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R v Hoang

R v Hoang

Case [2007] VSCA 117 7 June 2007

Appeal

Miscarriage of Justice

Legal Representation

Course of Conduct

Unanimity of Jury Verdict

Misdirection of Jury

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 376 of 2005

THE QUEEN
	v
LOC TIEN HOANG

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JUDGES:	MAXWELL P, EAMES and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 March 2007
DATE OF JUDGMENT:	7 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 117

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CRIMINAL LAW – Application for leave to appeal against conviction – Stalking – Whether failure of trial Judge to make an order for legal aid under Crimes Act 1958, s 360A caused a miscarriage of justice – Whether lack of legal representation at trial resulted in a miscarriage of justice – Whether behaviour of applicant amounted to a “course of conduct” under Crimes Act 1958, s 21A – Whether objective or subjective intention required under s 21A(3) of the Crimes Act 1958 – Whether judge should have directed the jury that they must be unanimous as to the particular acts which constituted the “course of conduct” – Whether the Judge failed to relate the facts to the offence – Whether jury verdict unreasonable – Appeal allowed on the basis that lack of legal representation resulted in miscarriage of justice – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C M Quin	Ms A Cannon Solicitor for Public Prosecutions
For the Appellant	Ms H Spowart	Victorian Legal Aid

MAXWELL P:

I have had the considerable advantage of reading in draft the reasons for judgment of Neave JA. I agree that the application should be disposed of as her Honour proposes, for the reasons which she gives.

I also agree with Eames JA about the need for the terms and effect of s 360A to be explained to an unrepresented accused as soon as practicable after the commencement of proceedings. Because the trial judge will very often have had no involvement in the pre-trial hearings, the trial of an unrepresented accused should not be allowed to commence until the judge is satisfied that the question of the accused’s eligibility for an order under s 360A has been properly investigated.

EAMES JA:

For the reasons given by Neave JA, I agree that the application for leave to appeal should be granted, the appeal be allowed and a new trial be ordered. Given the length of time that has passed since the events occurred, out of which the prosecution arose, it may well be that a re-trial would not be pursued by the Director of Public Prosecutions, but that is properly a matter that should be left for the exercise of his discretion.

I add only one matter concerning grounds 1 and 2. In my opinion, it would be appropriate that as a matter of course, and at the earliest opportunity, an unrepresented accused should be provided with a copy of the terms of s 360A of the Crimes Act 1958 and have explained to him or her the effect of its terms, in particular that the onus rests with the applicant.

NEAVE JA:

Background

The applicant, Mr Hoang, was convicted after a…

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 Hoang

Details

AGLC: R v Hoang [2007] VSCA 117
Case: [2007] VSCA 117
Decision Date: 7 June 2007

CaseChat Overview and Summary

The applicant, Hoang, sought leave to appeal against his conviction for stalking. The case was heard by the court which was tasked with determining whether the trial judge's failure to order legal aid under the Crimes Act 1958, section 360A, resulted in a miscarriage of justice, as well as whether the lack of legal representation at trial also caused a miscarriage of justice. Furthermore, the court had to consider whether the applicant's behaviour constituted a "course of conduct" under the Crimes Act 1958, section 21A, and if an objective or subjective intention was required under section 21A(3) of the Crimes Act 1958. The court was also required to determine whether the judge should have directed the jury that they must be unanimous as to the particular acts that constituted the "course of conduct," and whether the judge failed to relate the facts to the offence. Additionally, the court had to assess whether the jury verdict was unreasonable.

The court considered the issue of whether the failure of the trial judge to make an order for legal aid under the Crimes Act 1958, section 360A, resulted in a miscarriage of justice. It was held that the lack of legal representation at trial did indeed result in a miscarriage of justice, as the applicant was unable to properly defend himself due to not having legal representation. The court also found that the applicant's behaviour did amount to a "course of conduct" under the Crimes Act 1958, section 21A, and that an objective intention was required under section 21A(3) of the Crimes Act 1958. However, the court held that the judge should have directed the jury that they must be unanimous as to the particular acts that constituted the "course of conduct." The court found that the jury verdict was unreasonable given the errors in the trial process, and thus the appeal was allowed on the basis that the lack of legal representation resulted in a miscarriage of justice.

The court ordered a re-trial for the applicant to ensure a fair trial process. The applicant was granted leave to appeal against his conviction for stalking, and the case was sent back for a re-trial. This outcome ensured that the applicant would have the opportunity to properly defend himself with legal representation, and that the jury would be properly directed in their deliberations. The court's decision emphasised the importance of legal representation in criminal trials and the need for judges to properly direct juries in order to avoid miscarriages of justice.

Orders