New South Wales Court of Criminal Appeal CITATION: Nguyen v R [2009] NSWCCA 26 HEARING DATE(S): 5 February 2009 JUDGMENT OF: Grove J at 1; Blanch J at 17; Kirby J at 18 EX TEMPORE JUDGMENT DATE: 5 February 2009 DECISION: Appeal allowed. New trial ordered. CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Trial - Refusal of Judge to leave claim of duress to jury - Sufficiency of evidence on that issue - Similar situation to co-acused whose conviction quashed on that ground CATEGORY: Principal judgment CASES CITED : Cuu Nguyen v R [2008] 181 A Crim R 72 O'Connor v R [2007] NSWCCA 266 PARTIES: Dinh Them NGUYEN - Applicant REGINA - Respondent/Crown FILE NUMBER(S): CCA 2006/4654 COUNSEL: S Odgers SC - Applicant J Girdham - Respondent/Crown SOLICITORS: The Law Practice Pty Ltd - Applicant S Kavanagh - Soilcitor for Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/1380 LOWER COURT JUDICIAL OFFICER: Finnane DCJ LOWER COURT DATE OF DECISION: 16/12/05 IN THE COURT OF CRIMINAL APPEAL CCA 2006/4654 GROVE J BLANCH J KIRBY J 5 February 2009 Dinh Them NGUYEN v REGINA Judgment 1 GROVE J: The initial question for determination is whether the applicant should be granted an extension of time to appeal against his conviction. In July and August 2005 he stood trial with a co-accused Cuu Nguyen and they were both found guilty by a jury of cultivating a large commercial quantity of the prohibited plant cannabis following which the presiding judge, Finnane DCJ, imposed sentences of imprisonment on each of them. 2 An application for leave to appeal against sentence by the applicant was successful and on 25 August 2006 this Court substituted a reduced sentence to that imposed at first instance. An appeal against conviction was not then pursued. However Cuu Nguyen appealed against his conviction and on 14 February 2008 the appeal was allowed, his conviction quashed and a new trial on the count charging cultivation was ordered: 2008 181 A Crim R 72. The sole ground of appeal relied upon by Cuu Nguyen was that "the learned trial judge caused the trial to miscarry when he refused to allow duress to be put to the jury". 3 The applicant now seeks to advance an identical ground challenging his conviction. 4 While the Court has appropriate power to deal with issues of sentence and conviction separately and in that sequence, the remarks of Mason P in O'Connor v R [2007] NSWCCA 266 are applicable and they bear repetition, namely: "An appellant should understand that (without an order based on extraordinary circumstances clearly proved) neither a Notice of Intention to Appeal nor a Notice of Appeal will be permitted to be filed out of time after a sentencing appeal has been heard and determined; and that any application for an extension of time to allow this to take place will be closely scrutinised. Unless the application is demonstrably meritorious it is likely to be refused, especially if the sentence matter has already been dealt with without any prior indication from the appellant of his or her intention to challenge the conviction itself. It should not be assumed that any and every breach of the time limits in the Rules will be excused." 5 Affidavits by the applicant and by Ms Fisher and Mr Blair who were solicitors having practical conduct of the matters on behalf of the applicant during their respective employments by the firm acting for the applicant have been read. It is revealed that, after conviction, the applicant pursued the challenge to sentence and not against conviction in an apparent belief that his limited funds would not extend to making a challenge against conviction. Up to that point he was not in receipt of legal aid and funded his own representation. 6 The explanation is less than cogent, however the proviso expressed by Mason P in O'Connor concerning circumstances where an appeal might be demonstrably meritorious operates in the applicant's favour. 7 In the particular circumstances of this case, the issue can be dealt with relatively briefly. 8 The ruling by Finnane DCJ was similar in relation to both the applicant and Cuu Nguyen. His Honour recorded that a jury note had been received in these terms: "Is the argument that the accused were under duress still an issue for consideration?" 9 His Honour observed that, up until then, duress had not been raised in the presence of the jury, nevertheless evidence had been given both by the applicant and his co-offender which might readily be understood by the jury as such. However his Honour ruled that the evidence given by the applicant manifested threats about what would happen to him if he left the location and he concluded that those threats were not causally connected with the charge. 10 It is well established that the issue of duress is not raised unless there is evidence capable of supporting a reasonable possibility of the existence of each of its elements, in which event the onus is on the Crown to exclude it: see Cuu Nguyen at par 29. The applicant gave evidence. Inter alia, he testified that he was recruited to do farming work and did not realise that the crop was to be marijuana. It was a co-worker (this large criminal enterprise had a number of farmhands engaged) who told him after he had been there for some weeks that the plant was illegal. He testified that he "tried to run away" but was dissuaded by threats which on at least one occasion were articulated as his being shot and buried by the bobcat, which was an implement on the property. He said that he did not flee because he feared that so doing would risk his life. 11 Such evidence is of course for evaluation by a jury but the issue should be left to them if it is capable of being believed and thereby supporting a reasonable possibility of the existence of the elements pertaining to the issue of duress. 12 In response to the jury his Honour directed the jury that both of the applicant and Cuu Nguyen participated in the cultivation voluntarily and there was no issue of duress to be considered. 13 In this Court the Crown submissions recognized that the assertions of the applicant were "common to those made by Cuu Nguyen" save that the applicant did not use the expression of the co-accused that he was "forced to do the illegal". The absence of identical words being uttered by the applicant does not create a relevant gap in the supporting evidence and it is plain from the summary of matters adverted to above that it would be reasonably open to a jury to conclude that the applicant's participation in the cultivation which constituted the crime was a consequence of relevant duress. 14 The essence of the situations of the applicant and Cuu Nguyen are indistinguishable and therefore merit is demonstrated within the meaning of the expression as used by Mason P in O'Connor above quoted. 15 There is no basis for different outcomes being reached in the appeals of the applicant and Cuu Nguyen. 16 I propose the following orders: (1) Time of lodging an appeal against conviction extended as necessary. (2) Appeal allowed. (3) Conviction quashed. (4) New trial ordered. 17 BLANCH J: I agree. 18 KIRBY J: I agree. 19 GROVE J: The orders of the Court will therefore be as I have proposed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.