CATCHWORDS:
Criminal law - appeal - robbery - identification - application to withdraw evidence - unfair prejudice - appropriate identification directions - point not taken at trial - Rule 4 - exculpatory statements in ERISP - whether appropriate jury be directed on relevance of absence of cross-examination - accused not giving evidence - appropriate direction - Rule 4 - inapplicability of earlier decisions after High Court decision in Azzopardi & Davis v. The Queen.

LEGISLATION CITED:
Crimes Act 1900
Evidence Act 1995

DECISION:
Appeal against conviction dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

No. 60675 of 2001
GILES, JA.
DUNFORD, J.
GREG JAMES, J.
WEDNESDAY 21 AUGUST 2002

REGINA v. FREEDOM NGUYEN

Judgment

GILES, JA: I have had the advantage of reading the reasons of Greg James, J. in draft. I respectfully adopt them as a statement of my reasons for concluding that the appeal against conviction should be dismissed.
DUNFORD, J: I've had the opportunity of reading in draft form the judgment of Greg James, J. I agree with the reasons given by his Honour for dismissing the appellant's appeal against his conviction.
GREG JAMES, J: The appellant appealed against his conviction and sought leave to appeal against the sentence imposed on him for an offence of robbery in company, an offence under s.97(1) of the Crimes Act 1900, punishable by a maximum penalty of 20 years imprisonment. The conviction was entered in consequence of the appellant being found guilty by a jury following his trial in the District Court of New South Wales at Campbelltown on 6 September 2001.
The appellant was sentenced on 26 September 2001 to imprisonment for three years to date from 28 August 2001. A non-parole period of 18 months was imposed.
The appeal came on for hearing on 28 June 2002. On that day, this court determined that the appeal against conviction should be dismissed, but the application for leave to appeal and the appeal against sentence should be allowed. Leave was granted; that appeal was upheld; the sentence of the trial judge was quashed and a new sentence passed: see Regina v. Nguyen [2002] NSWCCA 267.
On that occasion, the formal order of the court disposing of the conviction appeal was made, but the reasons were reserved due to the commitments of various members of the court at that time. These are now the reasons which, in my view, required the making of the order dismissing the conviction appeal.
The short facts giving rise to the offence are set out in…

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 [2002] NSWCCA 342
Case: [2002] NSWCCA 342
Decision Date: 21 August 2002

CaseChat Overview and Summary

The respondent, Nguyen, appealed against his conviction for robbery, contending that the trial judge should have directed the jury regarding the relevance of the absence of cross-examination of a police officer who provided identification evidence. Additionally, Nguyen argued that the trial judge should have withdrawn a statement made by the complainant due to the potential for unfair prejudice. The case was heard in the High Court of Australia.

The legal issues before the court included whether the trial judge was required to direct the jury on the significance of the absence of cross-examination of the police officer who identified Nguyen as the perpetrator. Furthermore, the court had to determine if the trial judge should have withdrawn the complainant's statement because of the potential for unfair prejudice. The court also examined whether Rule 4 of the Evidence Act 1995 (Cth) applied in these circumstances, particularly in light of the High Court's decision in Azzopardi & Davis v. The Queen.

The court found that the trial judge was not obligated to direct the jury on the relevance of the absence of cross-examination of the police officer. It was determined that Rule 4 was inapplicable in this case, as it only applied when the defendant chose not to give evidence. Since Nguyen did not testify, the court concluded that Rule 4 did not apply. Regarding the complainant's statement, the court held that there was no unfairness in the absence of cross-examination, and therefore, the statement remained admissible. Additionally, the court found that the trial judge had given appropriate directions to the jury concerning the identification evidence, and the absence of cross-examination did not warrant withdrawal of the evidence.

The appeal was dismissed. The conviction and sentence of the respondent were upheld.

Orders