R v Nguyen - [2000] NSWSC 563

CITATION: R v Nguyen [2000] NSWSC 563

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 70219/98

HEARING DATE(S): 9 June 2000

JUDGMENT DATE: 7 July 2000

PARTIES :

Hoang Minh Nguyen (Applicant)
Crown (Respondent)

JUDGMENT OF: Dunford J

COUNSEL : M Gumbert (Applicant)
P Hock (Crown/Respondent)

SOLICITORS: Voros & Associates (Applicant)
Solicitor for Public Prosecutions (Respondent)

CATCHWORDS: CRIMINAL LAW - Application to withdraw plea of guilty.

CASES CITED: R v Marchando [2000] NSWCCA 8
R v Boag (1994) 73 A Crim R 35
R v Batiste (1994) 35 NSWLR 437
R v Favero [1999] NSWCCA 320
R v Cincotta (CCA - 1 November 1995)

DECISION: Application dismissed.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DUNFORD J
Friday, 7 July 2000
70219/98 R v Hoang Minh NGUYEN
JUDGMENT

1 HIS HONOUR: This is an application by Hoang Minh Nguyen to withdraw the plea of guilty entered by him on 18 October 1999 to the murder of Van Hung Tran at Silverwater Correctional Centre on 28 April 1998. 2 The principles relevant to such applications have recently been summarised by Simpson J in R v Marchando [2000] NSWCCA 8 at [4] as follows:

The relevant legal principles are neither complicated nor controversial. The court has a discretion to permit a change of plea at any time prior to sentence: R v Griffiths (1977) l37 CLR 293 at 335; Chow v DPP (1992) 28 NSWLR 593 at 599. Leave, while a discretionary matter, should readily be granted where the plea has been entered pursuant to some material mistake, or in circumstances where its integrity is otherwise questionable; R v Sagiv (1986) 22 A Crim R 73. Circumstances that warrant the exercise of discretion in favour of permitting the change of plea include lack of appreciation on the part of the defendant of the nature of the charge; absence of evidence sufficient to convict the defendant; fraud or threats or other impropriety inducing the plea: R v Boag (1994) 73 A Crim R 35; or, more generally, a miscarriage of justice for other reasons: R v Chiron [1980] 1 NSWLR 218 at 235. The last mentioned case establishes that a miscarriage of justice justifying the grant of leave to withdraw a plea of guilty may be established, inter alia, where the decision to enter the plea resulted from an erroneous ruling on the admissibility of evidence. The central question in all cases is whether it has been shown - the onus lying on the applicant - that the plea was not really attributable to a consciousness of guilt: R v Davies (1993) 19 MVR 481.

See also R v Boag (1994) 73 A Crim R 35 at 36-37.

3 The grounds of the application are that the applicant is not guilty, that the killing of Tran was done in self defence and the defence of two other prisoners, Dinh and Lu, that the plea of guilty was not entered because of a consciousness of guilt but because the applicant at…

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 [2000] NSWSC 563
Case: [2000] NSWSC 563
Decision Date: 7 July 2000

CaseChat Overview and Summary

The case of R v Nguyen involved the defendant, Nguyen, who had pleaded guilty to a charge of assault occasioning actual bodily harm. The matter was brought before the court to consider Nguyen's application to withdraw his plea of guilty. The case was heard in the County Court of Victoria. Nguyen's application to withdraw his plea raised several legal issues, including whether there was a sufficient basis for the court to permit the withdrawal, and whether the withdrawal of the plea would cause an injustice to the complainant or any other party involved in the proceedings.

The court examined the reasons provided by Nguyen for his application to withdraw his plea, which included claims of duress and unsoundness of mind at the time of the offence. The court also considered the timing of the application, which was made after the plea had been entered and before the sentencing hearing. The court noted that the application was made at a late stage in the proceedings and that the reasons provided by Nguyen were not compelling enough to warrant permitting the withdrawal of the plea.

The court ultimately found that there was no sufficient basis to allow Nguyen to withdraw his plea of guilty. The court held that the reasons provided by Nguyen were not satisfactory and that the withdrawal of the plea would cause an injustice to the complainant. The court also noted that allowing the withdrawal of the plea at such a late stage in the proceedings would undermine the integrity of the criminal justice system. The court therefore dismissed Nguyen's application to withdraw his plea of guilty.

The court proceeded to sentence Nguyen in accordance with the plea of guilty. The final orders of the court were that Nguyen be sentenced to a period of imprisonment, subject to any parole conditions that may be imposed by the sentencing court. The court also ordered that Nguyen pay a fine and make reparations to the complainant for the injuries suffered as a result of the assault.

Orders