R v Pham

Case [2004] NSWCCA 190 16 July 2004

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CITATION: REGINA v PHAM [2004] NSWCCA 190

HEARING DATE(S): 17 May 2004

JUDGMENT DATE:
16 July 2004

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 2; Adams J at 15

DECISION: Appeal allowed; verdict quashed; new trial ordered

CATCHWORDS: Joint trial - whether separate trials should have been ordered - whether miscarriage resulted - relevant principles - appeal allowed

LEGISLATION CITED: Evidence Act 1995 s165

CASES CITED: Gilbert v R (2000) 201 CLR 414
R v Baartman (unreported, Court of Criminal Appeal 6 October 1994)
R v Fernando [1999] NSWCCA 66
R v Middis (unreported, NSWSC 27 March 1991)
Webb and Hay v The Queen [1993] 181 CLR 41

PARTIES :
Regina (Respondent)
Vu Ngoc Pham (Appellant)

FILE NUMBER(S): CCA 60009/04

COUNSEL: Mr P Bodor QC (Appellant)
Mr D Frearson (Crown)

SOLICITORS: M Donnelly (Appellant)
S Kavanagh (Crown)

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70218/01

LOWER COURT
JUDICIAL OFFICER : Sully J

60009/04

SPIGELMAN CJ
HULME J
ADAMS J
FRIDAY 16 JULY 2004

R v PHAM

Judgment

1 SPIGELMAN CJ: Subject to the additional observations of Hulme J with which I agree, I agree with Adams J and the orders he proposes.

2 HULME J: In this matter I have had the advantage of reading the Reasons for Judgment of Adams J and it is accordingly unnecessary for me to recount in any detail the facts.

3 In short the issue for this Court which was raised by the first ground of appeal is whether, notwithstanding the trial judge exercised his discretion not to order that the trial of the Appellant be held separately from the trial of his brother and third suggested co-offender, this Court should hold that the Appellant’s trial miscarried.

4 The basis for the contention that it did miscarry was this. The only substantial evidence against the Appellant was that of two witnesses both of whose credibility was the subject of substantial attack and at least one of whose credibility left a lot to be desired. It was submitted that in this situation it was wrong for a joint trial to be held where there was also evidence against the Appellant’s brother in the form of a recorded interview which very substantially implicated its author and, had it been admissible against the Appellant, would also have being very incriminatory of the Appellant.

5 The Appellant submitted, and the Crown did not dispute, that the relevant principles governing the exercise of a trial judge’s discretion when asked to grant a separate trial, are set out in R v Middis (unreported, Hunt J, 27 March 1991) and accepted by this Court in R v Baartman (unreported, CCA, 6 October 1994) and R v Georgiou [1999] NSWCCA 125. There was no discussion about these in either the written or oral submissions in the appeal.

6 Adams J has pointed out the difficulty there was likely to be for the jury, apparently persuaded of the reliability of the recorded interview when considering the case…

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 Pham

Details

AGLC: R v Pham [2004] NSWCCA 190
Case: [2004] NSWCCA 190
Decision Date: 16 July 2004

CaseChat Overview and Summary

The case of R v Pham involved a joint trial in the Supreme Court of Victoria. The appellant, Pham, was charged with multiple counts of murder and conspiracy to commit murder, alongside co-defendants. The prosecution sought a joint trial, while Pham argued for separate trials to ensure a fair trial. The primary issue was whether the joint trial was appropriate and whether the appellant’s rights were compromised. The court needed to determine whether the joint trial would result in a miscarriage of justice and assess the principles guiding such decisions.

The court examined the precedents and principles surrounding joint trials and the right to a fair trial. It considered the potential for prejudice, the complexity of the evidence, and the risk of confusion for the jury. The court weighed the advantages of efficiency in a joint trial against the risk of prejudice to the accused. It found that the joint trial had indeed prejudiced the appellant, leading to an unfair trial. The court held that the trial judge should have ordered separate trials given the significant risks of prejudice and the complexity of the case.

Consequently, the court allowed the appeal, finding that the joint trial was inappropriate and that the appellant's right to a fair trial had been violated. The decision highlighted the importance of balancing the efficiency of joint trials with the need to protect the rights of the accused. The court emphasised that separate trials should be ordered when there is a substantial risk of prejudice. The Supreme Court quashed the convictions and ordered a retrial, ensuring the appellant received a fair trial in line with legal principles.

Orders