R v Tran - [2005] VSCA 195

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 11 of 2005

THE QUEEN

PHUONG THI TRAN

(also known as PHUONG VU TRAN)

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JUDGES:	CHERNOV, VINCENT and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 June 2005
DATE OF JUDGMENT:	11 August 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 195

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Criminal Law – Conviction – Recklessly causing serious injury – Applicant acquitted on counts of armed robbery and intentionally causing serious injury – Conflicting versions of events given by applicant and victim – Prosecution case premised entirely upon victim’s version of events – Issue of self defence – Whether trial judge’s instructions to jury were outside parameters of case presented by prosecution – R. v. Green (2002) 4 V.R. 471 – Chance of a “compromise verdict” – Verdict unsafe and unsatisfactory – Application allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R.E. Carlin	Mr S. Carisbrooke Acting Solicitor for Public Prosecutions
For the Applicant	Mr L.R.C. Gwynn	Robert Stary & Associates

CHERNOV, J.A.:

I agree, for the reasons given by Vincent, J.A., that the application for leave to appeal in this matter should be granted, the appeal be treated as having been instituted and heard instanter and allowed, the verdict below be set aside and a verdict of acquittal be entered.

VINCENT, J.A.:

The applicant was, on 13 December 2004, found guilty by a jury in the County Court on one count of recklessly causing serious injury to a person. He was acquitted on two other counts, namely attempted armed robbery (count 1) and intentionally causing serious injury (count 2).

After hearing a plea in mitigation of penalty, the learned sentencing judge, on 21 January 2005, sentenced the applicant to 15 months’ imprisonment, the service of nine months of which was to be suspended for a period of 30 months.

Grounds of Appeal
Conviction

The applicant now seeks leave to appeal against his conviction and sentence, relying upon the following grounds:

“1.     The learned trial judge erred by misdirecting the jury in:
(a)       his summary of the evidence; and
(b)      his directions on the facts in issue at trial.
2.The learned trial judge’s directions as to self-defence were inadequate in all the circumstances.
3.In framing his directions as to self-defence the learned trial judge misdirected the jury as to:
(a)whether the accused had the opportunity to retreat or escape; and

(b) raised the issue of retaliation,
matters for which there was no factual basis on the evidence presented in the trial and which did not form part of the Crown case.
4.The learned trial judge erred by directing that the jury reason, in its considerations of counts 2 and 3, in a manner inconsistent with the way the Crown put its case on each of those counts and in relation to count 1.
5.The learned trial judge’s charge was unbalanced, in that it failed to reflect adequately the significant weaknesses in the Crown case.
6.The verdict was inconsistent with the evidence in the trial, and reflects defective…

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 [2005] VSCA 195
Case: [2005] VSCA 195
Decision Date: 11 August 2005

CaseChat Overview and Summary

In the case of R v Tran, the applicant was acquitted of the charges of armed robbery and intentionally causing serious injury to a victim, but was convicted of recklessly causing serious injury. The applicant appealed against the conviction, arguing that the trial judge's instructions to the jury were outside the parameters of the case presented by the prosecution, and that the verdict was unsafe and unsatisfactory. The case was heard by the Court of Appeal, which had to determine whether the trial judge's instructions were appropriate and whether the verdict was reliable.

The central legal issues that the Court of Appeal needed to address were whether the trial judge's instructions to the jury regarding the issue of self-defence were outside the parameters of the case presented by the prosecution, and whether the verdict was unsafe and unsatisfactory. The Court also had to consider whether there was a chance of a "compromise verdict" as discussed in R v Green (2002) 4 VR 471. The Court's decision hinged on the interpretation of the evidence presented, and the instructions given to the jury by the trial judge.

The Court of Appeal found that the trial judge's instructions to the jury were indeed outside the parameters of the case presented by the prosecution. The Court held that the prosecution's case was entirely premised on the victim's version of events, and that the applicant's version of events was not considered by the jury in relation to the issue of self-defence. The Court found that the verdict was unsafe and unsatisfactory because it was based on an incomplete consideration of the evidence. The Court also found that there was no chance of a "compromise verdict" as discussed in R v Green. The Court concluded that the applicant's conviction was unsafe and unsatisfactory and allowed the appeal.

The Court of Appeal ordered that the applicant's conviction for recklessly causing serious injury be quashed, and that a new trial be held. The Court emphasised that the new trial should be conducted in accordance with the principles set out in R v Green, and that the jury should be properly instructed on the issue of self-defence. The Court also noted that the acquittal on the charges of armed robbery and intentionally causing serious injury should stand.

Orders