R v Ngo - [2009] QSC 212

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ngo [2009] QSC 212

PARTIES:

R
(respondent)
v
HI NGO
(applicant)

FILE NO/S:

Indictment No 990 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application for pre-trial ruling

DELIVERED ON:

11 March 2009

DELIVERED AT:

Brisbane

HEARING DATE:

12 February 2009

JUDGE:

Mullins J

ORDER:

1. Application to stay the indictment is dismissed
2. Application to exclude parts of the evidence of Chiu, Wu, Chen, Hu and Lin is dismissed

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAYING PROCEEDINGS – where there were two committal hearings – where the first committal hearing was in relation to the offence of obtaining property by deception – where the defendant was discharged at the conclusion of the first committal hearing – where the defendant was subsequently charged with conspiracy arising from the same events as the substantive offence – where the Magistrate did not give any ruling at the conclusion of the second committal hearing on whether the charge should be dismissed under s 135.4(13) of the Criminal Code (Cth) – where the applicant was committed for trial at the second committal hearing – whether the failure of the Magistrate to give reasons for rejection of the application under s 135.4(13) affects the prosecution of the charge on the indictment – whether discharge of the applicant at the first committal justifies stay of the indictment

EVIDENCE – ADMISSIBILITY AND RELEVANCY – FACTS RELEVANT TO FACTS IN ISSUE – IN GENERAL – where defendant charged with conspiracy to defraud – where application to exclude parts of the evidence of employees of alleged co-conspirators about their conversations with the defendant after the execution of search warrants– where the evidence was part of the circumstantial case against the defendant to prove the conspiracy existed and the defendant was a participant in the conspiracy – whether the evidence should be excluded

Administrative Decisions (Judicial Review) Act 1977

(Cth), s 9A
Criminal Code (Cth), s 134.1, s 135.1, s 135.4

Criminal Code (Qld), s 590AA

DPP v A (2001) 117 A Crim R 551, distinguished
Grassby v The Queen (1989) 168 CLR 1, considered
Jago v District Court (NSW) (1989) 168 CLR 23, considered
R v Familic (1994) 75 A Crim 229, considered
R v Garth [2008] VSC 210, distinguished
R v Gesa and Nona, ex parte Attorney-General
[2001] 2 Qd R 72, considered
The Queen v Hoar (1981) 148 CLR 32, considered
R v Shepherd (1988) 37 A Crim R 303, considered
R v Williams [1987] 2 Qd R 777, considered
Rogers v The Queen (1994) 181 CLR 251, considered
Salmat Document Management Solutions Pty Ltd v The Queen (2006) 199 FLR 46, distinguished

COUNSEL: PE Smith for the applicant
GP Long SC and JA Phillips for the respondent

SOLICITORS: TDT & Company Lawyers for the applicant
Commonwealth Director of Public Prosecutions for the respondent

MULLINS J: The applicant applies for 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 Ngo [2009] QSC 212
Case: [2009] QSC 212
Decision Date: 11 March 2009

CaseChat Overview and Summary

The case of R v Ngo involved the defendant who had previously been discharged at a committal hearing for the offence of obtaining property by deception. Subsequently, the defendant was charged with conspiracy arising from the same events as the substantive offence. The case before the court involved two committal hearings. The first hearing concluded with the defendant's discharge, and the second hearing resulted in the defendant being committed for trial. The key legal issues were whether the failure of the Magistrate to give reasons for rejecting the application under s 135.4(13) of the Criminal Code affected the prosecution of the charge on the indictment and whether the discharge at the first committal justified a stay of the indictment.

The court considered whether the absence of reasons from the Magistrate impacted the prosecution of the conspiracy charge. It was determined that the failure to give reasons did not affect the prosecution, as the statutory requirement to give reasons is a procedural safeguard and does not impact the substantive rights of the parties. The court also examined whether the discharge at the first committal justified a stay of the indictment. It found that the prior discharge did not automatically justify a stay, as the subsequent conspiracy charge was a separate offence with different elements that had not been considered in the first hearing.

