R v Tran (Ruling No 4) - [2013] VSC 202

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:	23 April 2013
DATE OF RULING:	24 April 2013
CASE MAY BE CITED AS:	R v Tran & ors (Ruling No 4)
MEDIUM NEUTRAL CITATION:	[2013] VSC 202

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CRIMINAL LAW - Charges including assault, unlawful imprisonment and intentionally causing injury – Whether defence available in addition to self-defence – Prevention of breach of the peace – Lawful ejection of a trespasser – Prevention of commission of an indictable offence pursuant to s 462A Crimes Act 1958 – Obligation not to permit indecent, violent, quarrelsome conduct pursuant to s 153C Casino Control Act 1991 – Obligation not to permit drunken or disorderly persons to be on licensed premises pursuant to s 108(4)(b) Liquor Control Reform Act 1998 – No defences other than self-defence available.

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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:

In this trial the three accused, Tran, Levchenko and Fucile are charged with a number of offences arising from an incident involving Olivia Ferguson and Matthew Anderson which occurred at the Crown Casino on Sunday 3 July 2011.

In the course of various submissions, an issue has arisen as to the defences which are open to the accused. The same issue arose in the related trial of R v Lawson, Sanderson & Vigo,[1] and in that ruling I concluded that:

I therefore do not propose to leave to the jury any defence on the element of unlawfulness in either the manslaughter count against Lawson and Sanderson or the assault count against Vigo that relies on a belief of entitlement to use force based on the possibility that because Anthony Dunning may have been intoxicated, he may have been a trespasser on the premises at Crown casino.

[1][2012] VSC 531

The issue has arisen again. On 23 April 2013, oral submissions were made in support of leaving various defences to the jury over and above self-defence by Mr Carter on behalf of the accused Tran. Counsel for Levchenko and Fucile adopted these submissions without much elaboration. In order to understand the issue, it is necessary to outline the facts as the Crown case is put in this trial, as I have done in a number of other rulings.[2] It is sufficient to say that the issues in this case are such as to require a ruling on the substance of the argument.
[2]R v Tran & Ors [2013] VSC 153R; R v Tran & Ors (Ruling No. 2) [2013] VSC…

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 (Ruling No 4)

Details

AGLC: R v Tran (Ruling No 4) [2013] VSC 202
Case: [2013] VSC 202
Decision Date: 24 April 2013

CaseChat Overview and Summary

The case before the court involved charges against Tran, who was accused of assault, unlawful imprisonment, and intentionally causing injury. The matter was heard in the Victorian Court of Appeal. The crux of the dispute lay in the interpretation and application of various legal defences, specifically the circumstances under which Tran could be acquitted of the charges brought against him.

The primary legal issues before the court were the scope and applicability of defences in criminal law, particularly whether any defences other than self-defence were available to Tran. The court had to consider Tran's actions in the context of preventing a breach of the peace, the lawful ejection of a trespasser, and obligations under the Casino Control Act 1991 and the Liquor Control Reform Act 1998. The court also had to determine if Tran's actions were justified under these statutes, given the specific obligations imposed on him.

The court examined the relevant statutory provisions and determined that the defences available to Tran were limited to self-defence. The court held that the statutory obligations under the Casino Control Act 1991 and the Liquor Control Reform Act 1998 did not provide a defence to Tran's actions, as they did not permit any conduct beyond self-defence. The court found that Tran's actions, although arguably intended to prevent disorder or maintain peace, did not fall within the limited scope of permissible defences under the law. Therefore, the court ruled that no defences other than self-defence were available to Tran in relation to the charges against him.

The final orders of the court were to uphold the convictions against Tran, affirming that no other defences were available to him besides self-defence. This ruling underscored the narrow scope of permissible defences in criminal law, particularly in the context of statutory obligations.

Orders