R v Tuan Minh Nguyen [2003] NSWSC 1068

New South Wales Supreme Court

CITATION : R v Tuan Minh Nguyen [2003] NSWSC 1068 HEARING DATE(S) : 10/09/03 - 18/09/03, 22/09/03 - 9/10/03, 13/10/03 - 23/10/03, 27/10/03 - 14/11/03 JUDGMENT DATE : 17 November 2003

JUDGMENT OF : Buddin J DECISION : Evidence ruled inadmissible.

CATCHWORDS : Objection taken to identification evidence - fresh application after further material made available - numerous factors taken into account in determining whether the unfair prejudice of the evidence outweighs its probative value - evidence excluded. LEGISLATION CITED : Evidence Act Alexander v The Queen (1981) 145 CLR 395 Domican v The Queen (1992) 173 CLR 556 Festa v The Queen (2001) 185 ALR 394 CASES CITED : Pitkin v The Queen (1995) 69 ALJR 612 R v Blick (2000) 111 A Crim R 326 R v Marshall (2000) 113 A Crim R 190 R v Tugaga (1994) 74 A Crim R 190 PARTIES : Regina Tuan Minh Nguyen FILE NUMBER(S) : SC 70087/02 COUNSEL : R Herps (Crown) G Wendler (Accused) SOLICITORS : SE O'Connor (Crown) Van Houten (Accused)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BUDDIN J

MONDAY 17 NOVEMBER 2003

70087/02 – REGINA v TUAN MINH NGUYEN

JUDGMENT 1 Tuan Minh Nguyen (the accused) is charged with the murder of Omar El-Chami Batch at Bankstown on 16 February 2001. At the outset of the trial and before the jury was empanelled, objection was taken to evidence being led from a young person, who by reason of his age I will refer to as L, in which it was anticipated that he would purport to identify the accused as having shot the deceased. I overruled the objection. In the course of doing so, I set out in considerable detail the evidence which the Crown indicated that it expected to lead in its case. Apart from L, there are a number of other persons to whom I shall refer, during the course of these reasons, by initials only. 2 Set out below is the evidence to which I have just referred: The shooting of the deceased occurred at about 3.15 pm on Friday 16 February 2001 at Bankstown Railway Station. It was the culmination of events which had their genesis in an incident which had occurred in the same area some days before. On 13 February at about 3.15 pm a group of Lebanese schoolboys set upon an Asian boy [whom, by reason of his age, I shall refer to as D] and his friend in the mistaken belief that he was the boy who had scratched an Asian boy several days before. A fight ensued and D produced a pen which he used to stab a Lebanese boy in the leg. This incident provided the impetus for the confrontation which occurred on 16 February. Groups of Asian and Lebanese youths, gathered in anticipation, it would appear, of a fight taking place at that time.