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Nguyen v The Queen

Nguyen v The Queen

Case [2010] NZCA 623 17 December 2010

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA511/2009
[2010] NZCA 623
BETWEENVAN QUANG NGUYEN

Appellant

ANDTHE QUEEN

Respondent

Hearing:18 November 2010

Court:Glazebrook, Chisholm and Miller JJ
Counsel:C M Ruane for Appellant

N P Chisnall and M J Inwood for Respondent

Judgment:17 December 2010

JUDGMENT OF THE COURT

A        The application to adduce new evidence is declined.
B       The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Glazebrook J)
Introduction
[1]       Following a trial before Judge Zohrab and a jury in the Nelson District Court in June 2009, Mr Nguyen was convicted of one count of causing grievous bodily harm with intent to cause grievous bodily harm pursuant to s 188(1) of the Crimes Act 1961 and one count of common assault pursuant to s 196 of the Crimes Act.
[2]       He appeals against his convictions. The sole ground of appeal that is pursued is that there is fresh evidence that would impact on the victim’s credibility so as to give rise to the risk of a miscarriage of justice. There were other grounds detailed in the notice of appeal but these were abandoned at the hearing.
Background
[3]       The Crown case at trial was that, on the evening of 27 May 2008, Mr Nguyen assaulted the victim Mr Thanh Nguyen, a boarder at his home, with the assistance of another boarder, Mr Binh Tran. In this judgment we will call Mr Thanh Nguyen “the Victim” and Mr Binh Tran “the Boarder”.[1]
[1]We have used these identifiers to avoid confusion arising from the similarity of the names of the various participants. No disrespect is intended.
[4]       The Victim’s evidence at trial was that, during an otherwise happy drinking session with Mr Nguyen and the Boarder, Mr Nguyen unexpectedly punched him in the face causing him to fall to the floor. He was then held and hit and kicked repeatedly to the head, chest, legs, stomach and back. When he eventually woke up from the resulting faint, he went back to his bedroom where he stayed, barring occasional unsuccessful trips to the toilet until Mr Nguyen’s son called an ambulance the next day.
[5]       The Victim subsequently underwent surgery for injuries caused by the beating. The doctor who operated on the Victim on 28 May 2008 stated that the Victim had two perforations to his bowel which were consistent with blunt trauma to the abdomen and some swelling to the left side of his face.
[6]       The Victim was cross-examined by the defence counsel acting for Mr Nguyen and the Boarder who put to him that the defendants had not hit him but rather that he was so drunk that he did not know what had happened, that he had behaved badly, including in relation to a knife, and that he had fallen over and hurt himself. The Victim accepted in cross-examination that he could not see whether the Boarder had hit him because he was so dizzy from Nr Nguyen’s initial blows but he did reject the suggestion…

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 Nguyen v The Queen

Details

AGLC: Nguyen v The Queen [2010] NZCA 623
Case: [2010] NZCA 623
Decision Date: 17 December 2010

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard the appeal of Van Quang Nguyen against his convictions for causing grievous bodily harm with intent and common assault. The appellant argued that new evidence of an alleged blackmail attempt by the victim and another individual could have impacted the victim's credibility and raised a reasonable doubt. The court considered whether the new evidence was fresh, credible, and could have affected the trial's outcome.

The court found that the new evidence was neither fresh nor credible. The court did not accept the appellant's wife's explanation that she did not inform her husband about the alleged blackmail attempt due to fear of the individuals involved. The court also found it hard to believe that the alleged extortionists would have instructed her to withhold the information from her husband. Furthermore, the court did not believe that the money borrowed by the appellant's wife had been entirely spent on house repairs. The court concluded that even if the evidence was admissible, it could not have affected the trial's outcome as it did not contradict the victim's evidence in any material respect.

The application to adduce new evidence was declined, and the appeal was dismissed. The court's final orders were that the application to adduce new evidence was declined and the appeal was dismissed.

Orders