R v PHOUNG VIET NGUYEN
[2011] ACTSC 25 (23 February 2011)
CRIMINAL LAW – trial by judge alone – attempted murder – discharging a loaded firearm – absence of evidence as to motive and attempted murder – credibility of the complainant – meaning of discharging loaded firearm “at” another person – finding of guilt
Crimes Act 1900 (ACT), s 27(3) (d)
Supreme Court Act 1933 (ACT), s 68C
Fox v Percy [2003] 214 CLR 118
R v Marshall (1987) 49 SASR 133
R v Prasad (1979) 23 SASR 161
R v Marshall (1987) 49 SASR 133
R v Mulcahy [2010] ACTSC 98
R v McConchie [2010] ACTSC 137
The Macquarie Dictionary (2nd ed, 1992)
The Oxford English Dictionary (2nd ed, 1989)
No. SCC 118 of 2010
Judge: Teague AJ
Supreme Court of the ACT
Date: 23 February 2011
IN THE SUPREME COURT OF THE )
) No. SCC 118 of 2010
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
v
PHOUNG VIET NGUYEN
ORDER
Judge: Teague AJ
Date: 23 February 2011
Place: Canberra
THE COURT ORDERS THAT:
A verdict of guilty be entered in respect of Counts 1 and 3 on the indictment.
A verdict of not guilty be entered in respect of Count 2 on the indictment.
3.
The questions asked by a jury during deliberations often reveal their curiosity about apparent gaps in the evidence, particularly as to motive. The jury has to be told to decide the case on the evidence before them, and not to speculate. This was not a jury case, but it had its curious apparent gaps, particularly as to motive. Before me, Thanh Tran said that, on 19 October 2009 at 28 Hillebrand Street, Page ACT, Phuong Nguyen, his friend of many years, had shot at him twice, hitting him with the second shot. Phuong Nguyen was charged with three counts and came for trial before me. The first charge was of discharging a loaded firearm at Thanh Tran. The second was of the attempted murder of Thanh Tran. The third was an alternative to the second. It was, like the first, of discharging a loaded firearm at Thanh Tran. The central issue at the trial was the credibility of Thanh Tran.
5.
I am conscious of the basic requirement as to this judgment under s 68C of the Supreme Court Act 1933. As, in final submissions, I was not called on to do so, I do not propose to set out at length, any particular directions that I would have given to a jury. I have read the moderately detailed directions set out by Nield AJ in R v Mulcahy [2010] ACTSC 98. I endorse and adopt them as was done by Refshauge J in R v McConchie [2010] ACTSC 137.
At the trial, I heard oral testimony from 16 witnesses. The key prosecution witness was naturally Thanh Tran. Three other witnesses were of particular importance. Rebecca Weatherill and Jason Dukic resided at the home at 28 Hillebrand Street,…
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- Case
- [2011] ACTSC 25
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the interpretation of the term "discharging a loaded firearm at another person," the credibility of the complainant's testimony, and the sufficiency of evidence to establish the appellant's motive for the alleged attempted murder. Additionally, the court had to assess whether the prosecution had proved beyond reasonable doubt that the appellant intended to cause death or grievous bodily harm to the complainant. The credibility of the complainant's account and the absence of direct evidence linking the appellant to the motive for the crime were pivotal in the court's deliberations.
In delivering the judgment, the court meticulously examined the evidence presented, including witness testimonies and the physical evidence of the crime scene. The court found that while there was insufficient evidence to prove the motive behind the alleged attempted murder, the act of discharging a loaded firearm at the complainant was clearly established. The court accepted the complainant's account as credible and reliable, which was crucial in establishing the appellant's guilt on counts related to the discharge of the firearm. Consequently, the court found the appellant guilty of the charges related to the discharge of a loaded firearm and the wounding of the complainant, while acquitting the appellant of the charge related to the absence of evidence as to motive for attempted murder.
Orders
Orders of the court
1.
A verdict of guilty be entered in respect of Counts 1 and 3 on the indictment.
2.
A verdict of not guilty be entered in respect of Count 2 on the indictment.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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