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 |
| 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…
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- AGLC
- R v Hoang [2007] VSCA 117
- Case
- [2007] VSCA 117
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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