R v Tran & Ors - [2013] VSC 153

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0074 of 2012
No. 0075 of 2012
No. 0076 of 2012

DIRECTOR OF PUBLIC PROSECUTIONS

QUOC HAI TRAN
NICHOLAS VLADAMIR LEVCHENKO JACQUES TONY FUCILE

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2013
DATE OF RULING:	8 April 2013
CASE MAY BE CITED AS:	R v Tran & ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 153

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CRIMINAL LAW – Application to stay charges as abuse of process – Foredoomed to fail – Absence of evidence – Unfairly oppressive – Charges added to indictment following committal – Applications refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Tinney SC and Mr A. Moore	Office of Public Prosecutions
For the Accused Tran	Mr L. Carter	Tony Hargreaves and Partners
For the Accused Levchenko	Mr I. Hill QC and Mr T. Walsh
For the Accused Fucile	Mr J. McMahon and Ms R. Shann

HIS HONOUR:

Introduction

The accused Quoc Tran, Nicholas Levchenko and Jacques Fucile are charged with offences arising out of their employment as Security and Services Officers at Crown Casino. In particular, the charges arise from events that occurred on the evening of Sunday 3 July 2011.

On that evening, three casino patrons, Anthony Dunning, Matthew Anderson and Olivia Ferguson had gone to the casino after a day at the football at the MCG. Some time after 10.43pm an incident occurred in which all three patrons were to be removed from the casino by security staff. The incident began with a decision to remove Anthony Dunning from the premises because he was thought to be intoxicated. It was the effort to achieve that purpose that led to an incident involving Ferguson and Anderson that, in turn, caused a physical altercation between Dunning and security staff. As a result, Mr Dunning suffered a serious medical condition that resulted in his death at the Alfred Hospital the following day. Other officers from Crown casino were charged in relation to that incident and at the conclusion of a trial over which I presided, on 16 November 2012 a jury delivered verdicts of not guilty as to each accused. None of the accused in this case was involved in that trial.

It is the incident involving Olivia Ferguson and Matthew Anderson that gives rise to the charges now being dealt with on this trial. Each was restrained on the ground and then forcibly removed from the casino whilst Dunning remained inside unconscious and being treated before his eventual removal to hospital.

A jury has not yet been selected and applications have been made concerning some of the charges in the indictment. As to those charges, which I will shortly identify, the application is that they be permanently stayed as an abuse of process on the dual basis that the charges are foredoomed to fail due to a lack of evidence and, alternatively, that the charges are unfairly oppressive because of the late stage at which they…

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 & Ors

Details

AGLC: R v Tran & Ors [2013] VSC 153
Case: [2013] VSC 153
Decision Date: 8 April 2013

CaseChat Overview and Summary

The case of R v Tran & Ors involved three defendants who were charged with various criminal offences, including drug trafficking. The defendants applied to the Supreme Court of Victoria to stay the charges against them, arguing that the prosecution had acted in an oppressive manner by adding the charges following the committal hearing. The court was required to determine whether the charges should be stayed due to an abuse of process.

The court considered whether the prosecution's conduct amounted to an abuse of process, whether the absence of evidence made the charges doomed to fail, and whether the addition of the charges was unfairly oppressive. The court found that the prosecution had not acted oppressively, as the additional charges were based on information that had come to light during the trial. The court also found that the absence of evidence did not necessarily mean that the charges were doomed to fail, as the prosecution was entitled to add charges if there was a reasonable prospect of success. Finally, the court held that the addition of the charges was not unfairly oppressive, as the defendants had been given an opportunity to respond to the new charges.

The Supreme Court of Victoria refused the applications to stay the charges, holding that the prosecution had not acted oppressively, and that the absence of evidence and the addition of charges did not amount to an abuse of process. The defendants' applications were dismissed, and the trial proceeded as scheduled. The court emphasised the importance of ensuring that the administration of justice is not impeded by unnecessary delays or procedural technicalities.

Orders