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Court of Criminal Appeal 5 February 2009

Nguyen v R

[2009] NSWCCA 26

Drugs
CRIMINAL LAW AND PROCEDURE TRIAL SUFFICIENCY OF EVIDENCE ON THAT ISSUE SIMILAR SITUATION TO CO

Citation: Nguyen v R [2009] NSWCCA 26
Court: New South Wales Court of Criminal Appeal
Date: 5 February 2009
Judge(s): Grove J, Blanch J, Kirby J

Background

The appellant stood trial alongside a co-accused in the District Court in 2005, charged with cultivating a large commercial quantity of cannabis. Both were convicted by a jury. The trial judge, Finnane DCJ, refused to leave a defence of duress to the jury, directing instead that both accused had participated in the cultivation voluntarily.

The appellant initially pursued only a sentence appeal, which succeeded in August 2006. His co-accused, however, separately appealed his conviction on the duress ground and succeeded: the co-accused's conviction was quashed and a new trial ordered in February 2008.

The appellant then sought an extension of time to appeal his own conviction on the identical ground, arguing that the trial judge had wrongly withheld the duress question from the jury.

  • Whether an extension of time to appeal against conviction should be granted, given that a sentencing appeal had already been heard and determined
  • Whether the trial judge erred in refusing to leave the defence of duress to the jury
  • Whether there was sufficient evidence capable of supporting a reasonable possibility of each element of duress

Decision

The Court acknowledged that the appellant's explanation for the delay, namely that he lacked funds to challenge both sentence and conviction simultaneously, was less than cogent. However, the proviso articulated in O'Connor v R allowed an extension where an appeal was demonstrably meritorious. Given the circumstances, the Court considered that threshold satisfied.

On the substantive ground, the appellant had testified that he was recruited for what he believed was legitimate farming work, realised only weeks later that the crop was illegal, and then attempted to leave but was threatened with being shot and buried by a bobcat on the property. The trial judge concluded those threats were not causally connected to the cultivation charge and declined to direct the jury on duress.

The Court found that this evidence was squarely capable of being believed and thereby capable of supporting a reasonable possibility of the elements of duress. Whether to accept it was a matter for the jury, not the judge. The Crown acknowledged the appellant's evidence was materially common to that of the co-accused, whose conviction had already been quashed on the same ground. The absence of the precise phrase used by the co-accused did not create a meaningful gap in the evidence.

Because the situations of the appellant and his co-accused were indistinguishable in their essentials, the Court held there was no basis for different outcomes. The conviction was quashed.

Orders Made

  • Extension of time for lodging an appeal against conviction granted as necessary
  • Appeal allowed
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • The duress defence must be left to the jury whenever there is evidence capable of supporting a reasonable possibility of each of its elements; it is not for the trial judge to resolve whether the threats were causally connected to the offence if the evidence supports that inference.
  • A late conviction appeal may still be granted an extension of time after a sentencing appeal has been determined, but only where the appeal is demonstrably meritorious. The Court applied the principle from O'Connor v R that such applications will be closely scrutinised.
  • Where a co-accused's conviction has already been quashed on identical grounds arising from substantially the same evidence, the Court of Criminal Appeal will ordinarily reach the same outcome for the remaining accused.
  • Evidential sufficiency for duress does not require an accused to use precise or formulaic language; the absence of the exact words used by a co-accused does not automatically undermine the evidentiary foundation for the defence.
  • Financially constrained accused persons who pursue sentence appeals before conviction appeals face an uphill task in obtaining extensions of time, even when the merit of the conviction appeal is ultimately recognised.

Legislation and Cases Referenced

Cases:
- Cuu Nguyen v R (2008) 181 A Crim R 72 (NSWCCA)
- O'Connor v R [2007] NSWCCA 266

Legislation: No specific legislation was cited in the provided judgment text.