(1) Order that, up to and including the 18 July 2016, there be no disclosure (by publication or otherwise) of this judgment.
(2) Direct that the parties, on or before the 11 July 2016, file submissions as to whether and to what extent Order (1) should continue beyond 18 July 2016.
(3) The grounds for making this order are those specified in s 8(1)(a), s 8(1)(c) and s 8(1)(e) of the Act.
Note that this order does not extend to circulation of the summary of judgment in the form approved by the Court.
ADDENDUM – 18 July 2016 (4) That there be no disclosure (by publication or otherwise) of the entire pars [203] and [205], the first nine words of par [206] and the words after “[42]” and before “that the AFP” in par [211] of this judgment, subject to any review of those materials on an application for special leave to the High Court.
Catchwords:
CRIMINAL LAW – appeal against conviction – referral of the whole case – Crimes (Appeal and Review) Act 2001 (NSW), s 79(1)(b) – witness recanted evidence – whether recantations admissible
EVIDENCE – hearsay – recanted evidence – witness not available – admissibility – whether previous representations likely to be reliable – circumstances of representations – Evidence Act 1995 (NSW), s 65
CRIMINAL LAW – appeal against conviction – evidence exculpating appellant – whether evidence credible
CRIMINAL LAW – appeal against conviction – Crown failure to call witness – police informant – prosecutor’s duty to call material witness – public interest immunity – forensic advantage to accused – whether miscarriage of justice – whether denial of fair chance of acquittal – whether jury verdict unreasonable or unsupported
CRIMINAL LAW – appeal against conviction – fresh evidence and new evidence – whether verdict unreasonable or unsupported
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Chidiac v The Queen (No 2) [2016] NSWCCA 120
Case
[2016] NSWCCA 120
Decision Date
CaseChat Overview and Summary
The case of Chidiac v The Queen (No 2) involved the appellant, Chidiac, appealing against his conviction. The dispute centred on the admissibility of recanted witness evidence and the Crown's failure to call a material witness. The case was heard in the New South Wales Court of Criminal Appeal. The appellant contended that the trial judge erred in excluding recanted evidence from the jury and in not compelling the Crown to call a police informant, which he argued led to a miscarriage of justice and an unreasonable or unsupported verdict.
The court was required to decide whether the recanted evidence should have been admitted under the Evidence Act 1995 (NSW), s 65. It also needed to determine whether the Crown had a duty to call the police informant and whether the failure to do so resulted in a miscarriage of justice. Additionally, the court had to consider whether the jury's verdict was unreasonable or unsupported by the evidence, given the absence of the recanted evidence and the police informant's testimony.
In its reasoning, the court found that the recanted evidence was inadmissible as it was unreliable and the witnesses were unavailable. The court held that the circumstances did not establish that the previous representations were likely to be reliable. Regarding the Crown's failure to call the police informant, the court found that there was no public interest immunity or forensic advantage that precluded the witness from testifying. The court concluded that the exclusion of the recanted evidence and the failure to call the police informant did not lead to a miscarriage of justice, nor did it result in an unreasonable or unsupported verdict by the jury.
The final orders of the court were to dismiss the appeal against conviction. The court held that the jury's verdict was open to them and was supported by the evidence before them, despite the absence of the recanted evidence and the police informant's testimony.