In Ngo v Commonwealth Attorney General [2024] NSWSC 1536, the Supreme Court of NSW (Price AJ) certified that it was in the interest of justice for evidence in sentencing proceedings in the District Court to be taken from Vietnam, invoking the international mutual assistance processes under the Mutual Assistance in Criminal Matters Act 1987 (‘MACMA’). Trent Glover SC appeared for the Commonwealth Attorney General in the matter.

The plaintiff, Ms Ngo, pleaded guilty to dealing with the proceeds of general crime, contrary to the Criminal Code Act 1995. The plaintiff’s brother had supplied an affidavit detailing threats of violence made to himself and his family, unless the plaintiff worked according to the instructions of “loan sharks,” indicating the motive for the plaintiff’s offence; however, the Crown objected to this statement being treated as sworn evidence, without the plaintiff’s brother giving oral evidence and being made available for cross-examination.

In order to adduce her brother’s evidence, it was necessary for the plaintiff to make an application to the Supreme Court under s 39A(1) of the MACMA.

The effect of the Court’s decision is that the Attorney-General will now make a formal mutual assistance request to Vietnam, pursuant to the MACMA and the Treaty on Mutual Legal Assistance in Criminal Matters between Australia and the Socialist Republic of Viet Nam.

A mutual assistance request is required for the taking of evidence from the witness in Vietnam (and any overseas country) because of complex jurisdictional and sovereign immunity issues that would arise should the Court consider exercising its powers under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW). Similar considerations apply in civil proceedings, in which processes under the Hague Convention on the Taking of Evidence abroad in Civil or Commercial Matters are required to be invoked.

The full decision appears here.