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Nguyen v The Queen

Nguyen v The Queen

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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA797/2010 [2011] NZCA 8

BETWEEN TUAN NGUYEN Appellant

ANDTHE QUEEN Respondent

CA885/2010

AND BETWEEN THE QUEEN Appellant

ANDTUAN NGUYEN Respondent

Hearing: 2 February 2011
Court: Chambers, Ellen France and Randerson JJ Counsel: S D Patel for Mr Nguyen
C A Brook for Crown

Judgment: 11 February 2011 at 1 p.m.

JUDGMENT OF THE COURT

A In CA797/2010 leave to appeal is granted to the Appellant, Mr Nguyen,

but the appeal is dismissed.

NGUYEN V R CA CA797/2010 [11 February 2011]

BIn CA885/2010 the Crown as Appellant is granted leave to appeal and the appeal is allowed.

CThe result is that the evidence relating to the first incident involving the complainant and H and the evidence relating to the second incident involving the complainant and her stepbrothers (along with the associated evidence about photographs of that activity) is inadmissible at trial.

DOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial.
Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] These two appeals relate to the admissibility of evidence in a forthcoming trial in the District Court in which the appellant Mr Nguyen faces five counts alleging sexual offending against a 13 year old complainant (D). The relevant events are said to have occurred between 10 June 2009 and 31 July 2009.

[2] Mr Nguyen applied in the District Court for leave under s 44 of the Evidence

Act 2006 to cross-examine D in relation to her sexual experience in late December

2008 or early January 2009 with a teenage boy. We will call this the first incident.

[3] A second application was made under s 344A of the Crimes Act 1961 for an order that certain other evidence be admissible at trial. This evidence related to another incident in late January 2009 when the complainant arranged and took photographs of sexual activity between her two stepbrothers who were aged two or three years at the time. We will call this the second incident.

[4] In separate decisions in the District Court, Judge Sharp refused the application for leave under s 44 in respect of the first incident, but ruled that the evidence relating to the second incident was admissible at trial. 1

[5] Mr Nguyen has sought leave to appeal against the refusal of the application under s 44 in respect of the first incident while the Crown has sought leave to appeal…

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.

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Details

Case: [2011] NZCA 8
Decision Date: 11 February 2011

CaseChat Overview and Summary

In the case of Nguyen v The Queen, the Court of Appeal of New Zealand addressed two separate appeals concerning the admissibility of evidence in an upcoming trial in the District Court. Mr. Nguyen faced five counts of sexual offending against a 13-year-old complainant. The first appeal (CA797/2010) involved Mr. Nguyen's application for leave to cross-examine the complainant about her sexual experience with a teenage boy in late December 2008 or early January 2009. The second appeal (CA885/2010) concerned the Crown's application for an order that certain evidence be admissible at trial, which related to another incident in late January 2009 when the complainant arranged and took photographs of sexual activity between her two stepbrothers.

The legal issues the court had to decide were whether the evidence of the first incident was of such direct relevance to the facts in issue that it would be contrary to the interests of justice to exclude it, and whether the evidence of the second incident was of such direct relevance to the facts in issue that it would be contrary to the interests of justice to exclude it. The court's reasoning was that the evidence of the first incident did not meet the direct relevance test under s 44 of the Evidence Act 2006, as there was no logical connection between the evidence and the suggestion that the complainant fabricated her complaint against Mr. Nguyen. As for the second incident, the court concluded that the evidence was not of such direct relevance to the facts in issue that it would be contrary to the interests of justice to exclude it. The evidence would be prejudicial to the complainant and would unnecessarily blacken her character in the eyes of the jury.

As a result, leave to appeal was granted to Mr. Nguyen (CA797/2010), but the appeal was dismissed. In the case of the Crown's appeal (CA885/2010), leave to appeal was granted, and the appeal was allowed. The evidence relating to the first incident involving the complainant and the teenage boy, as well as the evidence relating to the second incident involving the complainant and her stepbrothers (along with the associated evidence about photographs of that activity), is inadmissible at Mr. Nguyen's trial.

Orders