R v Trieu

Case [2008] QCA 28

SUPREME COURT OF QUEENSLAND

CITATION:

R v Trieu [2008] QCA 28

PARTIES:

R
v
TRIEU, Binh
(applicant/appellant)

FILE NO/S:

CA No 119 of 2007
DC No 1665 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction
Sentence Application

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 February 2008

DELIVERED AT:

Brisbane

HEARING DATE:

6 February 2008

JUDGES:

de Jersey CJ, McMurdo P and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal against conviction dismissed
2. Application for leave to appeal against sentence refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS – MISDIRECTION AND NON-DIRECTION – GENERAL MATTERS – where applicant/appellant was convicted of doing grievous bodily harm – where defence counsel at trial urged trial judge to leave self-defence under s 271(2) Criminal Code Act only to the jury and not leave self-defence under s 271(1) – where neither counsel suggested the defence of accident should be left to the jury – where trial judge left both limbs of s 271 to the jury – where both defences fairly raised on the evidence – whether the conviction was unsafe and unsatisfactory – whether trial judge erred in leaving self-defence under s 271(1) to the jury – whether this required the defence of accident under s 23(1)(b) Criminal Code to be left to the jury

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – PARTICULAR MATTERS – CONTROL OF PROCEEDINGS – where witness favourable to applicant/appellant was not available at trial and written statement read out to the court in lieu – where defence counsel contended that statement should be available to the jury in the jury room – where trial judge reasoned that leaving statement with jury may cause the jury to give it undue weight – whether conviction was unsafe and unsatisfactory – whether trial judge erred in not leaving written statement with jury

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN GRANTED – PARTICULAR OFFENCES – OFFENCES AGAINST THE PERSON – where applicant/appellant sentenced to five years imprisonment with no recommendation for parole – where applicant/appellant caused grievous bodily harm by hitting the complainant with a meat cleaver – where complainant suffered serious injury which required surgery and suffered permanent nerve damage – where applicant/appellant did not cooperate with the administration of justice and showed no evidence of remorse – where trial judge assumed jury's verdict was based on applicant/appellant not acting in self defence as opposed to using excessive force - where applicant/appellant contended that his incarceration was having an adverse impact on his de facto partner and children – whether trial judge proceeded on the basis of…

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AGLC
R v Trieu [2008] QCA 28
Case
[2008] QCA 28
Decision Date

CaseChat Overview and Summary

The applicant, Trieu, appealed against his conviction for grievous bodily harm and his sentence. The applicant had been convicted of hitting the complainant with a meat cleaver, resulting in serious injury and permanent nerve damage. The trial judge had left both self-defence under s 271(1) and s 271(2) of the Criminal Code Act to the jury, despite the defence counsel only urging the jury to consider self-defence under s 271(2). The applicant also argued that the trial judge erred in not allowing the jury to consider a written statement from a witness favourable to the applicant. Finally, the applicant appealed against the severity of his sentence, arguing that it was manifestly excessive.

The court considered whether the trial judge erred in leaving both limbs of s 271 to the jury and whether the omission of the defence of accident under s 23(1)(b) of the Criminal Code Act rendered the conviction unsafe and unsatisfactory. The court held that both defences were fairly raised on the evidence and that the trial judge did not err in leaving both limbs of s 271 to the jury. The court also found that the trial judge did not err in not allowing the jury to consider the written statement from the witness, as leaving the statement with the jury may have caused them to give it undue weight. Finally, the court found that the sentence was not manifestly excessive, given the seriousness of the offence and the lack of cooperation and remorse shown by the applicant.

The appeal against the conviction was dismissed. The court found that the trial judge did not err in leaving both limbs of s 271 to the jury and that the omission of the defence of accident did not render the conviction unsafe and unsatisfactory. The application for leave to appeal against sentence was also refused. The court found that the sentence was not manifestly excessive, given the seriousness of the offence and the lack of cooperation and remorse shown by the applicant.

Orders

Orders of the court

1. Appeal against conviction dismissed

2. Application for leave to appeal against sentence refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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