R v Phung and Huynh [2001] NSWSC 115

New South Wales Supreme Court

CITATION : R v Phung and Huynh [2001] NSWSC 115 revised - 15/05/2001 CURRENT JURISDICTION: criminal FILE NUMBER(S) : SC 70215/99; 70089/99 HEARING DATE(S) : 19/02/01 JUDGMENT DATE : 26 February 2001

Regina PARTIES : Johnny Phung Thang Minh Huynh JUDGMENT OF : Wood CJatCL at 1

LOWER COURT Supreme Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

Crown: W. Dawe QC COUNSEL : Phung: R. Webb Huynh: R. McCrudden DPP SOLICITORS : Legal Aid Legal Aid DECISION : Records of Interview rejected

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

WOOD CJ AT CL

MONDAY 26 FEBRUARY 2001

70215/99 - REGINA v JOHNNY PHUNG 70089/99 - REGINA v THANG MINH HUYNH

JUDGMENT - (On admissibility of records of interview conducted with accused Johnny Phung. See page 175 of transcript.)

1 HIS HONOUR: Counsel for the accused Johnny Phung has objected to two records of interview conducted electronically with him on 20 December 1998, and on 4 January 1999. 2 Evidence has been received on the voir dire in relation to the issues which arise, concerning compliance respectively with section 13 of the Children (Criminal Proceedings) Act 1987, with part 10A of the Crimes Act (New South Wales) 1900 and with the regulations made pursuant to that Act contained in the Crimes (Detention After Arrest) Regulation 1998. 3 Depending upon the outcome of those issues, his co-accused foreshadowed an application for a separate trial. I have dealt with that application along with an application for severance of the indictment and with various other objections concerning the admissibility of portions of the evidence this morning. It is now appropriate to deliver reasons for my ruling last week concerning the inadmissibility of the two electronic records of interview. 4 Each accused, I note, was arraigned and pleaded not guilty to an indictment containing four counts relating to offences, each of which is alleged to have occurred on 19 December 1998 at the EPI Centre, Liverpool. 5 In short form, the relevant charges in that indictment related to the following: Count one, the armed robbery of John Paul Nguyen; count two, the armed robbery of John Huu Vinh Tran; count three, the murder of Hiep Van Nguyen; and count four, the armed robbery of Van Tri Nguyen. 6 The offences giving rise to counts one and two, it may be taken, are each alleged to have occurred in the course of incidents at about 5pm at the Centre, while those the subject of counts three and four are each alleged to have occurred again in the course of one incident at the Centre at about 10.30pm.