Citation: Regina v Nguyen [2002] NSWCCA 342
Court: Court of Criminal Appeal (NSW)
Date: 21 August 2002
Judge(s): Giles JA, Dunford J, Greg James J
Background
The appellant was convicted by a District Court jury of robbery in company under s 97(1) of the Crimes Act 1900, arising from an incident at Bankstown Bus Station. Three youths approached a 15-year-old high school student, demanded his wallet and PIN, and took $20 from him. The victim identified the appellant as the person who grabbed him, pushed him down, and demanded the money.
The victim's identification of the appellant rested in part on a recognition encounter at Bankstown Plaza approximately eight days after the robbery. The appellant did not give evidence at trial but had made exculpatory statements during an ERISP (a recorded police interview, conducted under the Evidence Recording Interview Standard Protocol).
The appellant was sentenced to three years' imprisonment with an 18-month non-parole period. His sentence appeal was heard and resolved separately on 28 June 2002, with the sentence reduced. These reasons concern only the conviction appeal, which was reserved and later dismissed.
Legal Issues
- Whether the trial judge erred in refusing to withdraw the identification evidence from the jury
- Whether the jury was adequately warned about the dangers of acting on the identification evidence
- Whether the direction given to the jury about the appellant's exculpatory ERISP statements was appropriate
- Whether, in light of the High Court's decision in Azzopardi & Davis v The Queen (2001) 205 CLR 50, the trial judge was required to direct the jury that there may be many reasons why an accused person does not give evidence
- Whether the identification evidence was so weak that no properly instructed jury could have returned a guilty verdict (ground four)
Decision
Identification evidence (grounds one, two and four): The Court rejected the submission that the identification evidence was so frail it should have been withdrawn from the jury. Applying Doney (1990) 171 CLR 207, there was evidence upon which a jury, properly instructed, could convict. The trial judge had given a Domican-compliant warning about the special need for caution with identification evidence, and no error was established in the directions given on that topic. Any complaint about the adequacy of the identification direction had not been raised at trial, and the court applied the rule requiring leave to raise fresh grounds (sometimes described as "Rule 4"), declining to find that a substantial miscarriage of justice had occurred.
ERISP direction (ground three): The trial judge directed the jury that the appellant's exculpatory statements in his ERISP were not evidence in the same sense as sworn testimony, and had not been tested by cross-examination. The Court found this direction was not erroneous. The statements were placed before the jury and the direction correctly identified their limited evidentiary status compared to testimony given on oath and subject to cross-examination.
Direction on accused's silence (ground 3A): The appellant argued the trial judge should have directed the jury that there may be many reasons why an accused person does not give evidence. That argument drew on earlier CCA observations in Bargwann and OGD, which had said such a direction was ordinarily appropriate, particularly where a Jones v Dunkel direction was given against the accused arising from silence. The Court held that those earlier observations were overtaken by the High Court's decision in Azzopardi & Davis v The Queen (2001) 205 CLR 50. Here, no Jones v Dunkel direction was given, and the trial judge had directed the jury consistently with the Azzopardi majority's approach. The absence of the additional direction did not constitute error in those circumstances. This ground was also refused under Rule 4.
Orders Made
- Appeal against conviction dismissed.
- (The sentence appeal had been separately allowed on 28 June 2002, with the original sentence quashed and a new sentence passed: see Regina v Nguyen [2002] NSWCCA 267.)
Key Takeaways
- In dismissing the conviction appeal, the Court of Criminal Appeal confirmed that identification evidence need not be withdrawn from the jury merely because it carries weaknesses; the applicable standard remains whether evidence exists upon which a jury could properly convict, per Doney.
- A trial judge's direction that exculpatory ERISP statements lack the status of sworn, cross-examined testimony was held to be an accurate and appropriate direction, not a misdirection.
- The pre-Azzopardi CCA authorities in Bargwann and OGD, which suggested trial judges should ordinarily direct juries that there may be many reasons why an accused does not give evidence, were found not to apply where the trial judge has directed consistently with the Azzopardi majority and no Jones v Dunkel direction has been given against the accused.
- The rationale for the "many reasons" direction was its role as a counterbalance to a Jones v Dunkel direction; without such a direction, its absence did not constitute error.
- Grounds not raised at trial face a high threshold on appeal: the Court applied Rule 4 and declined to find a substantial miscarriage of justice on multiple grounds that had not been agitated before the trial judge.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 97(1)
- Evidence Act 1995 (NSW), s 20
Cases:
- Azzopardi & Davis v The Queen (2001) 205 CLR 50
- Doney v The Queen (1990) 171 CLR 207
- Domican v The Queen (1992) 173 CLR 555
- Jones v Dunkel (1959) 101 CLR 298
- M v The Queen (1994) 181 CLR 487
- Horton v Dodd (1998) 45 NSWLR 426
- Gugaga (1994) 74 A Crim R 190
- Blick [2000] NSWCCA 61
- Mitton [2002] NSWCCA 124
- Bargwann (CCA, unreported, 15 June 1998)
- OGD (CCA, unreported, 3 June 1997)
- Regina v Nguyen [2002] NSWCCA 267 (sentence appeal)