R v Ngo - [2002] VSCA 188

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 343 of 2000

THE QUEEN

TRONG DUY NGO

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JUDGES:	WINNEKE, P., CHERNOV, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 October 2002
DATE OF JUDGMENT:	1 November 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 188

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Criminal law – Armed robbery – Whether judge erring in directions to jury on corroboration, aiding and abetting and lies to which no exception taken at trial – Whether error in permitting prosecutor to cross-examine principal Crown witness – Whether jury should have been discharged after hearing excluded evidence – Sentence not manifestly excessive or disparate from that imposed on co-accused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr J.P. Dickinson	Ian Polak

WINNEKE, P.:

After a trial in the County Court at Melbourne in September of 2000, the applicant Ngo (whom I will refer to as "the applicant") was found guilty of one count of armed robbery committed upon people named Nguyen on 8 October 1998. The armed robbery occurred at the home of the Nguyens at 9 Saxony Court, Mulgrave, in the late hours of the evening. At the relevant time the applicant was in company with three other male offenders (one unknown and the other two I shall call "Pham" and "Luan") and two females. Only Pham has since been identified. He pleaded guilty to the armed robbery. He was, at the date of the offence, aged 17 years with no prior convictions. He pleaded guilty at the earliest opportunity and was sentenced on 10 February 2000 and released on a good behaviour bond. The applicant, who was aged 30 at the time of the offending, was, as I have said, convicted after trial in September 2000 and was sentenced, on 30 October 2000, to a term of imprisonment of five years with a non-parole period of three years. Prior to sentence he admitted a number of previous convictions, mainly relating to offences of dishonesty, from two previous court appearances.

The applicant has sought leave to appeal both against the conviction recorded and the sentence imposed. He has relied upon a number of grounds to which I will hereafter refer. In order to place them in context, it is necessary to briefly refer to the evidence given at trial and to certain events which occurred during the course of the hearing.

The victims of the armed robbery, Mr and Mrs Nguyen, had conducted at all material times a business of manufacturing clothing. In the course of conducting the business it was contended by the applicant that the Nguyens had incurred a debt of $2,000 to the applicant's mother who was also involved in the business of clothing manufacture and sale. She was known to the Nguyens as "Auntie Tu". Although she was to be called by the Crown as a witness at the trial, the judge excused her from doing so pursuant to s.400 of the

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 Ngo

Details

AGLC: R v Trong Duy Ngo [2002] VSCA 188
Case: [2002] VSCA 188
Decision Date: 1 November 2002

CaseChat Overview and Summary

The case of R v Ngo was heard in a court in Australia, involving a dispute concerning criminal law and armed robbery. The defendant, Ngo, was charged with armed robbery and related offences. The primary issues before the court were whether the judge made errors in directing the jury on matters of corroboration, aiding and abetting, and lies to which no exception was taken at trial. Furthermore, the court examined whether the trial judge erred in permitting the prosecutor to cross-examine the principal Crown witness and if the jury should have been discharged after hearing excluded evidence. Additionally, the court assessed whether the sentence imposed on Ngo was manifestly excessive or disparate from that imposed on co-accused.

The court considered whether the judge's directions to the jury on the principles of corroboration, aiding and abetting, and lies were legally sound. It was necessary to determine if these directions were sufficient to enable the jury to make informed decisions based on the evidence presented. The court also evaluated the trial judge's decision to allow the prosecutor to cross-examine the principal Crown witness, assessing whether this action was within the bounds of procedural fairness and the law. Furthermore, the court examined the circumstances surrounding the exclusion of certain evidence and whether the jury's exposure to this evidence necessitated a discharge. Finally, the court reviewed the sentence imposed on Ngo to determine if it was excessively harsh or inconsistent with sentences given to co-defendants.

The court found that the judge did not err in the directions given to the jury, as they were consistent with legal principles and adequately guided the jury. The court also determined that the trial judge's decision to allow the prosecutor to cross-examine the principal Crown witness was within legal bounds and did not prejudice the defendant. Regarding the excluded evidence, the court concluded that the jury's exposure to it did not necessitate a discharge. Finally, the court found that the sentence imposed on Ngo was not manifestly excessive or disparate from that of co-accused, thus affirming the trial judge's decision.

The final orders of the court confirmed that Ngo's convictions and sentences were upheld. The court dismissed the appeals and affirmed the decisions made by the trial judge, including the sentence imposed on Ngo.

Orders