The Queen v Pham - [2015] HCATrans 218

[2015] HCATrans 218

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M82 of 2015

B e t w e e n -
THE QUEEN (CTH)
Appellant
and
VU LANG PHAM
Respondent

FRENCH CJ
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 SEPTEMBER 2015, AT 10.15 AM

MR R.J. BROMWICH, SC: May it please the Court, I appear with my learned friend, MR D.D. GURVICH, for the appellant. (instructed by Director of Public Prosecutions (Cth))

MS G.A. ARCHER, SC: May it please the Court, with MR M.D. PHILLIPS, I appear for the respondent. (instructed by Victoria Legal Aid)

FRENCH CJ: Yes, Mr Bromwich.

MR BROMWICH: Your Honours, one matter of oversight and housekeeping. Your Honours were provided with a bundle of legislation which included Part 1B of the Crimes Act 1914, but the date at which it was provided was the date of the offending, not the current version. What has been provided to the Court crier is the current version, and can I just very briefly indicate in very narrow compass what the differences are, only because my learned friend, who brought this to our attention, seeks to at least in part refer to one part of it.

The relevant difference, although it is not in terms relevant for this case, is section 16A(2)(ea) was inserted. Your Honours will see that refers to victim impact statements, which was, of course, not a feature of this case, but as part of that there were two new sections introduced; section 16AAA, which provides for the victim impact statements, and section 16AB, which provides for matters relating to victim impact statements. But I apprehend my friend will simply be saying that was not referred to because it had no application, but I apologise, your Honours.

FRENCH CJ: Yes, all right, thank you.

MR BROMWICH: Your Honours, I apprehend that I will be fairly economical in what I have to say because we do not have a lot, at least in our argument in‑chief, to say differently from what is in our written submissions. The issue of principle it seems in dispute between the parties is as to the role of intermediate appeal court decisions in federal sentencing and in federal sentencing appeals. Your Honours would have been provided with an outline of oral submissions which I will not slavishly read but I will use that as a form of a guidepost.

In a sense it is trite to say that reasonable consistency nationwide in federal sentencing is important to ensure, so far as possible, that like cases are treated as like and that the administration of federal criminal justice is systematically fair. The question then really is as to how that is best to be achieved and what has previously been said by this Court on that topic and what is to be made of what this Court has said…

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 The Queen v Pham

Details

AGLC: The Queen v Pham [2015] HCATrans 218
Case: [2015] HCATrans 218
Decision Date

CaseChat Overview and Summary

The Queen prosecuted Mr. Pham in the Supreme Court of Queensland, where he was convicted of trafficking in dangerous drugs. Mr. Pham appealed his conviction to the High Court of Australia, arguing that the trial judge had erred in admitting certain evidence.

The central legal issue before the High Court was whether the evidence of Mr. Pham's prior convictions, which had been admitted at trial, was unfairly prejudicial to him and therefore inadmissible under section 97 of the Uniform Evidence Law (Qld). Specifically, the court had to consider whether the probative value of the evidence, in demonstrating a propensity to traffic in dangerous drugs, was outweighed by the danger of unfair prejudice to Mr. Pham.

The High Court allowed the appeal, quashing Mr. Pham's conviction. The majority of the court held that the evidence of prior convictions was improperly admitted. They reasoned that while the prior convictions might have had some relevance to propensity, their prejudicial effect was substantial, particularly given the similarity of the prior offences to the offence charged. The court emphasised that the admission of such evidence should be approached with caution, and that the onus is on the prosecution to demonstrate that the probative value clearly outweighs the prejudicial effect. The court found that this onus had not been discharged in this instance.

Consequently, the High Court ordered that the conviction be set aside and that a new trial be held.

Orders