R v Van Bao Nguyen - [2002] NTSC 38

The Queenv Van Bao Nguyen [2002] NTSC 38
PARTIES:THE QUEEN
v
VAN BAO NGUYEN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL
FILE NO:20018131
DELIVERED:  18 JUNE 2002
HEARING DATES:  4, 5, 6 and 7 JUNE 2002
JUDGMENT OF:  ANGEL J

CATCHWORDS:
CRIMINAL LAW – CRIMINAL LIABILITY – aggravated assault - defence of property – defence of moveable property against a trespasser – meaning of “peaceable possession” – whether driver of a vehicle on a public highway under influence of an intoxicating substance was in “peaceable possession” of vehicle – defence not to be put before jury
Words and Phrases – “peaceable possession”
Criminal Code NT s 27(d), (h)
Kennedy v Kuzma (unreported SC WA 1149/1993, 3 December 1993), McConnell v Chief Constable of the Greater Manchester Police [1990] 1 All ER 423, R v Chief Constable of Devon and Cornwall [1981] 3 All ER 826, approved.
Gollan v Nugent (1988) 166 CLR 32, considered.
R v Howell [1981] 3 All ER 383, questioned.
REPRESENTATION:
Counsel:
Crown:Mr R Noble
Accused:Ms H Spowart
Solicitors:
Crown:Office of the Director of Public Prosecutions
Respondent:  NT Legal Aid Commission
Judgment category classification:           B
Judgment ID Number:  ang200205
Number of pages:  8

IN SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Van Bao Nguyen [2002] NTSC 38

(20018131)
BETWEEN :

THE QUEEN

v

VAN BAO NGUYEN

REASONS FOR RULING
(Delivered 18 June 2002)
ANGEL J:

These are my reasons for a ruling on 6 June 2002 during the trial of the accused on a number of charges, when at the conclusion of evidence I declined to permit counsel for the accused to put certain matters of defence before the jury with respect to a charge of aggravated assault.
The relevant provisions of the Criminal Code NT are those in the now repealed s 27, which provides:
“27.Circumstances in which force not being such force as is likely to cause death or grievous harm is justified.
In the circumstances following, the application of force is justified provided it is not unnecessary force and it is not intended and is not such as is likely to cause death or grievous harm:
…..
(g) to defend one’s self or to defend another;
(h)in the case of a person who is in peaceable possession of any moveable property, or a person acting by his authority, to resist the taking of such property by a trespasser or to retake it from him, provided he does not intentionally do him bodily harm;”
That section was repealed and replaced by a new section 29 (see Criminal Code Amendment Act 2001 No. 1, which commenced on 26 September 2001). However, as the alleged offence occurred on 11 November 2000 and as the repealing legislation is substantive rather than procedural and not expressed to be retrospective, the presumption against retrospectivity operates to make s 27 the applicable law in this case.
The undisputed facts surrounding the alleged offence of assault are that in the…

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 Van Bao Nguyen

Details

AGLC: R v Van Bao Nguyen [2002] NTSC 38
Case: [2002] NTSC 38
Decision Date: 18 JUNE 2002

CaseChat Overview and Summary

The case of R v Van Bao Nguyen involved the defendant, Van Bao Nguyen, who was charged with aggravated assault against a police officer. The dispute arose from an incident in which Nguyen, while driving under the influence of alcohol and drugs, collided with a police car while attempting to flee from a traffic stop. The matter was heard in the Supreme Court of Victoria. The legal issues the court had to address were whether the term "peaceable possession" in the context of the defence of property included a vehicle on a public highway and whether Nguyen was in "peaceable possession" of his vehicle given his state of intoxication.

The court examined the meaning of "peaceable possession" and considered whether it could extend to a person who was not in a state of sobriety. The court found that the term "peaceable possession" traditionally referred to a peaceful and lawful possession of property. The court concluded that Nguyen, being under the influence of an intoxicating substance, was not in a position to be considered in "peaceable possession" of his vehicle. Therefore, the defence of property could not be put before the jury in this instance.

The court ruled that since Nguyen was not in "peaceable possession" of his vehicle due to his intoxication, the defence of property was not available to him. Consequently, the court dismissed the defence of property as a potential defence for the aggravated assault charge against Nguyen. The final outcome of the case was that the charge of aggravated assault against a police officer was not mitigated by the defence of property, and the matter proceeded to trial on the original charge.

Orders