The Queen v Nguyen [2010] HCA 38 3 November 2010 M23/2010
ORDER
1. Special leave to appeal granted.
2. Special leave to cross-appeal granted.
3. Appeal and cross-appeal each treated as instituted and heard instanter and allowed.
4.Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made in respect of the respondent on 18 December 2009, and, in their place, order that:
(a)leave to appeal to that Court against conviction be granted;
(b)the appeal to that Court be allowed;
(c) the respondent's convictions be quashed; and
(d) a new trial be had.
On appeal from the Supreme Court of Victoria
Representation
T Gyorffy with B L Sonnet for the applicant (instructed by Director of Public Prosecutions (Vic))
M J Croucher with C B Boyce for the respondent (instructed by Michael J Gleeson & Associates Pty)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
The Queen v Nguyen
Criminal law – Appeal – Verdict unreasonable or cannot be supported having regard to the evidence – Respondent found guilty by jury of murder and attempted murder by complicity – Court of Appeal quashed convictions on ground that verdicts "unsafe and unsatisfactory" in the sense that verdicts were unreasonable or could not be supported having regard to the evidence – Whether verdicts unsafe and unsatisfactory – Whether reasonably open to jury on the whole of the evidence to convict respondent of murder and attempted murder – Task of appellate court.
Criminal law – Murder – Practice and procedure – Directions to jury – Whether alternative verdict of manslaughter sufficiently left to jury – Whether reasonably open to jury to return alternative verdict of manslaughter – Whether failure sufficiently to leave alternative verdict to jury constituted a wrong decision on a question of law – Whether no substantial miscarriage of justice actually occurred.
Words and phrases – "unsafe and unsatisfactory", "substantial miscarriage of justice".
HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ. In the early hours of 8 November 2004, the respondent (Dang Quang Nguyen), and two other men (Dang Khoa Nguyen and Bill Ho), went to a flat in Carlton, Victoria. The prosecution was later to allege that the three men had gone to the flat to collect a debt owed either to Bill Ho or Dang Khoa Nguyen by a man named Mau Duong. Mau Duong was not at the flat when the three men were there.
Seven young people were in the flat. Some were asleep; some were watching television. In the flat, the men repeatedly asked where Mau Duong was. The respondent entered the lounge room of the flat holding a sword. During the events that followed, he waved the sword about, cutting two or three of the flat's occupants. Whether the respondent had brought…
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
AGLC
R v Nguyen [2010] HCA 38
Case
[2010] HCA 38
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal and cross-appeal concerning the convictions of the respondent, Dang Khoa Nguyen, for murder and attempted murder by complicity. The Court of Appeal of Victoria had previously quashed these convictions, finding the jury's verdicts to be "unsafe and unsatisfactory" because they were unreasonable or could not be supported by the evidence. The central dispute before the High Court was whether the Court of Appeal erred in its assessment of the evidence and whether it was reasonably open to the jury to convict the respondent on the charges.
The legal issues before the High Court included whether the jury's verdicts of guilty were unreasonable or unsupported by the evidence, thus rendering them unsafe and unsatisfactory. Additionally, the court considered whether the trial judge had adequately left the alternative verdict of manslaughter to the jury, and if any failure to do so constituted a legal error that resulted in a substantial miscarriage of justice. The interpretation of the phrases "unsafe and unsatisfactory" and "substantial miscarriage of justice" were also pertinent to the determination of the appeals.
The High Court allowed the appeal and cross-appeal, setting aside the orders of the Court of Appeal. The High Court found that the Court of Appeal had erred in quashing the convictions. The High Court determined that it was reasonably open to the jury, on the whole of the evidence presented at trial, to convict the respondent of murder and attempted murder. The evidence included testimony that the respondent, along with others, attended a flat seeking a person named Mau Duong, and that witnesses identified the respondent as the individual wielding a samurai sword and threatening occupants while demanding to know Mau Duong's whereabouts. The court concluded that the jury's verdicts were not unsafe or unsatisfactory and that no substantial miscarriage of justice had occurred. Consequently, the High Court ordered that the respondent's convictions be reinstated, and that a new trial be had.
Orders
Orders of the court
1. Special leave to appeal granted.
2. Special leave to cross-appeal granted.
3. Appeal and cross-appeal each treated as instituted and heard instanter and allowed.
4. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made in respect of the respondent on 18 December 2009, and, in their place, order that:
(a) leave to appeal to that Court against conviction be granted;
(b) the appeal to that Court be allowed;
(c) the respondent's convictions be quashed; and
(d) a new trial be had.
Background
Background to the litigation
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Evidence
Evidence Before The Court
Attention should be directed first to the prosecution's application for special leave to appeal. That requires some examination of the evidence led at trial.The evidence at trial The prosecution's case at trial was that the three men had gone to the flat to collect a debt owed by Mau Duong for drugs that had been supplied to him by either Bill Ho or Dang Khoa Nguyen. Mau Duong gave evidence at trial that he was a drug dealer and had been a heroin addict. He said in evidence‑in‑chief that, about two weeks before the shootings, he had agreed to buy an ounce of heroin from Dang Khoa Nguyen. Mau Duong described how the heroin had been delivered to him, not by Dang Khoa Nguyen but by Bill Ho, and that the arrangement made was that he would pay $4,500 for the drugs after he had sold them. He said he paid for the drugs by first telling Dang Khoa Nguyen that he was ready to pay, and then, presumably by arrangement with Dang Khoa Nguyen, paying the amount owed to Bill Ho. In his evidence‑in‑chief he said that, a few days before the shootings, he again agreed to buy another ounce of heroin from Dang Khoa Nguyen for $4,500 on credit. Mau Duong arranged with Dang Khoa Nguyen that the heroin would be delivered by Bill Ho to the flat where the shootings were later to occur. Mau Duong collected the heroin from the flat on Friday, 5 November 2004. He did not pay for it then. On Sunday, 7 November 2004, his telephone recorded that a call had been made to it from a number that Mau Duong believed to be Dang Khoa Nguyen's phone. Mau Duong did not speak to Dang Khoa Nguyen. In cross‑examination, Mau Duong agreed that he had earlier said that the transactions he had described in his evidence‑in‑chief had occurred in the reverse order. The order in which the transactions occurred did not take on any particular significance in the trial. Several of those who had been in the flat when the shootings happened gave evidence at trial that, in the early hours of Monday, 8 November 2004, Bill Ho, Dang Khoa Nguyen and the respondent came to the flat. The room in which all of the relevant events occurred was about 6 metres long by 4 metres wide. It had a double bed, a stereo and a television set and there were numerous people in the room as events unfolded. One or more of the men who had come to the flat was asking, "Where's Mau? Where's Mau?" There was screaming and arguing. One of the men had a samurai sword which he was swinging around. Several witnesses identified the men in a fashion that would permit the jury to conclude that the respondent was the man with the sword. Whether he had come to the flat with the sword, or found it there, was open to question. One of the occupants of the flat (Kathleen Quach) described a man (who the jury could conclude was the respondent) coming into the room with a sword in his hand, followed by Bill Ho and then Dang Khoa Nguyen. She said that the man with the sword (the "long haired one") or another man (Dang Khoa Nguyen) was asking for Mau Duong. On being told by Tien Manh Pham that Mau Duong was not there, Bill Ho asked for Mau's phone number. Ms Quach said that while Tien was scrolling through his phone looking for a number, the man with the sword was walking around the room pointing the sword at people asking "Where's [Mau]? Do you [know] where [Mau] is?"
Decision
Reasons for decision
HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
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Ratio Decidendi
Legal Principle Established
Established by:
HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