciousness of guilt of accused
Catchwords:	Evidence; post-offence conduct; self-harm; consciousness of guilt
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Evidence Act (NSW) 1995
Cases Cited:	IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 R v Shamouil (2006) 66 NSWLR 228; [2006] NSWCCA 112 R v XY [2013] NSWCCA 121 RH v R [2011] NSWCCA 98 R v Cook [2004] NSWCCA 52
Category:	Procedural rulings
Parties:	Tri Duong (the Accused) Director of Public Prosecutions (the Crown)
Representation:	Counsel: Mr M Clarke (the Crown) Solicitors: Mr A Tiedt (the Accused) Ms A Degnan (the Crown)
File Number(s):	2020/00333653
Publication restriction:	s15A of the Children (Criminal Proceedings) Act 1987 prohibits the publication of the name of the complainant
Decision under appeal	File Number(s): 2020/00333653