Huynh v R [2020] NSWCCA 202

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Huynh v R [2020] NSWCCA 202 Hearing dates: 10 June 2020 Date of orders: 12 August 2020 Decision date: 12 August 2020 Before: Macfarlan JA at [1]; N Adams J at [93]; Lonergan J at [94] Decision: (1) Grant the applicant such extension of time for him to apply for leave to appeal as he requires. (2) Grant the applicant leave to appeal. (3) Quash the applicant's conviction of the supply of prohibited drug offence with which he was charged. (4) Direct a new trial on that charge and fix 21 August 2020 at 9:30am as an arraignment listing date before the District Court. (5) Quash the aggregate sentence imposed on the applicant in the District Court on 10 June 2016. (6) Remit the proceedings to the District Court for the applicant to be re-sentenced on the three possession charges under s 10 of the Drug Misuse and Trafficking Act 1985 (NSW) to which he pleaded guilty. Catchwords: CRIMINAL LAW – application for leave to appeal against conviction – applicant convicted of supply of prohibited drug offence – s 25(1) Drug Misuse and Trafficking Act 1985 (NSW) – argument available on the evidence that he possessed drugs "otherwise than for purpose of supply" because he received them from the true owner and intended to return them to him – R v Carey (1990) 20 NSWLR 292 – trial judge and Crown informed jury of potential availability of Carey defence – whether trial miscarried because defence counsel failed to put Carey defence to jury CRIMINAL LAW – trial judge's summing up – trial judge made comments disparaging applicant's case – whether summing up was unbalanced and unfair in a way that constituted a miscarriage of justice – appeal allowed and new trial ordered Legislation Cited: Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Alkhair v The Queen [2016] NSWCCA 4; (2016) 255 A Crim R 419 Director of Public Prosecutions v Brooks [1974] AC 862 He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 Kamali v R [2019] NSWCCA 186 McKell v The Queen (2018) 264 CLR 307; [2019] HCA 5 Nudd v The Queen [2006] HCA 9; (2006) 162 A Crim R 301 R v Ali (1981) 6 A Crim R 161 R v Blair [2005] NSWCCA 78; (2005) 152 A Crim R 462 R v Carey (1990) 20 NSWLR 292 R v Filippetti (1978) 13 A Crim R 335 R v WE (No 16) [2020] NSWSC 325 Texts Cited: Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (at 3 August 2020) Category: Principal judgment Parties: Huy Bao Van Huynh (Applicant) Regina (Respondent) Representation: Counsel: P Coady (Applicant) S Flood (Respondent)