The Queen v Nguyen [2010] HCA 38

HIGH COURT OF AUSTRALIA

HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

THE QUEEN APPLICANT

AND

DANG QUANG NGUYEN RESPONDENT

The Queen v Nguyen [2010] HCA 38

3 November 2010

M23/2010

ORDER

1. Special leave to appeal granted.

2. Special leave to cross-appeal granted.

3. Appeal and cross-appeal each treated as instituted and heard instanter and allowed.

4. Set aside the orders of the Court of Appeal of the Supreme Court of Victoria made in respect of the respondent on 18 December 2009, and, in their place, order that:

(a) leave to appeal to that Court against conviction be granted;

(b) the appeal to that Court be allowed;

(c) the respondent's convictions be quashed; and

(d) a new trial be had.

On appeal from the Supreme Court of Victoria

Representation

T Gyorffy with B L Sonnet for the applicant (instructed by Director of Public Prosecutions (Vic))

M J Croucher with C B Boyce for the respondent (instructed by Michael J Gleeson & Associates Pty)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

The Queen v Nguyen

Criminal law – Appeal – Verdict unreasonable or cannot be supported having regard to the evidence – Respondent found guilty by jury of murder and attempted murder by complicity – Court of Appeal quashed convictions on ground that verdicts "unsafe and unsatisfactory" in the sense that verdicts were unreasonable or could not be supported having regard to the evidence – Whether verdicts unsafe and unsatisfactory – Whether reasonably open to jury on the whole of the evidence to convict respondent of murder and attempted murder – Task of appellate court.

Criminal law – Murder – Practice and procedure – Directions to jury – Whether alternative verdict of manslaughter sufficiently left to jury – Whether reasonably open to jury to return alternative verdict of manslaughter – Whether failure sufficiently to leave alternative verdict to jury constituted a wrong decision on a question of law – Whether no substantial miscarriage of justice actually occurred.