R v Loeung (No 2) - [2019] NSWSC 1691

Supreme Court

New South Wales

Medium Neutral Citation: R v Loeung (No 2) [2019] NSWSC 1691
Hearing dates: 16 August 2019
Date of orders: 29 November 2019
Decision date: 29 November 2019
Jurisdiction: Common Law
Before: N Adams J
Decision:
The application for a costs order under s 2 of the Costs in Criminal Cases Act 1967 (NSW) is refused.

Catchwords: CRIME – costs – application for certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) – where offender charged with 7 counts – where offender is acquitted on 4 counts, convicted on 2 counts and the jury was unable to agree on the remaining count – where credibility of Crown witnesses poor – whether reasonable to institute proceedings
Legislation Cited: Costs in Criminal Cases Act 1967 (NSW), s 2, s 3
Criminal Procedure Act 1986 (NSW), s 82, s 84, s 91, s 93
Cases Cited: Beatson v R [2015] NSWCCA 17
Cittadini v R [2010] NSWCCA 291
DAO v R (No 3) [2016] NSWCCA 282
Mordaunt v Director of Public Prosecutions & Anor (2007) 171 A Crim R 510; [2007] NSWCA 121
R v Johnston [2000] NSWCCA 197
R v Le [2019] NSWSC 633
R v Loeung [2019] NSWSC 1172
R v Moore [2015] NSWSC 1263
R v Pavy (Court of Criminal Appeal, unreported, 9 December 1997)
R v Tooes [2008) NSWSC 291
R v Trevor Dunne (NSWSC, unreported, 17 May 1990)
Regina v Groom [2000] NSWCCA 538
Category: Principal judgment
Parties: Regina (Crown)
Nou Sovathara Loeung (Offender)
Representation:
Counsel:
A Morris (Crown)
W Terracini SC with Mr B Murray (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
McAneny Lawyers (Offender)

File Number(s): 2016/47425
Publication restriction: Nil

Judgment

Background

On 12 February 2016, the offender was at home in Bonnyrigg with his wife and three young children having dinner with two guests when his quiet evening was interrupted by a female neighbour, previously unknown to him, arriving at his door seeking protection from her abusive boyfriend. The offender’s subsequent assistance to this neighbour led to a series of events culminating in a violent altercation involving nine strangers who arrived at the offender’s property and attacked him and one of his guests, Mr Duc Thuong Le. The offender used knives to protect himself and his family. By the time his attackers fled the scene four of them were injured, one fatally. The offender and Mr Le were both injured in the attack as well. The full details of the incident are set out in R v Loeung [2019] NSWSC 1172 (“R v Loeung”).
On 24 April 2019, the offender stood trial in the Supreme Court on an Indictment containing seven counts: murder (count 1), affray (count 2), four counts of wounding with intent to inflict grievous bodily harm contrary to s 33(1) of the Crimes Act 1900 (NSW) (counts 3, 4, 5 and 6) and one count of being armed with three knives with intent to commit an indictable offence, namely, an assault,…

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 Loeung (No 2)

Details

AGLC: R v Loeung (No 2) [2019] NSWSC 1691
Case: [2019] NSWSC 1691
Decision Date: 29 November 2019

CaseChat Overview and Summary

The respondent, Loeung, was charged with seven criminal offences, including drug supply and possession. The trial resulted in acquittals on four counts, convictions on two counts, and a hung jury on the remaining count. Loeung applied for a certificate under section 2 of the Costs in Criminal Cases Act 1967 (NSW) to recover legal costs. The Crown opposed the application, arguing that the proceedings were reasonable due to the evidence presented, despite the poor credibility of the Crown witnesses. The court had to decide whether the Crown's decision to proceed with the charges was reasonable, considering the evidence and the outcome of the trial.

The court considered the factors outlined in section 2 of the Act, including the evidence available to the Crown at the time of charging and the outcome of the trial. The court found that the Crown had sufficient evidence to charge Loeung with the offences, but the credibility issues of the Crown witnesses made the proceedings more difficult. Despite the outcome, the court determined that the Crown had a reasonable basis to institute the charges due to the evidence presented. Consequently, the court denied Loeung's application for a certificate to recover legal costs.

The court's decision emphasised the importance of considering the evidence available to the Crown at the time of charging, rather than solely focusing on the trial outcome. The court acknowledged the challenges posed by the poor credibility of the Crown witnesses but concluded that the evidence was sufficient to justify the charges. The court's ruling highlights the need for a balanced approach when assessing the reasonableness of instituting criminal proceedings, taking into account both the strength of the evidence and the circumstances of each case.

The court denied Loeung's application for a certificate to recover legal costs. The court ordered that Loeung bear his own costs of the application.

Orders