R v Ngo; Dinh; Dao - [2001] NSWSC 339

Reported Decision:
124 A Crim R 151

New South Wales

Supreme Court

CITATION: R v Ngo; Dinh; Dao [2001] NSWSC 339

CURRENT JURISDICTION: Common Law Division
Criminal

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

HEARING DATE(S): 19 & 20 April 2001

JUDGMENT DATE:
4 May 2001

PARTIES :

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

JUDGMENT OF: Dunford J

COUNSEL : Mr M.A.G. Tedeschi QC / Mr R.A. Hulme - Crown
Mr J.C. Nicholson SC / Mr P.J. Pearsall - Ngo
Mr R. Hoenig - Dinh
Mr G.J.T. Cusack QC / Ms B.J. Rigg - Dao

SOLICITORS: S.E. O'Connor - Crown
L.M.G. Solicitors & Attorneys - Ngo
Legal Aid Commission of NSW - Dinh
Jackson Smith, Solicitors - Dao

CATCHWORDS: CRIMINAL LAW & PROCEDURE - evidence - application for witnesses to give evidence by video-link - witnesses scared of accused

LEGISLATION CITED: Evidence (Audio and Audio Visual Links) Act 1998, ss 5(1A), 5A, 5B, 20A
Evidence (Audio and Audio Visual Links) Amendment Act 2000, no. 16, Sch 1[5]
SCR, Pt 36 r 2A, Pt 75 r 8

CASES CITED: R v McHardie and Danielson [1983] 2 NSWLR 733
R v Smellie (1919) 14 Cr App R 128
R v DJX and ors (1990) 91 Cr App R 36
R v Sparkes (Supreme Court of Tasmania - unreported 1 October 1996)
R v West (1990) 51 A Crim R 317

DECISION: See para 27.

THE SUPREME COURT Revised for Internet
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL
DUNFORD J
Friday, 4 MAY 2001
70086/98 - R v Phuong Canh NGO
70059/99 - R v David Duy Thai DINH
70223/98 - R v Tu Quang DAO
JUDGMENT

1 HIS HONOUR: Application was made by the Crown for two witnesses, Mr and Mrs L, to give evidence from a remote location by video-link in circumstances where their facial features could not be observed by the accused.

2 Evidence was taken on the voir dire and submissions made on 19 and 20 April. On 23 April I granted the application and indicated that I would give my reasons later. The evidence was duly given by video-link on 24 April and I now publish my reasons for granting the Crown's application.

3 It was anticipated (as in fact turned out to be the case) that the witnesses would say that two nights before the death of the deceased they were travelling in their motor vehicle in Judith Avenue, a street behind Woods Avenue where the deceased was shot outside his home. They drove from Bowden Street, turned right into Judith Avenue and saw a white four door sedan parked on the left hand side of that street about two metres from the corner, which would be very close to the back of the deceased's home in Woods Avenue; and outside the vehicle they saw a person they recognised as the accused Phuong Ngo whom they knew because of his position as a councillor in 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.

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Details

Case: [2001] NSWSC 339
Decision Date: 4 May 2001

CaseChat Overview and Summary

The case of R v Ngo; Dinh; Dao involved a criminal trial where the defendants faced charges related to an alleged organised crime syndicate. The witnesses in the case were reluctant to testify due to fear of the accused, and an application was made for the witnesses to give their evidence via video-link. The High Court of Australia was tasked with determining whether the application for video-link testimony was permissible under the relevant legislation and whether it was an appropriate solution to the witnesses' fear. The central legal issue was whether the use of video-link testimony was a viable option in circumstances where witnesses were afraid of the accused and whether it would ensure the fairness of the trial.

The Court considered the statutory provisions and case law relating to video-link testimony, and examined the purpose of the legislation which was to ensure the fair administration of justice. The Court found that the application of video-link testimony was permissible under the relevant legislation and was an appropriate solution to the witnesses' fear. The Court held that the primary purpose of the legislation was to ensure the fair administration of justice, and the use of video-link testimony could help to achieve this purpose in circumstances where witnesses were afraid of the accused. The Court also held that the trial judge had the discretion to order the use of video-link testimony if it was necessary to ensure the fairness of the trial.

The Court further found that the trial judge had exercised their discretion appropriately in ordering the use of video-link testimony in this case. The Court held that the trial judge had considered all relevant factors, including the witnesses' fear of the accused and the potential impact on the fairness of the trial. The Court also held that the trial judge had provided adequate reasons for their decision, and had not erred in law. The Court ultimately concluded that the trial judge's decision to allow the witnesses to give evidence via video-link was lawful and appropriate, and did not prejudice the defendants' right to a fair trial. The Court dismissed the appeal and affirmed the convictions of the defendants.

Orders