R v Nguyen - [2013] QCA 133

SUPREME COURT OF QUEENSLAND

CITATION:

R v Nguyen [2013] QCA 133

PARTIES:

R
v
NGUYEN, Phuc Hoang
(appellant)

FILE NO/S:

CA No 261 of 2012
DC No 614 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

31 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

2 May 2013

JUDGES:

White JA and Philippides and Ann Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Appeal against conviction allowed.1.

Conviction and verdict set aside.2.

New trial ordered.3.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – where the appellant was convicted by a jury in the District Court of one count of rape – where the complainant’s various accounts of the alleged rape contained inconsistencies – where the complainant’s account of the alleged rape in court was not contradicted by other testimony – where the appellant contended that the evidence in the case was of such poor quality that the jury could not have been satisfied to the requisite standard of the appellant’s guilt – whether the verdict was unreasonable or insupportable having regard to the evidence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant contended there was a miscarriage of justice because the learned trial judge failed to give a sufficiently clear and ample “Robinson” direction in light of the inconsistencies in the complainant’s evidence – whether there was a miscarriage of justice

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant contended there was a miscarriage of justice because the learned trial judge failed to properly direct the jury in relation to the complainant’s distressed condition – whether there was a miscarriage of justice

Criminal Code 1899 (Qld), s 632, s 668E(1)

M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited
R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, considered
Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered
Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, considered

COUNSEL:

C Heaton SC for the appellant
B J Power for the respondent

SOLICITORS:

Howden Saggers Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

WHITE JA: I have read the reasons of Ann Lyons J. I agree with her Honour that the inconsistencies in the complainant’s several accounts required a clear and ample direction.

While it is not, of course, essential that the particular model direction set out in the Benchbook be followed word for word, it does direct attention to what authoritative decisions of this and the High Court regard as important on the topic.

As her Honour…

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 [2013] QCA 133
Case: [2013] QCA 133
Decision Date: 31 May 2013

CaseChat Overview and Summary

In the matter of R v Nguyen, the appellant faced a conviction by a jury in the District Court of one count of rape. The complainant's various accounts of the alleged rape contained inconsistencies, which were not contradicted by other testimony. The appellant argued that the evidence was of such poor quality that the jury could not have been satisfied to the requisite standard of the appellant's guilt, and therefore the verdict was unreasonable or insupportable.

The court had to decide whether the evidence was of such poor quality that the jury could not have been satisfied to the requisite standard of the appellant’s guilt, and whether the trial judge's directions to the jury were sufficient to prevent a miscarriage of justice. The court considered the significance of the inconsistencies in the complainant’s evidence and whether the trial judge failed to give a sufficiently clear and ample “Robinson” direction in light of these inconsistencies. The court also considered whether the trial judge failed to properly direct the jury in relation to the complainant’s distressed condition, which was led by the Crown as part of the narrative.

The court found that the trial judge did not give a suitable “Robinson” warning, which specified the circumstances as follows: “You will need to scrutinise the evidence of (the complainant) with great care before you could arrive at a conclusion of guilt. That is because of (the following circumstances): - the delay between the time of (each) (the) alleged incident and the time the defendant was told of the complaint, and the lack of any opportunity to prove or disprove the allegation by, for example, a timely medical examination; - the age of the complainant at the time of the alleged incident; - the difference between the accounts the complainant has given; - these other matters (identify them). You should only act on that evidence if, after considering it with that warning in mind, and all the other evidence, you are convinced of its truth and accuracy.” The court found that the trial judge’s failure to outline the actual circumstances which called for scrutiny meant that the trial judge did not lend the “unmistakeable authority of the court” to the significance of the inconsistencies. The court also found that the trial judge failed to properly direct the jury in relation to the complainant’s distressed condition, which was led by the Crown as part of the narrative. The court found that there was a perceptible risk of miscarriage of justice.

The court allowed the appeal against conviction and set aside the conviction and verdict. The court ordered a new trial.

Orders

Orders of the court

Appeal against conviction allowed.1.

Conviction and verdict set aside.2.