The court's reasoning was grounded in statutory interpretation and the distinct nature of the charges. It held that the discharge at the first committal hearing did not preclude the prosecution from pursuing the conspiracy charge, as the charges were separate and distinct. Furthermore, the court found that the lack of reasons from the Magistrate did not invalidate the proceedings or the commitment for trial. In light of this, the application to stay the indictment was dismissed, and the application to exclude parts of the evidence was also dismissed as the evidence was deemed relevant to the circumstantial case against the defendant.

The final orders of the court were that the application to stay the indictment was dismissed and that the application to exclude parts of the evidence of the witnesses Chiu, Wu, Chen, Hu, and Lin was also dismissed. The evidence in question was considered relevant to proving the existence of the conspiracy and the defendant's participation in it.

Orders

Orders of the court

1. Application to stay the indictment is dismissed

2. Application to exclude parts of the evidence of Chiu, Wu, Chen, Hu and Lin is dismissed

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.

CITATION:	R v Ngo [2009] QSC 212
PARTIES:	R (respondent) v HI NGO (applicant)
FILE NO/S:	Indictment No 990 of 2008
DIVISION:	Trial Division
PROCEEDING:	Application for pre-trial ruling
DELIVERED ON:	11 March 2009
DELIVERED AT:	Brisbane
HEARING DATE:	12 February 2009
JUDGE:	Mullins J
ORDER:	1. Application to stay the indictment is dismissed 2. Application to exclude parts of the evidence of Chiu, Wu, Chen, Hu and Lin is dismissed
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAYING PROCEEDINGS – where there were two committal hearings – where the first committal hearing was in relation to the offence of obtaining property by deception – where the defendant was discharged at the conclusion of the first committal hearing – where the defendant was subsequently charged with conspiracy arising from the same events as the substantive offence – where the Magistrate did not give any ruling at the conclusion of the second committal hearing on whether the charge should be dismissed under s 135.4(13) of the Criminal Code (Cth) – where the applicant was committed for trial at the second committal hearing – whether the failure of the Magistrate to give reasons for rejection of the application under s 135.4(13) affects the prosecution of the charge on the indictment – whether discharge of the applicant at the first committal justifies stay of the indictment EVIDENCE – ADMISSIBILITY AND RELEVANCY – FACTS RELEVANT TO FACTS IN ISSUE – IN GENERAL – where defendant charged with conspiracy to defraud – where application to exclude parts of the evidence of employees of alleged co-conspirators about their conversations with the defendant after the execution of search warrants– where the evidence was part of the circumstantial case against the defendant to prove the conspiracy existed and the defendant was a participant in the conspiracy – whether the evidence should be excluded Administrative Decisions (Judicial Review) Act 1977 (Cth), s 9A Criminal Code (Cth), s 134.1, s 135.1, s 135.4 Criminal Code (Qld), s 590AA DPP v A (2001) 117 A Crim R 551, distinguished Grassby v The Queen (1989) 168 CLR 1, considered Jago v District Court (NSW) (1989) 168 CLR 23, considered R v Familic (1994) 75 A Crim 229, considered R v Garth [2008] VSC 210, distinguished R v Gesa and Nona, ex parte Attorney-General [2001] 2 Qd R 72, considered The Queen v Hoar (1981) 148 CLR 32, considered R v Shepherd (1988) 37 A Crim R 303, considered R v Williams [1987] 2 Qd R 777, considered Rogers v The Queen (1994) 181 CLR 251, considered Salmat Document Management Solutions Pty Ltd v The Queen (2006) 199 FLR 46, distinguished
COUNSEL:	PE Smith for the applicant GP Long SC and JA Phillips for the respondent
SOLICITORS:	TDT & Company Lawyers for the applicant Commonwealth Director of Public Prosecutions for the respondent