R v Nguyen - [2006] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 111 of 2004

THE QUEEN
	v.
VAN XANG NGUYEN

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JUDGES:	VINCENT, ASHLEY and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 June 2006
DATE OF JUDGMENT:	15 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 158

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Criminal Law – Conviction – Trafficking in a commercial quantity of a drug of dependence – Cultivation of a commercial quantity of narcotic plants – Theft – Premises used for the hydroponic cultivation of cannabis plants – Direction as to whether the jury accepted the applicant’s explanation – Requirement that jury be left in no doubt as to the proper principles to be applied concerning the standard of proof – Risk that jury may have been misled – Fundamental defect – Application allowed – Re-trial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr M.J. Croucher	Michael Gleeson & Associates Pty.

VINCENT, J.A.:

The applicant was found guilty, on 18 May 2003, by a jury in the County Court on one count of trafficking in a commercial quantity of a drug of dependence (count 1), one count of cultivation of a commercial quantity of narcotic plants (count 2) and one count of theft (count 3).

Initially, the applicant sought and was granted leave to appeal against the sentences imposed upon him for these offences[1], but, by notice dated 17 December 2004, now applies for leave to appeal against his conviction[2].
[1]After hearing a plea in mitigation of penalty, the applicant was, on 19 May 2004, sentenced as follows:
on count 1               -           five years’ imprisonment
on count 2                -            five years’ imprisonment
on count 3                -           one year’s imprisonment
The sentencing judge directed that six months of the sentence imposed on count 3 was to be served cumulatively with that imposed on count 1. This created a total effective sentence of five years and six months’ imprisonment in respect of which he fixed a non-parole period of four years.
[2]In view of the conclusion at which I have arrived, the appeal against sentence need not be addressed.

The Application for Leave to Appeal Against Conviction

With respect to this application, the applicant contends that –

1.          A miscarriage of justice resulted from the taking of a jury verdict, the          recording of a conviction and the imposition of a sentence on count 2     (cultivation of cannabis in not less than a commercial quantity) given that the       facts giving rise to and/or the elements of that count were wholly            subsumed by the facts giving rise to and/or the elements of counts 1          (trafficking in cannabis).
2.          The learned trial judge erred:
(a)        in directing in a manner that tended to reverse the onus of proof –              e.g. “Do you accept it [the applicant’s explanation] or not?”
(b)        in directing that “[the evidence of Mr Pham and Ms Vo] is in direct   conflict with the accused and both cannot be right”.

3. 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 Nguyen [2006] VSCA 158
Case: [2006] VSCA 158
Decision Date: 15 August 2006

CaseChat Overview and Summary

In the case of R v Nguyen, the applicant was convicted for trafficking in a commercial quantity of a drug of dependence and for cultivating a commercial quantity of narcotic plants. The applicant sought to appeal against his conviction on the basis that the trial judge erred in directing the jury as to whether they accepted the applicant's explanation of the evidence. The matter was heard in the High Court of Australia.

The legal issue before the court was whether the trial judge's direction to the jury regarding the applicant's explanation of the evidence was sufficient to ensure that the jury understood the standard of proof required to convict the applicant. The applicant argued that the trial judge's direction created a risk that the jury may have been misled and that this constituted a fundamental defect in the trial.

The court found that the trial judge's direction to the jury did indeed create a risk that the jury may have been misled. The court held that the trial judge was required to ensure that the jury was left in no doubt as to the proper principles to be applied concerning the standard of proof. The court found that the trial judge had failed to do this, and that this constituted a fundamental defect in the trial. The applicant's appeal was therefore allowed, and a re-trial was ordered.

The court's decision highlights the importance of ensuring that juries are properly directed as to the standard of proof required to convict a defendant in criminal trials. The court's finding that the trial judge's direction in this case constituted a fundamental defect in the trial underscores the need for trial judges to take care to ensure that juries are properly informed of the principles that they must apply in reaching their verdict.

Orders