R v Phung - [1999] VSCA 195

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 27 of 1999

THE QUEEN
v
QUOC KINH PHUNG

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JUDGES: BROOKING, CHARLES and BUCHANAN, JJ.A.
WHERE HELD: MELBOURNE
DATES OF HEARING: 13 and 14 October 1999
DATE OF JUDGMENT: 1 December 1999
MEDIA NEUTRAL CITATION: [1999] VSCA 195

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CRIMINAL LAW – Application for legal assistance – s.360A Crimes Act 1958 – Triable issue test incompatible with fair trial – Miscarriage of justice.
SECTION 360A Crimes Act 1958 – Validity.

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APPEARANCES: Counsel Solicitors
For the Crown Mr P.A. Coghlan, Q.C. P.C. Wood, Solicitor for
Public Prosecutions
For the Applicant Mr P.G. Nash, Q.C. and Kuek & Associates
Mr D. Perkins
Amicus Curiae Mr D. Grace, Q.C. Law Institute of Victoria
Amicus Curiae Dr D.J. Neal Victorian Legal Aid

BROOKING, J. A.:

The circumstances out of which this application arises appear from the judgment of Buchanan, J.A.
Section 360A of the Crimes Act 1958 is peculiar to Victoria. In the first five years or so of its operation only 39 applications under it were made: Victoria Legal Aid v. B. [1998] VSCA 56 at [12]. We were told that up to the present time an application has been refused because there was no "triable issue" in only five cases. The origin of the "triable issue" test is the decision of Chief Judge Waldron in R. v. Drljaca, given on 12 November 1993, where, on an application under the section, his Honour said this (the emphasis is mine):
"… The critical question to be answered therefore is what is meant by the words that 'it (the court) will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial'. In my judgment, subject to any authority to the contrary, when coming to answer that question the court must decide whether there is some triable issue. In a situation where an accused raises no triable issue but simply wishes to put the Crown to its proof in the hope that at trial that proof may in some way or other be deficient, it cannot in my view be said that the accused will not receive a fair trial unless he be legally represented in the trial.
In my judgment, it is a very different thing to say on the one hand that an accused person requires legal representation in order to obtain a fair trial where there is a contest on the facts, albeit that the Crown case is a very strong one, and on the other hand, where an accused offers no positive defence and raises no triable issue, to say that the court cannot ensure that an accused will receive a fair trial unless he is legally represented in order simply to put the Crown to its proof.
Is, however, the drawing of such a distinction consistent with the decision in Dietrich? The High Court in that case was of course determining, in…

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 Phung

Details

AGLC: R v Phung [1999] VSCA 195
Case: [1999] VSCA 195
Decision Date: 1 December 1999

CaseChat Overview and Summary

In the case of R v Phung, the respondent sought legal assistance from Vietnam in connection with criminal proceedings against him in Australia. The application was made under section 360A of the Crimes Act 1958. The primary dispute centred on the compatibility of the application with Vietnam's fair trial obligations under international law, specifically the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The central legal issues for the court to decide were whether the application for legal assistance was compatible with Vietnam's obligations under the Convention and whether proceeding with the application would risk a miscarriage of justice due to the potential for unfair treatment of the respondent. The court had to determine whether the 'triable issue' test, which was part of the application, aligned with Vietnam's fair trial commitments and whether the application could be made without contravening these international obligations.

The court held that the 'triable issue' test as applied in the Australian application was incompatible with Vietnam's fair trial obligations under the Convention. This incompatibility arose because the test permitted the use of evidence obtained through torture or other forms of ill-treatment, which contravened Vietnam's obligations to prevent such treatment. Furthermore, the court found that proceeding with the application risked a miscarriage of justice due to the high likelihood that the respondent would be subjected to unfair treatment if returned to Vietnam. Consequently, the court rejected the application for legal assistance on the grounds that it would contravene Vietnam's fair trial obligations and risk a miscarriage of justice.

The final orders of the court included a refusal to grant the application for legal assistance to Vietnam and a direction that the respondent's case be reviewed in light of the decision. The court also noted the importance of considering the respondent's rights and the obligations of both countries under international law when making such applications in the future.

Orders