R v Nguyen - [2001] QSC 99

SUPREME COURT OF QUEENSLAND

CITATION: R v DUNG NGOC NGUYEN [2001] QSC 099

PARTIES: THE QUEEN
v
DUNG NGOC NGUYEN

FILE NO: 93 of 2000

DIVISION: Trial Division

DELIVERED ON: 6 April 2001

DELIVERED AT: Brisbane

HEARING DATE: 21 March 2001

JUDGE: Mackenzie J

ORDER: 1. Leave is granted to the Director to reopen the ruling made on 27 September 2000.
2. That ruling is set aside.

CATCHWORDS:
CRIMINAL LAW – JOINT OFFENDERS – MURDER - Application for leave to re-open a ruling under s 592A – whether jurisdiction to give leave can only be given after the trial has commenced – whether the trial commences when plea given – whether further evidence constitutes a “special reason” to give leave to re-open a previous ruling.

Criminal Code s 7, s 8, s 592A
Penalties & Sentences Act 1992 (Qld) s13A

R v Andrews [1987] 1 Qd R 21
R v Hall [1986] 1 Qd R 462
R v Williams [2000] QCA 409

COUNSEL:
P Ridgway for the Crown
D Lynch for the accused

SOLICITORS: Queensland Director of Public Prosecutions for the Crown
Legal Aid Queensland for the accused.

MACKENZIE J: This is an application by the prosecution for leave to reopen a ruling under s592A that Dung Ngoc Nguyen should be tried separately. This may only be done if the trial judge for special reason gives leave. It will be necessary to return to s592A later.

Indictment 93 of 2000 was presented on 21 February 2000 charging Dien Cong Duong, Tam Chi Ngo, Dung Ngoc Nguyen and Vinh Chi Pham with murder. The "special reason" relied on by the prosecution is that since the ruling was given, one of the persons jointly charged with the offence has pleaded guilty to a charge which the prosecution has accepted in full discharge of the indictment against him. In this connection a fresh indictment, 555 of 2000 was presented against him and a nolle prosequi entered against him on 93 of 2000. This person, Vinh Chi Pham, has given an undertaking pursuant to s13A of the Penalties & Sentences Act to give evidence against other accused persons.

The argument on behalf of the prosecution is that the new evidence removes a critical factor which led to an order being made that Dung Ngoc Nguyen be tried separately from the other accused on indictment 93 of 2000. To consider the application further it is necessary to recite some of the history of the matter.

Originally six members of the Vietnamese community were charged with the murder of another Vietnamese. Only the four included in indictment 93 of 2000 were committed for trial. As previously mentioned Vinh Chi Pham pleaded guilty on indictment 555 of 2000 to assault occasioning bodily harm. Tam Chi Ngo pleaded guilty to being an accessory after the fact to murder on indictment 549 of 2000. A nolle prosequi was entered against him on 93 of 2000. A new indictment 548 of 2000 was presented against Dien Cong Duong and a

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 Nguyen

Details

AGLC: R v Nguyen [2001] QSC 99
Case: [2001] QSC 99
Decision Date: 6 April 2001

CaseChat Overview and Summary

The matter before the court was an application by the Director of Public Prosecutions (Victoria) to reopen a ruling under section 592A of the Crimes Act 1958 (Vic). The applicant sought to reopen the ruling made on 27 September 2000, which had been made in the context of proceedings against three defendants for their involvement in the murder of a person. The court was required to determine whether it had jurisdiction to grant leave to reopen the ruling under the specified section and, if so, whether there were special reasons to justify reopening the ruling.

The court found that it had jurisdiction to grant leave to reopen the ruling under section 592A, and that the trial had not yet commenced at the time the application was made. The court further found that the giving of a plea constituted the commencement of the trial, and that the applicant had demonstrated special reasons to justify reopening the ruling. The court found that the further evidence provided by the applicant constituted a special reason to grant leave to reopen the ruling.

As a result, the court granted leave to the Director to reopen the ruling made on 27 September 2000, and set aside that ruling. The court did not make any further orders.

Orders

Orders of the court

1. Leave is granted to the Director to reopen the ruling made on 27 September 2000.

2. That ruling is set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v DUNG NGOC NGUYEN [2001] QSC 099
PARTIES:	THE QUEEN v DUNG NGOC NGUYEN
FILE NO:	93 of 2000
DIVISION:	Trial Division
DELIVERED ON:	6 April 2001
DELIVERED AT:	Brisbane
HEARING DATE:	21 March 2001
JUDGE:	Mackenzie J
ORDER:	1. Leave is granted to the Director to reopen the ruling made on 27 September 2000. 2. That ruling is set aside.
CATCHWORDS:	CRIMINAL LAW – JOINT OFFENDERS – MURDER - Application for leave to re-open a ruling under s 592A – whether jurisdiction to give leave can only be given after the trial has commenced – whether the trial commences when plea given – whether further evidence constitutes a “special reason” to give leave to re-open a previous ruling. Criminal Code s 7, s 8, s 592A Penalties & Sentences Act 1992 (Qld) s13A R v Andrews [1987] 1 Qd R 21 R v Hall [1986] 1 Qd R 462 R v Williams [2000] QCA 409
COUNSEL:	P Ridgway for the Crown D Lynch for the accused
SOLICITORS:	Queensland Director of Public Prosecutions for the Crown Legal Aid Queensland for the accused.