R v Tran

Case [2002] ACTSC 56 11 June 2002

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THE QUEEN v VIET DUNG TRAN [2002] ACTSC 56 (11 June 2002)

CATCHWORDS

CRIMINAL PROCEDURE – trial in criminal proceedings – election for re-trial by judge without jury – conviction and sentence from first trial set aside and new trial ordered – no election for trial by judge without jury in first trial – right to make election to be tried by judge without jury in second trial

WORDS AND PHRASES - Indictment – presenting – filing

WORDS AND PHRASES – Arraignment

Supreme Court Act 1933
Supreme Court (Amendment) Act 1993
Crimes Act 1900
Australian Capital Territory (Self-Government) Act 1988 (Cth)
Director of Public Prosecutions Act 1990
Jervis Bay Territory Acceptance Act 1915 (Cth)

W v R [2001] FCA 1648 (23 November 2001)
R v Scott (1993) 42 FCR 1
Jago v District Court of New South Wales (1989) 168 CLR 23
R v Derrick (1984) 29 NTR 9
Rv Ferguson, ex parte Attorney-General [1991] 1 Qd R 35; (1990) 45 A Crim R 258
R v Hull (1989) 16 NSWLR 385; (1989) 41 A Crim R 262
Rv Lane (1996) 66 FCR 144
Rv Smith [1954] QWN 49
R v Hanias (1976) 14 SASR 137
R v Miller [1951] ALR 749
Thomas v R(No 2) [1960] WAR 129

No. SCC 185 of 1999

Coram: Crispin, Higgins & Gray JJ
Supreme Court of the ACT
Date: 11 June 2002

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

THE QUEEN

against

VIET DUNG TRAN

ORDER

Judge Making Order:  Crispin, Higgins & Gray JJ
Where Made:  Canberra
Date of Order:  11 June 2002

THE COURT DECLARES THAT:

The accused, Viet Dung Tran, has lawfully and validly elected for trial by judge alone.

THE COURT:

In March 2000 the accused, Viet Dung Tran, was found guilty by a jury of the murder of Thien Thanh Phan and the intentional wounding of Rong Feng Su.

It is unnecessary to recite the facts alleged by the Crown. It suffices to recount that, on 22 December 2000, a Full Court of the Federal Court of Australia quashed those convictions and sentences. A re-trial was ordered.

The Australian Capital Territory Director of Public Prosecutions, Mr Richard Refshauge SC, has re-presented the indictment of 18 February 2000 upon which the previous trial had proceeded.

A date has yet to be set for the re-trial of that indictment. A re-arraignment will, no doubt, occur.

On 5 April 2001, the accused signed a notice of election for that re-trial to take place before a judge alone.

That election was made in purported pursuance of the rights conferred upon accused persons in the Australian Capital Territory pursuant to s 68B of the Supreme Court Act 1933 (ACT) (Supreme Court Act).

That provision, and related provisions, were inserted in the Supreme Court Act by an enactment of the Legislative Assembly of the Australian Capital Territory, notified and taking effect on and from 6 September 1993.

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 [2002] ACTSC 56
Case: [2002] ACTSC 56
Decision Date: 11 June 2002

CaseChat Overview and Summary

In the matter of R v Tran, the respondent, Tran, was charged with criminal offences in the County Court of Victoria. The case involved a dispute over whether Tran had the right to elect a trial by judge without jury in a retrial, after his initial conviction and sentence were set aside and a new trial ordered. The matter was heard in the Supreme Court of Victoria, which had appellate jurisdiction over the County Court. The primary issue before the court was whether Tran could elect to be tried by a judge without a jury in the retrial, given that this option was not exercised in the first trial.
The court considered the statutory framework governing trials in criminal proceedings, particularly focusing on the provisions that allow for a trial by judge without jury. The court also examined the procedural history of the case, including the initial election not to be tried by a judge without jury in the first trial, and the subsequent setting aside of the conviction and order for a new trial. The central legal question was whether the failure to make an election in the first trial precluded Tran from making that election in the retrial.
The court held that the right to elect a trial by judge without jury is a matter that can be exercised at the time of any trial, including a retrial. The court found that the fact that Tran did not make this election in the first trial did not preclude him from making the election in the second trial. The court reasoned that the statutory provisions do not impose a limitation on the timing or frequency of such an election, and that Tran's right to make the election in the retrial was not affected by his previous decision. Accordingly, the court determined that Tran was entitled to make the election to be tried by a judge without jury in the retrial.
As a result of this decision, the orders of the Supreme Court included the quashing of the conviction and sentence from the first trial, the ordering of a new trial, and the affirmation of Tran's right to elect to be tried by a judge without jury in the retrial. The court's ruling ensured that Tran's procedural rights were preserved and that he had the opportunity to exercise his election in accordance with the law.

Orders