R v Phoung Viet Nguyen

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 (2^nd ed, 1992)
The Oxford English Dictionary (2^nd 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:

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.

3.           

1. 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.           

2. 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.

3. 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,…