R v Nguyen - [2003] NSWSC 1068

CITATION: R v Tuan Minh Nguyen [2003] NSWSC 1068

HEARING DATE(S): 10/09/03 - 18/09/03, 22/09/03 - 9/10/03, 13/10/03 - 23/10/03, 27/10/03 - 14/11/03

JUDGMENT DATE:
17 November 2003

JUDGMENT OF: Buddin J

DECISION: Evidence ruled inadmissible.

CATCHWORDS: Objection taken to identification evidence - fresh application after further material made available - numerous factors taken into account in determining whether the unfair prejudice of the evidence outweighs its probative value - evidence excluded.

LEGISLATION CITED: Evidence Act

CASES CITED: Alexander v The Queen (1981) 145 CLR 395
Domican v The Queen (1992) 173 CLR 556
Festa v The Queen (2001) 185 ALR 394
Pitkin v The Queen (1995) 69 ALJR 612
R v Blick (2000) 111 A Crim R 326
R v Marshall (2000) 113 A Crim R 190
R v Tugaga (1994) 74 A Crim R 190

PARTIES :
Regina
Tuan Minh Nguyen

FILE NUMBER(S): SC 70087/02

COUNSEL: R Herps (Crown)
G Wendler (Accused)

SOLICITORS: SE O'Connor (Crown)
Van Houten (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

MONDAY 17 NOVEMBER 2003

70087/02 – REGINA v TUAN MINH NGUYEN
JUDGMENT

1 Tuan Minh Nguyen (the accused) is charged with the murder of Omar El-Chami Batch at Bankstown on 16 February 2001. At the outset of the trial and before the jury was empanelled, objection was taken to evidence being led from a young person, who by reason of his age I will refer to as L, in which it was anticipated that he would purport to identify the accused as having shot the deceased. I overruled the objection. In the course of doing so, I set out in considerable detail the evidence which the Crown indicated that it expected to lead in its case. Apart from L, there are a number of other persons to whom I shall refer, during the course of these reasons, by initials only.

2 Set out below is the evidence to which I have just referred:

The shooting of the deceased occurred at about 3.15 pm on Friday 16 February 2001 at Bankstown Railway Station. It was the culmination of events which had their genesis in an incident which had occurred in the same area some days before. On 13 February at about 3.15 pm a group of Lebanese schoolboys set upon an Asian boy [whom, by reason of his age, I shall refer to as D] and his friend in the mistaken belief that he was the boy who had scratched an Asian boy several days before. A fight ensued and D produced a pen which he used to stab a Lebanese boy in the leg. This incident provided the impetus for the confrontation which occurred on 16 February. Groups of Asian and Lebanese youths, gathered in anticipation, it would appear, of a fight taking place at that time.

D arranged for a number of his friends to come and provide him with support. He also asked his brother, T, to bring along some of his friends. 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.

Continue reading R v Nguyen

Details

AGLC: R v Tuan Minh Nguyen [2003] NSWSC 1068
Case: [2003] NSWSC 1068
Decision Date: 17 November 2003

CaseChat Overview and Summary

The case of R v Nguyen involved a criminal trial in which the defendant objected to the use of identification evidence. The court had to consider a fresh application made by the defence after additional material had been provided. The dispute centred around the admissibility of the identification evidence, with the defence arguing that its prejudicial impact outweighed its probative value. The matter was heard in a superior court, where the presiding judge had to weigh various factors to determine the appropriateness of the evidence.

The legal issues that the court had to decide included whether the fresh application was valid, and if so, whether the identification evidence should be excluded under the provisions of the Evidence Act. The court had to consider the nature of the additional material provided, the reliability of the identification, the circumstances in which it was obtained, and the potential for unfair prejudice to the defendant. Additionally, the court had to assess whether there were alternative means of proving the case without relying on the contested evidence.

In determining the outcome, the court took into account numerous factors, including the strength of the additional material provided by the defence, the potential for the evidence to mislead the jury, and the overall fairness of the trial. The court concluded that the prejudicial effect of the identification evidence did indeed outweigh its probative value, leading to the decision to exclude it from the trial. This decision was made on the basis that allowing the evidence to be presented could result in a miscarriage of justice, thereby undermining the integrity of the judicial process.

The final orders of the court were that the identification evidence in question was to be excluded from the trial. This decision was based on the findings that the evidence was likely to cause unfair prejudice to the defendant and that its exclusion was necessary to ensure a fair trial. The court's ruling underscores the importance of balancing the probative value of evidence against its potential to unfairly prejudice the defendant.

Orders