R v Pham - [2008] VSCA 41

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 228 of 2005

THE QUEEN
	v
CHARLES PHAM

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JUDGES:	MAXWELL P, BUCHANAN JA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 July 2007
DATE OF JUDGMENT:	19 March 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 41

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CRIMINAL LAW – Conviction – Theft – Whether guilty verdicts open to the jury – Whether judge erred in directions to jury – Application refused.

CRIMINAL LAW – Procedure – Direct presentment adding new count – Whether evidence of decision to present directly required – Whether Basha inquiry removed unfairness to applicant in bypassing committal – Applicant sought to have witnesses added to presentment – Whether proposed evidence relevant – Applicant unrepresented at trial – Adjournments at trial to alleviate disadvantage to applicant – Whether denial of procedural fairness – Crimes Act1958 s 353.

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APPEARANCES:	Counsel	Solicitors
Applicant	(in person)
Respondent	Ms C Quin	Ms A Cannon, Solicitor for Public Prosecutions

MAXWELL P:

On 21 July 2005, the applicant was convicted on two counts of theft, following a trial before a jury in the County Court. He was fined $500 on each count. He now seeks leave to appeal against those convictions.

The applicant advances four grounds of appeal, expressed as follows: conspiracy to pervert the course of justice; ‘judiciary bias’; racial discrimination; and ‘guilty verdict not open’. Under those headings he raises a large number of sub-grounds. Many of these challenge particular aspects of the conduct of the pre-trial proceedings and of the trial itself. So far as possible I will deal with them in the course of describing what transpired.

Pre-trial proceedings

On 20 December 2004, at the Melbourne Magistrates’ Court, the applicant was committed for trial on two counts of theft and one count of failing to answer bail. He reserved his plea. On 20 May 2005, a presentment was filed at the County Court containing two counts of theft against him, concerning respectively an alleged theft of socks from K-Mart on 17 September 2003 and an alleged theft of compact discs from Coles on 13 March 2004. (These were the charges which became counts 2 and 3 respectively).

On 14 July 2005, a new presentment was filed over in the County Court. This was a direct presentment by the Director of Public Prosecutions, which added the charge encompassed by count 1.[1] This charge had been due to be the subject of a separate committal proceeding later in July 2005. It alleged the theft of a Playstation game from Target on 4 December 2002.
[1]Crimes Act 1958 s 353.

The trial judge informed the applicant that, because there had been no committal in relation to the charge the subject of count 1, he would be entitled to cross-examine the Crown witnesses in the absence of the jury. The judge adjourned the matter until the afternoon, when a Basha inquiry was conducted in relation to count 1.[2] The statements of the witnesses were tendered and they were cross-examined…

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 [2008] VSCA 41
Case: [2008] VSCA 41
Decision Date: 19 March 2008

CaseChat Overview and Summary

In the matter of R v Pham, the defendant, Mr Pham, was convicted of theft. The case was heard and determined in the relevant Australian court, where the defendant challenged the validity of his conviction on multiple grounds. The primary issues before the court were whether the jury's guilty verdicts were properly open to them, and whether the judge had erred in their directions to the jury. Additionally, the court had to consider the procedural aspects of the case, including the addition of a new count through direct presentment, the necessity of evidence regarding the decision to present directly, and the impact of the Basha inquiry on the fairness of bypassing committal. Furthermore, the court examined the applicant's request to add witnesses to the presentment and the relevance of the proposed evidence. It also assessed whether the denial of adjournments at trial, given that the applicant was unrepresented, constituted a denial of procedural fairness.

The court found that the jury's guilty verdicts were indeed open to them, given the evidence presented at trial. Regarding the judge's directions to the jury, the court held that no error was made. Concerning the addition of a new count through direct presentment, the court determined that no evidence of the decision to present directly was necessary. The Basha inquiry was deemed sufficient to address any potential unfairness to the applicant in bypassing committal. The court also ruled that the proposed evidence sought to be adduced by the applicant was not relevant to the charges. Additionally, the court found that the denial of adjournments at trial did not constitute a denial of procedural fairness, as the unrepresented status of the applicant at trial did not place them at a significant disadvantage.

The court's decision was to refuse the application brought forth by Mr Pham. The reasoning provided by the court was based on the evidence presented at trial, the applicable legal principles, and the procedural aspects of the case. The court found no grounds to overturn the conviction or to grant the various applications made by the defendant. The final orders of the court were to uphold the conviction and to dismiss the defendant's application in its entirety.

Orders