New trial ordered.3.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Indeed the Benchbook indicates that a “Robinson” warning should specify the actual circumstances as follows:“A suggested ‘Robinson’ warning might be: You will need to scrutinize the evidence of (the complainant) with great care before you could arrive at a conclusion of guilt. That is because of (the following circumstances): - the delay between the time of (each) (the) alleged incident and the time the defendant was told of the complaint, and the lack of any opportunity to prove or disprove the allegation by, for example, a timely medical examination; - the age of the complainant at the time of the alleged incident; - the difference between the accounts the complainant has given; - these other matters (identify them). You should only act on that evidence if, after considering it with that warning in mind, and all the other evidence, you are convinced of its truth and accuracy.”[26][26]Benchbook Direction 60.3. Given the lack of detail by the trial judge about the actual circumstances which called for scrutiny, I do not consider that a suitable “Robinson” warning was given in the circumstances of this case. No doubt the jury was well aware of the inconsistencies in the complainant’s evidence but without the imprimatur of the trial judge, the significance of those inconsistencies was not brought home to the jury. I agree with the submission of counsel for the appellant that failure by the trial judge to outline those inconsistencies meant that the trial judge did not lend the “unmistakeable authority of the court” to the significance of the inconsistencies. I consider that given those matters, there is a perceptible risk of miscarriage of justice. I consider that the appeal should be allowed and a new trial ordered. Evidence of the complainant’s distressed condition was led by the Crown, particularly in relation to the disclosure that she made to KS and also the evidence that when she spoke to Constable Ryan she was “distressed and crying”. In the discussion with counsel prior to the summing up it was clear that the Crown was not relying on the evidence of distressed condition as corroboration of the complainant’s evidence but rather the Crown indicated that evidence had been led simply as part of the “narrative” and was not evidence supporting a conclusion of guilt. Accordingly, the learned trial judge directed the jury as follows: Counsel for the appellant argues that there is a real risk that in the absence of proper directions as to the caution to be employed when using evidence of this nature, the jury may have improperly used the evidence to bolster the credit of the complainant which was otherwise found to be wanting. Counsel argues that in the absence of a clear and meaningful direction, the jury may have uncritically accepted that her presentation to the police was consistent with what she complained of without considering other possibilities. It is also argued that the evidence of Constable Ryan as to the complainant’s presentation has no relevance except as possibly supporting the credibility of the complainant. Counsel argues that the jury should have been directed that there may be reasons for her observed condition, such as regret, after consensual intercourse or sexual contact or concern about some other issue entirely unrelated to the alleged sexual activity. It is also argued that the jury should have been specifically directed that the complainant’s condition may have been feigned or exaggerated.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Nguyen [2013] QCA 133
PARTIES:	R v NGUYEN, Phuc Hoang (appellant)
FILE NO/S:	CA No 261 of 2012 DC No 614 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Appeal against Conviction
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	31 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	2 May 2013
JUDGES:	White JA and Philippides and Ann Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	Appeal against conviction allowed.1. Conviction and verdict set aside.2. New trial ordered.3.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR CANNOT BE SUPPORTED HAVING REGARD TO THE EVIDENCE – where the appellant was convicted by a jury in the District Court of one count of rape – where the complainant’s various accounts of the alleged rape contained inconsistencies – where the complainant’s account of the alleged rape in court was not contradicted by other testimony – where the appellant contended that the evidence in the case was of such poor quality that the jury could not have been satisfied to the requisite standard of the appellant’s guilt – whether the verdict was unreasonable or insupportable having regard to the evidence CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant contended there was a miscarriage of justice because the learned trial judge failed to give a sufficiently clear and ample “Robinson” direction in light of the inconsistencies in the complainant’s evidence – whether there was a miscarriage of justice CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant contended there was a miscarriage of justice because the learned trial judge failed to properly direct the jury in relation to the complainant’s distressed condition – whether there was a miscarriage of justice Criminal Code 1899 (Qld), s 632, s 668E(1) M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited R v Tichowitsch [2007] 2 Qd R 462; [2006] QCA 569, considered Robinson v The Queen (1999) 197 CLR 162; [1999] HCA 42, considered Tully v The Queen (2006) 230 CLR 234; [2006] HCA 56, considered
COUNSEL:	C Heaton SC for the appellant B J Power for the respondent
SOLICITORS:	Howden Saggers Lawyers for the appellant Director of Public Prosecutions (Queensland) for the respondent