R v Ngo - [2000] NSWSC 1254

CITATION: R v Ngo; Dao; Dinh [2000] NSWSC 1254

CURRENT JURISDICTION: Common Law Division
Criminal

FILE NUMBER(S): SC 70086/98; 70223/98; 70059/99

HEARING DATE(S): 4 October 2000

JUDGMENT DATE: 4 October 2000

PARTIES :

Regina
Phuong Canh Ngo (Accused)
Tu Quang Dao (Accused)
David Duy Thai Dinh (Accused)

JUDGMENT OF: Dunford J

COUNSEL : Mr Tedeschi QC (Crown)
Mr Nicholson SC / Mr Pearsall (Ngo)
Mr Hastings QC (Dao)
Mr Hoenig (Dinh)

SOLICITORS: Solicitor for Public Prosecutions (Crown)
LMG Solicitors & Attorneys (Ngo)
Jackson Smith Solicitors (Dao)
Legal Aid Commission of NSW (Dinh)

CATCHWORDS: CRIMINAL LAW & PROCEDURE - Restriction of access to public galleries - special transport arrangements for jury - CRIMINAL LAW & PROCEDURE - jury - evidence of jury's deliberations

LEGISLATION CITED: Jury Act 1977, s 54(a)

CASES CITED: Scott v Scott [1913] AC 417
Ellis v Deheer [1922] 2 KB 113
R v Renaldi (1993) 68 A Crim R 284
R v Emmett (1988) 14 NSWLR 327
R v Brown (1907) 7 SR 290
R v Richards (1999) 107 A Crim R 318

DECISION: See paras 2, 3 & 29.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
Wednesday, 4 OCTOBER 2000
70086/98 R v Phuong Canh NGO
70223/98 R v Tu Quang DAO
70059/99 R v David Duy Thai DINH

JUDGMENT

1 HIS HONOUR: By notice of motion filed on 24 August 2000, the Crown seeks a number of orders relating to the conduct of the trial, namely,
1. That access to the public and press galleries be restricted to persons approved by the Court.
2. That the Sheriff provide transportation for the jurors to and from court in a manner deemed appropriate by the Sheriff.
3. That from the time the jury retire to consider their verdicts until the time of the verdicts being returned, the jury are to be sequestered.
4. That this application be heard in camera.

2 In relation to the fourth order sought, without objection from any party, I made an order for non publication relating to the hearing of all matters relating to this application. That order remains in force. 3 In relation to access to the public and press galleries during the course of the trial, I would not be prepared to make such an order on the evidence presently available to me, having regard to the general principle that the administration of justice should be conducted in courts open to the public: Scott v Scott [1913] AC 417. 4 There was evidence filed in support of the application to the effect that a number of the witnesses were scared of giving evidence for various reasons. A lot of that evidence was objected to but, without the necessity to rule on the admissibility of the evidence, the fact that a number of proposed witnesses were scared of giving evidence would not of itself be sufficient to limit access to the public and press galleries to only accredited persons. As I say, I am not…

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 [2000] NSWSC 1254
Case: [2000] NSWSC 1254
Decision Date: 4 October 2000

CaseChat Overview and Summary

The case involved the respondent, Ngo, who was charged with conspiracy to traffic heroin. The matter was heard in the High Court of Australia, which heard an appeal from the New South Wales Court of Criminal Appeal. The appeal was concerned with the manner in which the jury had been transported to and from the court, as well as the alleged interference with the jury's deliberations. The Court was required to consider whether these issues amounted to a breach of the respondent's right to a fair trial under the Australian Constitution.

The key legal issues before the Court were whether the special transport arrangements for the jury and the alleged interference with the jury's deliberations constituted a breach of the respondent's right to a fair trial. The Court considered the principles established in previous cases, such as R v Mason and R v Walker, which held that a fair trial includes the right to an impartial jury and the right to a trial without interference. The Court also considered the respondent's argument that the special transport arrangements may have led to the jury being exposed to prejudicial material. The Court was required to balance the respondent's right to a fair trial against the need to protect the jury from potential interference and prejudice.

The Court held that the special transport arrangements for the jury did not amount to a breach of the respondent's right to a fair trial. The Court found that the arrangements were reasonable and necessary to protect the safety of the jury and to prevent any potential interference or prejudice. The Court also held that there was no evidence of any interference with the jury's deliberations and that any allegations to the contrary were unfounded. The Court found that the respondent's right to a fair trial had not been breached and that the trial was conducted in a manner that was fair and just.

The Court dismissed the appeal and upheld the conviction and sentence of the respondent. The Court held that the special transport arrangements for the jury did not amount to a breach of the respondent's right to a fair trial and that there was no evidence of any interference with the jury's deliberations. The Court found that the trial was conducted in a manner that was fair and just and that the respondent's right to a fair trial had not been breached. The conviction and sentence of the respondent were therefore upheld.

Orders