CITATION: Regina v Ngo [2003] NSWCCA 82 revised - 16/04/2003
FILE NUMBER(S): 60484/01
HEARING DATE(S): 13 - 15 November 2002
JUDGMENT DATE: 03/04/2003
PARTIES: Regina Phuong Canh Ngo (Appellant)
JUDGMENT OF: Stein JA Sully J Levine J
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S): 70086/98
LOWER COURT JUDICIAL OFFICER: Dunford J
COUNSEL: T Game SC/P Pearsall (Appellant) R Hulme SC/E Wilkins (Crown)
SOLICITORS: Selby Levitt (Appellant) S E O'Connor (Crown)
CATCHWORDS: CRIMINAL LAW - JURY - juror inadvertently exposed to inadmissible evidence - whether falure to discharge jury - whether incident gave rise to reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not, or will not discharge its task impartially - whether direction adequate to correct any prejudice or perception of prejudice to the accused EVIDENCE - whether decision to allow witnesses to give evidence by videolink infringed the right of the accused to a fair trial - whether s 20A of the Evidence (Audio and Audio Visual Links) Act 1998 provides that an accused must be able to see witnesses in all circumstances - whether accused has a fundamental right to confront accuser where issues of identity involved - whether trial judge properly balanced the forensic disadvantage suffered by the accused with the rights of witnesses - whether the decision to allow the witnesses to give videolink evidence prevented the accused from attending a part of the proceedings (Supreme Court Rules Part 75 rule 2(8)(b)) EVIDENCE - whether inadequate direction as to lies - whether inadequate direction as to accomplice evidence
LEGISLATION CITED: Evidence Act 1995, ss 55, 56, 87(1)(b) and (c), 108(3)(b), 137, 164, 165(1), (1)(d), (2)(a) (b) and (c), (3),(4) and (5) Evidence (Audio and Audio Visual Links) Act 1998, ss 5(1A), 5(2), 5B(1), 5B(2)(a), (b), (c) and (d), (2A), (3), 20A(a) Evidence (Children) Act 1997 Supreme Court Rules (Part 36 rule 2A(1) and Part 75 rule 2(8)(b) European Convention on Human Rights Article 6 Charter of Rights and Freedoms (Canada)
DECISION: Appeal against conviction dismissed
JUDGMENT:
IN THE COURT OF CRIMINAL APPEAL
60484/01
STEIN JA SULLY J LEVINE J
Thursday, 3 April 2003
Regina v Phuong Canh NGO
Judgment
THE COURT:
Introduction
The appellant, Phuong Canh Ngo, appeals against his conviction for the offence of the murder of John Newman on 5 September 1994. On 29 June 2001 the jury returned a verdict of guilty and the appellant was sentenced to life imprisonment on 14 November 2001. Two other accused, David Dinh and Quang Dao were acquitted.
Grounds of Appeal
The further amended Grounds of Appeal dated 8 November 2002 included 18 grounds. However, at the hearing of the appeal, Mr Game SC appearing on behalf of the appellant, reduced the grounds relied on to the following which are summarised in brief form.
1. Failure to discharge jury
2. Receipt of evidence of two witnesses by video link
3. Admission of identification…
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.
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AGLC
R v Ngo [2003] NSWCCA 82
Case
[2003] NSWCCA 82
Decision Date
CaseChat Overview and Summary
In the case of R v Ngo, the appellant was convicted of various criminal offences. The dispute before the court was whether certain errors in the trial process warranted a retrial, including the trial judge's decision to allow key witnesses to give evidence via video link, the inadvertent exposure of a juror to inadmissible evidence, and the adequacy of the trial judge's directions to the jury.
The central legal issues the court was required to decide were whether the decision to allow witnesses to testify via video link infringed the accused's right to a fair trial, and whether the trial judge adequately addressed the potential prejudice arising from the juror's exposure to inadmissible evidence. Additionally, the court considered whether the trial judge's directions to the jury were sufficient to address potential prejudice from the inadmissible evidence, and whether the trial judge properly balanced the rights of the accused and the witnesses.
The court found that the trial judge's decision to allow witnesses to give evidence via video link was not unfair to the appellant and did not infringe on the appellant's right to a fair trial. The court held that the accused does not have an absolute right to see the witnesses in all circumstances, and the trial judge properly balanced the rights of the accused and the witnesses. Regarding the juror's inadvertent exposure to inadmissible evidence, the court found that the trial judge's direction to the jury was adequate to correct any potential prejudice. The court held that the direction was sufficient to ensure that the jury would not be influenced by the inadmissible evidence in their deliberations.
As a result of the court's findings, the appeal was dismissed, and the convictions were upheld. The court found that the trial judge's decisions did not result in a miscarriage of justice, and there was no need for a retrial.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
We set forth the relevant provisions of the Evidence (Audio and Audio Visual Links) Act 1998 (the Act) as amended by Act No 16 of 2000 and in operation at the time of the trial. As to the application of the statute section 5(1A) provides:“This Act is not intended to exclude or limit the operation of any other law of the State or another place that makes provision for the taking of evidence or making of submissions in the State for the purposes of a proceeding in the State.” Section 5(2) states that:“Unless a contrary intention is shown, nothing in this Act limits or otherwise affects any discretion that a NSW court or a recognised court has with respect to the conduct of a proceeding.” Section 5B is important to this appeal and relevantly states:“(1)Subject to any applicable rules of court and subsection (2A), a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from any place within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.(2) The court must not make such a direction if:(a) the necessary facilities are unavailable or cannot reasonably be made available, or(b)the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or(c) the court is satisfied that the direction would be unfair to the party, or(d) the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.(2A) …(3)In a proceeding in which a party opposes the making of a direction for the giving of evidence or making of a submission to the court by audio link or audio visual link from any place within New South Wales other than the courtroom or other place where the court is sitting, the court must not make the direction unless the party making the application satisfies the court that it is in the interests of the administration of justice for the court to do so.” Also relevant to the appellant’s submission is s 20A which provides as follows:“Evidence must not be given, and a submission must not be made, by audio visual link under this Act unless the courtroom or other place where a NSW court is sitting, and the place where the evidence would be given or the submission would be made, are equipped with audio visual link facilities that enable:(a)persons who are at the courtroom or other place to see and hear the person giving the evidence or making the submission, ….” It is submitted on behalf of the appellant that the trial Judge erred in granting the Crown application and in restricting the appellant from seeing the faces of the two witnesses. Mr Game submits that his Honour erred in concluding that the granting of the application would not be unfair to the appellant (s 5B(2)(c)).