R v Tran

Case [2003] ACTSC 53 27 June 2003

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THE QUEEN v VIET DUNG TRAN
[2003] ACTSC 53 (27 June 2003)

CRIMINAL LAW – trial by judge – murder – intentionally wound – self defence – whether accused believed that his actions were necessary in order to defend himself and that he had reasonable grounds to hold that belief.

EVIDENCE – hostile witness – prior inconsistent statement – Evidence Act 1995, ss 38, 60.

EVIDENCE – availability of witness – whether all reasonable steps had been taken to secure attendance of a witness - Evidence Act 1995, s 65.

EVIDENCE – availability of witness – whether witness not competent to give evidence about fact - Evidence Act 1995, s 65

Supreme Court Act 1933 (ACT), s 68C

Crimes Act 1900 (ACT), s 13

Evidence Act 1995 (Cth), ss 13, 65, 67, 135-147, 192, cl 4 Part 2 of the Dictionary

R v Tran (2000) 118 A Crim R 218

R v Tran (2002) 130 A Crim R 385

Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645

R v Nguyen (1995) 36 NSWLR 397

R v Adam (1999) 47 NSWLR 267

Adam v The Queen (2001) 207 CLR 96

Glen William Conlon (1993) 69 A Crim R 92

Report on Evidence, ALRC Report No 26 Vol 1 par 239, 242

No SCC 185 of 1999

Judge: Gray J
Supreme Court of the ACT
Date: 27 June 2003

IN THE SUPREME COURT OF THE       )
  )          No SC 185 of 1999
AUSTRALIAN CAPITAL TERRITORY    )

THE QUEEN
v

VIET DUNG TRAN

ORDER

Judge:  Gray J
Date:  27 June 2003
Place:  Canberra

THE COURT FINDS:

The accused not guilty in respect of both charges contained in the indictment.

The accused was tried before me on two counts. First, that on the 6^th day of April 1999 at Canberra in the Australian Capital Territory he murdered Thien Thanh Phan. Secondly, that on the 6^th day of April 1999 at Canberra he intentionally wounded Rong Feng Su. The accused had previously been tried and convicted by a jury of these charges on 1 March 2000. His appeal against those convictions was successful and on 22 December 2000 the Full Court of the Federal Court ordered a retrial (R v Tran (2000) 118 A Crim R 218).

On this retrial the accused has elected to be tried by Judge alone. The Full Court of this Supreme Court has held that election to be lawful and valid (R v Tran (2002) 130 A Crim R 385).

The requirements for trial by judge alone are set out in s 68C of the Supreme Court Act 1933 (ACT). Sitting as a Judge alone I may make any finding that could have been made by a jury as to the guilt of an accused person and any such finding has the same effect as a verdict of a jury. I must include in my judgment the principles of law that I apply and the findings of fact upon which I…

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 Tran

Details

AGLC: R v Tran [2003] ACTSC 53
Case: [2003] ACTSC 53
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard a retrial of the accused, Viet Dung Tran, on charges of murder and intentional wounding. The accused had previously been convicted by a jury on both counts, but his appeal against those convictions was successful, leading to a retrial ordered by the Full Court of the Federal Court. The accused elected to be tried by the judge alone, a decision upheld by the Full Court of the Supreme Court. The judge, Gray J, found the accused not guilty on both charges, concluding that the accused acted in self-defence and that his response to the attack was proportionate to the threat perceived. The judge considered the evidence, including the testimony of witnesses and the circumstances surrounding the incident, to determine that the accused reasonably believed he was defending himself and had grounds to hold that belief. The judge emphasized the importance of considering the whole of the evidence and the accused's predicament when assessing the proportionality of the force used in self-defence.

Orders