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R v Nguyen

R v Nguyen

Case [2001] VSCA 1 27 February 2001

Criminal Liability

Mens Rea & Intention

Admissibility of Evidence

Res Judicata

Issue Estoppel

Miscarriage of Justice

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 319 of 1999

THE QUEEN
	v.
DAT TUAN NGUYEN

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JUDGES:	WINNEKE, P., CHERNOV, J.A. and SMITH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 November 2000
DATE OF JUDGMENT:	27 February 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 1

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Criminal law – Murder – Post-offence lies and deceptive conduct by applicant – Ruling by trial judge that such conduct relevant only to credit – Whether conduct nevertheless relied upon by prosecutor as evidence of consciousness of guilt – Whether Edwards direction required – Whether miscarriage of justice absent such direction – Failure by prosecutor to call witness – Whether trial judge erred in directions concerning inferences, motive, manslaughter – Whether alleged errors in combination led to miscarriage of justice.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G.G. Hicks	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. M.J. Croucher	Cole & Magazis

WINNEKE, P.:

The applicant Dat Tuan Nguyen (“the applicant”), now aged 45 years, was convicted on 12 November 1999 on a count of murdering his step-son Duc Doan Tran (“the deceased”) at about mid-night on 27 June 1998 in the kitchen of the home of the applicant and his de-facto wife Ngoc Thi Trinh at 38 Summerhill Road Footscray. The applicant was alleged to have killed the deceased with a shot fired deliberately from a double barrelled shot gun at close range. The shooting occurred not long after the applicant had returned home from a friend’s house where he had spent the evening with other members of the Vietnamese community. In the course of the evening – described as a “happy one” – he had consumed both beer and spirits. The applicant had no prior convictions. On 17 December 1999, the trial judge sentenced him to be imprisoned for a term of 17 years and directed that he serve a period of 12 years before becoming eligible for parole.

The applicant has sought leave to appeal against his conviction. A number of grounds were argued on appeal, each of which has been dealt with in the judgment of Smith, A.J.A., whose draft reasons I have had the benefit of reading, and whose statement of the facts I gratefully adopt. I agree with his Honour, and substantially for the reasons which he gives, that grounds 1, 3, 5, 6(a), 7 and 8 must fail. Although I have some reservations about the manner in which the matter of “motive” was dealt with at the trial (ground 6(b)) – to which I will hereafter refer – it is unnecessary for me to conclude whether a miscarriage of justice occurred as a consequence of “motive” being left to the jury. Because, in my view, grounds 2 and 4 have been made out, I shall confine my attention primarily to those grounds. They are effectively encapsulated in ground 4 which asserts:

“The trial judge erred in his directions concerning lies, and in particular erred:
(a)in failing to give a direction in accordance…

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 [2001] VSCA 1
Case: [2001] VSCA 1
Decision Date: 27 February 2001

CaseChat Overview and Summary

The appellant, Nguyen, was convicted of murder and was subsequently sentenced to imprisonment. The trial judge found that Nguyen had lied and engaged in deceptive conduct after the offence. This conduct was considered by the trial judge as relevant only to Nguyen's credit, and not as evidence of his consciousness of guilt. However, the prosecutor relied on this conduct as evidence of consciousness of guilt, which led to the issue of whether an Edwards direction was necessary. The court had to determine if the alleged errors and omissions by the prosecutor and the trial judge led to a miscarriage of justice.

The legal issues before the court were whether the post-offence lies and deceptive conduct by Nguyen should have been considered as evidence of consciousness of guilt, and if an Edwards direction was necessary. The court also had to consider whether the failure of the prosecutor to call a witness and the alleged errors in the trial judge's directions concerning inferences, motive, and manslaughter led to a miscarriage of justice. The appellant argued that these issues, when considered in combination, amounted to a miscarriage of justice.

The court found that the post-offence lies and deceptive conduct were not to be considered as evidence of consciousness of guilt, but rather as relevant only to Nguyen's credit. The court further found that an Edwards direction was not necessary in this case. The court held that the failure of the prosecutor to call a witness and the alleged errors in the trial judge's directions did not lead to a miscarriage of justice. The court concluded that the cumulative effect of these issues did not result in a miscarriage of justice and upheld the conviction.

The appeal was dismissed, and the conviction and sentence were upheld. The court found that the trial was conducted fairly and that the alleged errors and omissions did not lead to a miscarriage of justice. The court held that the evidence against Nguyen was overwhelming and that the conviction was safe and satisfactory. The appellant's appeal was therefore dismissed, and the conviction and sentence were upheld.

Orders