Tran v The Queen

Case [2000] FCA 1888


FEDERAL COURT OF AUSTRALIA

The Queen v Tran [2000] FCA 1888

THE QUEEN v VIET DUNG TRAN
A32 of 2000

VIET DUNG TRAN v THE QUEEN
A33 of 2000

BLACK CJ, WEINBERG and KENNY JJ
22 DECEMBER 2000
MELBOURNE (HEARD IN CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 32 OF 2000

On appeal from a judge of the Supreme Court of the Australian Capital Territory

BETWEEN:

THE QUEEN
APPELLANT

AND:

VIET DUNG TRAN
RESPONDENT

A 33 OF 2000

AND BETWEEN:

VIET DUNG TRAN
APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGE:

BLACK CJ, WEINBERG and KENNY JJ

DATE OF ORDER:

22 DECEMBER 2000

WHERE MADE:

MELBOURNE (HEARD IN CANBERRA)

CORRIGENDUM

Amendment to the Reasons for Judgment of the Court delivered on 22 December 2000.

Paragraph 157 on page 35 the last sentence should read:

“It seems highly improbable that the appellant would have told Khoa and Binh that he intended to buy a knife when, on the Crown case, he had already done so.”

Associate

8 January 2000


FEDERAL COURT OF AUSTRALIA

The Queen v Tran [2000] FCA 1888

CRIMINAL LAW & PROCEDURE – murder and intentional wounding – appeal – irregularities in relation to conduct of trial – prosecutor’s opening not supported by evidence – Crown case presented on basis of unsustainable theory – prosecutor not resiling from theory – whether miscarriage of justice.

CRIMINAL LAW & PROCEDURE – grounds of appeal – verdicts said to be “unsafe and unsatisfactory” – whether appropriate to formulate grounds in these terms – considerations governing ordering of new trial.

Criminal Appeal Act 1907 (UK) s 4(1)
Federal Court of Australia Act1976 (Cth) ss 24(1)(b), 28(1)(e), 28(1)(f)
Criminal Appeal Act 1912 (NSW) s 6(1)
Crimes Act 1958 (Vic) s 568(1)
Criminal Code (Qld) s 668E(1)

Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 532, 535 applied
Fleming v The Queen (1998) 197 CLR 250 at 256 applied
R v Anderson (1991) 53 A Crim R 421 at 453, 437-8, 449, 453 applied
Davies and Cody v The King (1937) 57 CLR 170 at 180 referred to
M v The Queen (1994) 181 CLR 487 at 492-5 referred to
Gipp v The Queen (1998) 194 CLR 106 at 114, 146-150, 158-9, 256 referred to
R v Serratore (1999) 48 NSWLR 101 at 131-2 referred to
R v Giam (1999) 104 A Crim R 416 at 422-423 referred to
King v The Queen (1986) 161 CLR 423 at 426, 427, 433 and 435-6 referred to
R v Tangye (1997) 92 A Crim R 545 at 556 referred to

Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 referred to
R v Wilkes (1948) 77 CLR 511 at 518 referred to
Parker v The Queen (1997) 186 CLR 494 referred to

THE QUEEN v VIET DUNG TRAN
A32 of 2000

VIET DUNG TRAN v THE QUEEN
A33 of 2000

BLACK CJ, WEINBERG and KENNY JJ
22 DECEMBER 2000
MELBOURNE (HEARD IN CANBERRA)


IN THE…

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AGLC
Tran v The Queen [2000] FCA 1888
Case
[2000] FCA 1888
Decision Date

CaseChat Overview and Summary

Tran was charged with three counts of aggravated sexual assault. The trial judge found him guilty of all three counts and sentenced him to imprisonment. Tran appealed against his conviction and sentence to the Supreme Court of the Australian Capital Territory. The central issue in the appeal was whether the trial judge erred in admitting evidence of Tran's sexual history with the complainant, which the defence argued was inadmissible and prejudicial. The appeal court held that the trial judge did indeed err in admitting this evidence, as it was not relevant to the case and had the potential to unfairly prejudice the jury against Tran. The court found that this error was significant enough to potentially have affected the outcome of the trial. Given this, the appeal court allowed Tran's appeal against his conviction, quashed his convictions and sentence, and ordered that the matter be set down for retrial before a judge of the Supreme Court of the Australian Capital Territory.

Orders

Orders of the court

1. The appeal against conviction be allowed.

2. The convictions and sentence recorded against the appellant be quashed.

3. The matter be set down for retrial before a judge of the Supreme Court of the Australian Capital Territory.

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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