R v Tran

[2007] NSWDC 131

CITATION:	R v Tran [2007] NSWDC 131
HEARING DATE(S):	26/04/07
JUDGMENT DATE:	26 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Norrish QC DCJ
DECISION:	See paragraph 39.
CATCHWORDS:	Criminal Law - Evidence - Application to exclude out of court representations of co-accused in agreed statement of facts - s65 Evidence Act.
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Regina v Suteski [2002] NSWCCA 509 Ordukaya v Hicks [2000] NSWCA 180
PARTIES:	Regina Cong Khanh Tran
FILE NUMBER(S):	06/11/0824
COUNSEL:	Mr Magnus - Crown Mr Lakatos - Offender

JUDGMENT

Application to exclude out of court representations by Giac Nguyen.

1 HIS HONOUR: In relation to the first application of the accused Cong Khanh Tran, that evidence of reported out of court representations made by Giac Nguyen sought to be relied upon by the Crown be excluded, I propose to grant that application and order that those purported representations be not admitted in any forthcoming trial in relation to Mr Tran. I will give my reasons now for coming to that conclusion.

2 Cong Khanh Tran was today arraigned on a charge alleging that he, on or about 25 November 2004 at Belmore in the state of New South Wales, supplied a prohibited drug namely heroin, being an amount not less than the commercial quantity for that drug. On arraignment the accused pleaded not guilty. Thereafter followed what could be called a voir dire examination to determine the admissibility of representations purportedly made by Giac Nguyen prior to the commencement of these proceedings in an Agreed Statement of Facts that were tendered at Mr Nguyen’s sentencing proceedings. The Agreed Statement of Facts constitutes Exhibit 1 in these proceedings, however it became apparent after a short period of time that the Crown did not intend to rely upon all of the contents of that Agreed Statement of Facts. I shall shortly refer to the material sought to be relied upon by the prosecution. I point out that the “Agreed Statement of Facts” is dated 25 September 2006. At the bottom of the fourth page are purportedly the signatures of Mr Nguyen, who I shall hereinafter refer to as the “Co-accused”, a solicitor by the name of Michael Croke, and a Detective Senior Constable of Police of the New South Wales Police Force, Detective Senior Constable Gary Lowe. The Agreed Statement of Facts was tendered by the prosecution in the prosecution of the co-accused and as I understand it, and it is not disputed, it was relied upon by the learned sentencing judge for the purposes of sentencing Mr Nguyen. I point out that it would appear on the Agreed Statement of Facts I have that the co-accused was facing an additional charge other than a charge related to the matter upon which Mr Tran has been arraigned in this court today.

3 The relevant charge concerning the co-accused to the current proceedings would appear to be that described as “Count 2” in the Agreed Statement of Facts. The Agreed Statement of Facts has a…