R v Nguyen - [2023] QCA 168

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nguyen [2023] QCA 168

PARTIES:

R
v
NGUYEN, Adon Minh
(appellant)

FILE NO/S:

CA No 213 of 2022
SC No 1138 of 2022

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 1 September 2022 (Brown J)

DELIVERED EX TEMPORE ON:

23 August 2023

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2023

JUDGES:

Mullins P and Flanagan JA and Henry J

ORDERS:

1.   Appeal allowed.

2.   The conviction in respect of the charge of trafficking in dangerous drugs with a circumstance of aggravation is quashed.

3.   A new trial is ordered in respect of that charge.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – where the appellant was charged with and stood trial for trafficking in dangerous drugs with a circumstance of aggravation or alternatively trafficking in dangerous drugs simpliciter – where the circumstance of aggravation is provided for by s 161Q of the Penalties and Sentences Act 1992 (Qld) – where the appellant appeals on the basis that the circumstance of aggravation was not yet in existence for part of the charged trafficking period – where the jury were not directed as to a pre-requisite of criminal liability for the circumstance of aggravation, it not having been drawn to the attention of the learned trial judge by either counsel – whether there is a reasonable possibility that the directions omission may have affected the verdict

Drugs Misuse Act 1986 (Qld), s 5
Penalties and Sentences Act 1992 (Qld), s 161Q, s 161R, s 251
Serious and Organised Crime Legislation Amendment Act 2016 (Qld)

Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited

COUNSEL:

M J Copley KC for the appellant
G J Cummings for the respondent

SOLICITORS:

Jacobson Mahony Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

THE COURT: The appellant stood trial on count 1 of an indictment containing other counts to which he pleaded guilty. Count 1 charged trafficking in dangerous drugs with a circumstance of aggravation or alternatively trafficking in dangerous drugs simpliciter. He pleaded guilty to the simpliciter charge, which plea was not accepted by the prosecution in discharge of count 1. The circumstance of aggravation alleged:

“And Adon Minh Nguyen was a participant in a criminal organisation;
And Adon Minh Nguyen knew, or ought reasonably to have known, the offence was being committed in association with one or more persons who were, at the time the offence was committed, or at any time during the course of the commission of the offence, participants in a criminal organisation.”

That circumstance of aggravation is provided for by s 161Q of the Penalties and Sentences Act 1992 (Qld). The offence provision, s 5 Drugs Misuse Act 1986 (Qld), provides at s 5(2) that s 161Q creates a circumstance of aggravation for the offence. If such a circumstance of…

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 [2023] QCA 168
Case: [2023] QCA 168
Decision Date: 23 August 2023

CaseChat Overview and Summary

In this case, the appellant, Nguyen, was charged with trafficking in dangerous drugs with a circumstance of aggravation, and alternatively, trafficking in dangerous drugs without a circumstance of aggravation. The matter proceeded to trial, and the jury returned a guilty verdict on both counts. Nguyen appealed against the conviction for trafficking in dangerous drugs with a circumstance of aggravation, arguing that the trial judge failed to properly direct the jury on the requisite elements of this offence, and that there was a reasonable possibility that this omission affected the jury’s verdict.

The central legal issues before the court were whether the trial judge misdirected the jury by not outlining a necessary pre-requisite of criminal liability for the circumstance of aggravation, and if such a misdirection had a reasonable possibility of affecting the jury’s verdict. The court noted that neither counsel drew the requisite pre-requisite to the attention of the trial judge, and as such, it was not included in the jury directions. The appellant argued that the omission of this direction was a significant error, as it potentially led to an incorrect verdict.

The court held that the omission of the necessary pre-requisite in the jury directions was indeed a significant error. It found that there was a reasonable possibility that the error affected the jury’s verdict, and as such, it was necessary to quash the conviction and order a new trial for the charge of trafficking in dangerous drugs with a circumstance of aggravation. The court was satisfied that the error was significant enough to warrant a new trial, as it potentially impacted the jury’s understanding of the elements of the offence and the appellant’s criminal liability.

The orders made by the court were to allow the appeal, quash the conviction in respect of the charge of trafficking in dangerous drugs with a circumstance of aggravation, and order a new trial in respect of that charge. The conviction for trafficking in dangerous drugs without a circumstance of aggravation was not affected by the court’s decision.

Orders

Orders of the court

1. Appeal allowed.

2. The conviction in respect of the charge of trafficking in dangerous drugs with a circumstance of aggravation is quashed.

3. A new trial is ordered in respect of that charge.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Nguyen [2023] QCA 168
PARTIES:	R v NGUYEN, Adon Minh (appellant)
FILE NO/S:	CA No 213 of 2022 SC No 1138 of 2022
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Conviction: 1 September 2022 (Brown J)
DELIVERED EX TEMPORE ON:	23 August 2023
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2023
JUDGES:	Mullins P and Flanagan JA and Henry J
ORDERS:	1. Appeal allowed. 2. The conviction in respect of the charge of trafficking in dangerous drugs with a circumstance of aggravation is quashed. 3. A new trial is ordered in respect of that charge.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW – MISDIRECTION AND NON-DIRECTION – where the appellant was charged with and stood trial for trafficking in dangerous drugs with a circumstance of aggravation or alternatively trafficking in dangerous drugs simpliciter – where the circumstance of aggravation is provided for by s 161Q of the Penalties and Sentences Act 1992 (Qld) – where the appellant appeals on the basis that the circumstance of aggravation was not yet in existence for part of the charged trafficking period – where the jury were not directed as to a pre-requisite of criminal liability for the circumstance of aggravation, it not having been drawn to the attention of the learned trial judge by either counsel – whether there is a reasonable possibility that the directions omission may have affected the verdict Drugs Misuse Act 1986 (Qld), s 5 Penalties and Sentences Act 1992 (Qld), s 161Q, s 161R, s 251 Serious and Organised Crime Legislation Amendment Act 2016 (Qld) Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40, cited
COUNSEL:	M J Copley KC for the appellant G J Cummings for the respondent
SOLICITORS:	Jacobson Mahony Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent