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Trieu v R

Trieu v R

Case [2012] NSWCCA 169 17 August 2012

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Court of Criminal Appeal

New South Wales

Case Title: TRIEU v R

Medium Neutral Citation: [2012] NSWCCA 169

Hearing Date(s): 9 February 2012

Decision Date: 17 August 2012

Jurisdiction:

Before: McClellan CJ at CL at [1]
Johnson J at [2]
Rothman J at [3]

Decision: Leave to appeal refused.

Catchwords: CRIMINAL LAW - Appeal - trial judge refused to discharge jury - jurors raised concern about person loitering near jury exit - no miscarriage of justice - trial judge directed jury appropriately - principle discussed.

Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912

Cases Cited: Black v The Queen [1993] HCA 71, (1993) 179 CLR 44
Crofts v The Queen [1996] HCA 22; 186 CLR 427
El Hassan v R [2007] NSWCCA 148
House v The King (1936) 55 CLR 499
Maric v The Queen (1978) 52 ALJR 631
Munn & Miller [2006] NSWCCA 61
R v Glennon (1992) 173 CLR 592

Texts Cited:

Category: Principal judgment

Parties: Hy Trieu (applicant)
Regina (respondent)

Representation

- Counsel: E. Ozen (applicant)
M. Cinque (Crown)

- Solicitors: Benjamin & Leonardo Criminal Defence Lawyers (applicant)
Solicitor for Public Prosecutions (Crown)

File number(s): 2009/186152

Decision Under Appeal

- Court / Tribunal:

- Before: Berman SC DCJ

- Date of Decision: 13 August 2010

- Citation:

- Court File Number(s)

Publication Restriction:

JUDGMENT

MCCLELLAN CJ at CL: I agree with Rothman J.
JOHNSON J: I agree with Rothman J.
ROTHMAN J: The appellant, Hy Trieu, appeals his conviction on one count of robbery whilst armed with a dangerous weapon, contrary to s 97(2) of the Crimes Act 1900. Mr Trieu was convicted by a jury after a trial that lasted 7 days.
The appellant raises only one ground of appeal, being,
"That the trial judge erred in the exercise of his discretion in not discharging the jury".
The proceedings at trial, given the nature of the ground of appeal, are more relevant than the allegations concerning the appellant's conduct giving rise to the offence. Nevertheless, I will summarise the allegations that gave rise to the offence before dealing with the circumstances of the applications for the jury to be discharged.

Facts

The appellant was allegedly a co-offender with Robert McCarthy in an armed robbery on the Royal Hotel at Paddington, on 28 April 2008.
The Crown alleged that the robbery relied on the inside knowledge of another co-offender, Justin King, who was a former manager at the hotel and knew the security arrangements that were in place.
The robbers attempted to gain entry to the rear of the hotel in a laneway by pretending that they had a delivery of wine. When that ruse did not work, they waited in a vehicle in the vicinity.
Later in the morning, Mr O'Carroll (the manager) and Mr Ward (a security officer) walked out of the rear of the hotel. Mr Ward had money in his backpack.
The robbers exited the vehicle and threatened Mr Ward and Mr O'Carroll with a sawn off shotgun. Mr Ward…

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 Trieu v R

Details

AGLC: Trieu v R [2012] NSWCCA 169
Case: [2012] NSWCCA 169
Decision Date: 17 August 2012

CaseChat Overview and Summary

Trieu v R involved the appellant, Trieu, who was appealing against his conviction for several criminal offences. The case was heard in the High Court of Australia, where the central issue was whether the trial judge should have discharged the jury due to concerns raised about a person loitering near the jury exit during their deliberations. The appellant argued that this incident constituted a miscarriage of justice, while the respondent maintained that the trial judge had appropriately directed the jury and that no miscarriage of justice had occurred.

The High Court considered whether the trial judge should have intervened upon learning of the loitering individual. The court examined the principles guiding jury independence and the circumstances in which a trial judge may discharge a jury. It was established that the trial judge has broad discretion to determine whether a miscarriage of justice has occurred, and in this instance, the judge had assessed the situation and directed the jury to continue their deliberations. The court found that the trial judge's actions were reasonable and that there was no evidence of an actual or perceived threat to the jury's impartiality or safety. The court concluded that the trial judge had appropriately exercised their discretion and that the jury's verdict was not compromised by the incident.

Given the court's reasoning, the appeal was dismissed, and the conviction was upheld. The High Court affirmed the trial judge's decision not to discharge the jury, emphasising the importance of judicial discretion in managing potential disruptions to jury deliberations. The court's decision underscored the principle that a trial judge's assessment of whether a miscarriage of justice has occurred should be given considerable deference, provided it is exercised reasonably and in accordance with established legal principles.

Orders