Criminal Law - Applications for leave to appeal against conviction and sentence - Crown concession as to ground of appeal against conviction - Substantial miscarriage of justice - Retrial ordered.

[3]

Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions

[4]

1 The applicant, Allan Nguyen, applies for leave to appeal against his conviction on 13 May 2004 on count 3 on Presentment No. CO102433, namely, trafficking in a drug of dependence (heroin), between 5 October and 30 October 2001. The applicant also seeks leave to appeal against sentence of five years' imprisonment with a non-parole period of three years and six months that was imposed on him on 11 June 2004.

2 Mr Holdenson for the respondent has essentially conceded that ground 1 of the applicant's grounds in support of his application for leave to appeal against conviction has been made out; more particularly, that a substantial miscarriage of justice may have occurred by reason of the refusal by the trial judge to accede to the request of the jury to listen to Exhibit B, namely, recordings of a number of telephone intercepts and listening devices involving the applicant and his record of interview with the police. It was said for the respondent that a re-trial on count 3 is warranted.

3 In the circumstances, the Court orders as follows:

1. The application for leave to appeal against conviction is granted.

2. The appeal is treated as instituted and heard instanter and is allowed.

[5]

3. The conviction sustained by the applicant in the court below is quashed and the sentence passed thereon is set aside.

4. The Court directs a new trial to be held on count 3 of the presentment numbered C0102433.

5. The applicant is remanded in custody pending a new trial without prejudice to any application for bail that may be made by him.

[6]

The Court grants to the applicant an indemnity certificate pursuant to s.14 of the Appeal Costs Act 1998 and directs that there be included in that certificate any additional costs that the applicant will pay, or will be ordered to pay, as a consequence of the order for a new trial.

[7]

The Court indicates that the outline of submissions for the respondent dated 14 November 2005, which has been marked with the letter "A" and placed on the file, should be brought to the attention of the judge conducting the re-trial of this applicant.

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Parties

Applicant/Plaintiff:

# R

Respondent/Defendant:

Nguyen \[2006\] VSCA 27