R v Tiet

Case [2002] WASC 17 12 February 2002

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R -v- TIET & ORS [2002] WASC 17

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 17
Case No:	INS:66/2001	Heard:	7 FEBRUARY 2002
Coram:	MURRAY J	Delivered:	12/02/02
No of pages:	9	Judgment Part:	1 of 1
Result:	Ruling given
Category:	B
PDF Version

Parties:	THE QUEEN AN VAN TIET GIANG THANH TIET HO THANH TIET TUOI VAN TIET AARON TRUONG LOUIS LE HOANG PHI TRAN TEO VAN PHAM THANH PHONG NGUYEN JOSEPH CONDELLI JONATHON PERSIVAL O'DRISCOLL DANIEL FRANK HEARNE
Catchwords:	Criminal law and procedure Indictment charging attempted murder and unlawful wounding with intent to do grievous bodily harm in the alternative Application to case of Criminal Code (WA), s 7, s 8
Legislation:	Criminal Code, s 7, s 8
Case References:	Alister v R (1984) 154 CLR 404 Markby v R (1978) 140 CLR 108 Mason v R (1995) 15 WAR 165 McAuliffe v R (1995) 183 CLR 108 Nguyen v The Queen [2001] WASCA 176 R v Barlow (1997) 188 CLR 1 Saunders v R [1980] WAR 183 Stuart v R (1974) 134 CLR 426 Ward v R (1997) 19 WAR 68 Warren & Ireland v R [1987] WAR 314 Beck v The Queen [1991] 1 Qd R 30 Director of Public Prosecutions v Stonehouse [1978] AC 55 Johns v The Queen (1980) 143 CLR 108 Knight v The Queen (1992) 175 CLR 495 R v Betty (1963) 48 Cr App R 6 R v Grimwood (1962) 3 All ER 285 R v Lovesey [1970] 1 QB 352 R v Mohan [1976] QB 1 R v Smith [1963] 1 WLR 1200 R v Whybrow (1951) 35 Cr App R 141

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : R -v- TIET & ORS [2002] WASC 17 CORAM : MURRAY J HEARD : 7 FEBRUARY 2002 DELIVERED : 12 FEBRUARY 2002 FILE NO/S : INS 66 of 2001 BETWEEN : THE QUEEN

AND

AN VAN TIET

GIANG THANH TIET

HO THANH TIET

TUOI VAN TIET

AARON TRUONG

LOUIS LE

HOANG PHI TRAN

TEO VAN PHAM

THANH PHONG NGUYEN

JOSEPH CONDELLI

JONATHON PERSIVAL O'DRISCOLL

DANIEL FRANK HEARNE

Catchwords:

Criminal law and procedure - Indictment charging attempted murder and unlawful wounding with intent to do grievous bodily harm in the alternative - Application to case of Criminal Code (WA), s 7, s 8

Legislation:

Criminal Code, s 7, s 8

(Page 2)

Result:

Ruling given

Category: B

Representation:

Counsel:

Crown : Mr P D Yovich & Ms A L Forrester

Accused A V Tiet : Mr R M Utting

Accused G T Tiet : Mr R W Keeley

Accused H T Tiet : Mr R G W Bayly

Accused T V Tiet : Ms L Boston

Accused A Truong : Mr S V Smith

Accused L Le : Mr P J Hogan

Accused H P Tran : Mr M R Hall

Accused T V Pham : Mr P Heywood

Accused T P Nguyen : Mr J D Hawkins

Accused J Condelli : Mr…

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 Tiet

Details

AGLC: R v Tiet [2002] WASC 17
Case: [2002] WASC 17
Decision Date

CaseChat Overview and Summary

The case of R v Tiet et al, heard in the Supreme Court of Western Australia, involves an indictment charging the accused with attempted murder and unlawful wounding with intent to do grievous bodily harm in the alternative. The accused were seeking a ruling on various legal issues arising from statements made in the opening address of the Crown prosecutor. The primary legal issues the court had to decide were whether the Crown could rely on both sections 7 and 8 of the Criminal Code (WA) to establish the criminal complicity of secondary offenders and whether the Crown must prove that the secondary offender had the requisite intent to establish guilt if that person had been a principal offender.

In its reasoning, the court determined that there was no merit in the submission that the Crown must elect on which basis it puts the case to the jury. The court held that it was not legally inconsistent for the Crown to rely on both sections. The state of mind relevant to the application of sections 7 and 8 would be different. The court explained that an offence is committed when a person performs all the acts and/or omissions which constitute the physical elements of the offence, and if a specific intention is defined as an element of the offence, then the act or omission must be performed with that intention. The court concluded that the proper operation of section 8 of the Code flows directly from the wording of section 8(1), which requires that two or more persons form a common intention to prosecute an unlawful purpose, and an offence is committed which is a probable consequence of the prosecution of that purpose. The court held that the commission of the offence in question need not be contemplated at all by the secondary offender, but the relevant state of mind for that offender is the establishment of the common intention of which the section speaks.

Orders