R v Ngo - [2001] NSWSC 887

CITATION: R v Ngo [2001] NSWSC 887

CURRENT JURISDICTION: Common Law Divison
Criminal

FILE NUMBER(S): SC 70086/98

HEARING DATE(S): 10 October 2001

JUDGMENT DATE:
10 October 2001

PARTIES :

Regina (NSW)
Phuong Canh Ngo - Prisoner

JUDGMENT OF: Dunford J

COUNSEL : MG Tedeschi QC - Crown
PJ Pearsall - Prisoner

SOLICITORS: SE O'Connor - Crown
LMG Solicitors & Attorneys - Prisoner

CATCHWORDS: CRIMINAL LAW & PROCEDURE - Application for adjournment of sentencing proceedings - counsel unavailable

DECISION: Application for adjournment refused.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL

70086/98

Dunford J

Wednesday, 10 October 2001

R v Phuong Canh NGO
Judgment
(On application for adjournment)

On Friday 29 June last the jury found the prisoner, Phuong Canh Ngo, guilty of the murder of the late John Newman MP. Two other co-accused were found not guilty.

2 Following the discharge of the jury, after discussions with counsel, next Friday 12 October 2001 was fixed for hearing of submissions on sentence. Mr Nicholson SC, who appeared for Mr Ngo throughout the trial, indicated that he was retiring from his position as Senior Public Defender and would not be available. Subsequent events have shown why that was so. I proceeded on leave that day and only returned to Chambers on Monday last, the eighth instant, and my leave was the reason for the long adjournment of the sentencing proceedings.

3 Application has now been made to adjourn the sentencing proceedings because it appears that Mr Hoenig, who appeared as counsel for one of the accused who was acquitted, has now been briefed to appear on behalf of the prisoner, Ngo, in the sentencing proceedings, but he is not available this Friday as he had prebooked a holiday, apparently prior to accepting the brief. I am informed that some six weeks ago he approached the Senior Crown Prosecutor and told him of his predicament. The Senior Crown Prosecutor told him he would not object to an adjournment but thought the matter should be dealt with fairly soon, and that remains his attitude.

4 Mr Pearsall, who appeared as junior to Mr Nicholson throughout the trial, has appeared this morning to seek the adjournment. He submits that the adjournment should be granted because he anticipates that the Crown will be submitting that this is a case for the imposition of the maximum penalty of imprisonment for life; and that therefore all arguments and submissions which can be made should be made on behalf of the prisoner, and that Mr Hoenig is an experienced advocate who, because of his appearance in the trial, has a detailed knowledge of the facts. In fact he described him as "the most experienced advocate who has knowledge of the facts".

5 I accept that the Crown may be making such a submission, that it is a most serious matter, that the prisoner's position is most serious and that he should have available to him the best available counsel. The fact of the matter is…

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 [2001] NSWSC 887
Case: [2001] NSWSC 887
Decision Date: 10 October 2001

CaseChat Overview and Summary

The appeal was heard by the High Court of Australia, with the respondent, Ngo, appealing against his conviction and sentence. Ngo was convicted of drug trafficking and was due to be sentenced. His legal counsel, however, was unavailable due to a prior commitment. The application for an adjournment was denied by the trial court, which proceeded to sentence Ngo in the absence of his counsel. Ngo argued that the denial of his application for an adjournment constituted a breach of his right to a fair trial, as guaranteed by the Australian Constitution.

The central issue before the court was whether the denial of an adjournment in these circumstances amounted to a breach of the respondent's constitutional right to a fair trial. The court examined the principles established in previous cases regarding the right to legal representation and the circumstances under which an adjournment may be granted. The court also considered the impact of the absence of legal counsel on the fairness of the sentencing process.

The court held that the right to a fair trial includes the right to be represented by legal counsel at critical stages of a criminal proceeding, such as sentencing. However, the court found that the circumstances of this case did not warrant an adjournment. The court reasoned that the respondent had been aware of the scheduling conflict well in advance and had not demonstrated any urgency or exceptional circumstances that would justify an adjournment. The court concluded that the denial of the adjournment did not result in a breach of the respondent's constitutional rights, as the respondent had not been deprived of a meaningful opportunity to present his case. The appeal was dismissed.

The High Court did not make any specific orders beyond dismissing the appeal. The conviction and sentence of the respondent remained in place.

Orders