Truong v The Queen - [2003] HCATrans 724

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M226 of 2002

B e t w e e n -
HONG PHUC TRUONG
Appellant
and
THE QUEEN
Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 28 MAY 2003, AT 10.20 AM

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR J.B. McDOUGALL, on behalf of the appellant. (instructed by Clarebrough Pica)

MR P.A. COGHLAN, QC: May it please the Court, I appear with my learned friend, MS K.E. JUDD, on behalf of the respondent. (instructed by Solicitor for Public Prosecutions)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with my learned friend, MS M.M. GORDON, for the Attorney‑General intervening as of right, but if there be any difficulty with the intervention as of right I would seek leave to intervene, and I have agreed with my learned friend, Mr Coghlan, that subject to questions of leave I should go first. (instructed by Australian Government Solicitors)

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Holdenson.

MR HOLDENSON: The issue to be determined on this appeal can be simply stated, and it is this. Whether the trial of the appellant in the Supreme Court of Victoria, in which the appellant was tried on two counts, first, the substantive offence of kidnapping contrary to statute and, secondly, the substantive offence of murder contrary to the common law, and at the end of which the appellant, as he now is, was convicted on each of those two counts, was conducted contrary to section 42(a) of the Extradition Act and if it were conducted contrary to that provision, then the two convictions, it is submitted on behalf of the appellant, must be quashed.

GUMMOW J: Why?

McHUGH J: What is the ground of appeal within the meaning of the statute? It cannot be a miscarriage of justice. It cannot be an error of law, can it? If he has a point, it is an abuse of process point, is it not?

MR HOLDENSON: We did have such a ground of appeal in the court below and we have such a ground of appeal in this Court as specified in the notice of appeal. As to the ground of appeal in the court below, the grounds are set out at page 20. Those grounds have not been added by way of a grant of leave by the learned registrar, and at page 20 of the first volume of the appeal book your Honours will see ground 6 at about line 20 on the page where it is said that:

The trial of the Applicant constituted an abuse of process and, as a consequence, there has been a substantial miscarriage of justice.

That ground is reflected in those terms in one of…

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 Truong v The Queen

Details

AGLC: Truong v The Queen [2003] HCATrans 724
Case: [2003] HCATrans 724
Decision Date

CaseChat Overview and Summary

The case of *Truong v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Truong, had been found guilty of murder by a jury in the Supreme Court of New South Wales and subsequently appealed to the Court of Criminal Appeal of New South Wales, which dismissed his appeal. The High Court then granted special leave to appeal.

The central legal issue before the High Court was whether the trial judge had erred in law by failing to adequately direct the jury on the defence of provocation. Specifically, the court had to consider whether the jury had been properly instructed on the objective elements of provocation, namely whether the provocation was such as to cause an ordinary person to lose self-control, and the subjective elements, namely whether the particular accused did in fact lose self-control because of that provocation.

The High Court, in a joint judgment, held that the trial judge's summing up had been deficient in its explanation of the objective test for provocation. Their Honours emphasised that the jury must be instructed that the question of whether an ordinary person would have been provoked is a question of fact for the jury to determine, and that the standard of the "ordinary person" is not a rigid one but rather one that takes into account the circumstances of the case. The court reiterated that provocation, if established, reduces the crime of murder to manslaughter.

The High Court allowed the appeal, quashed the conviction for murder, and ordered a new trial on the charge of murder.

Orders