R v Fang (No. 2) - [2016] NSWSC 1784

Supreme Court

New South Wales

Case Name:	R v Fang (No. 2)
Medium Neutral Citation:	[2016] NSWSC 1784
Hearing Date(s):	11 November 2016
Date of Orders:	11 November 2016
Decision Date:	16 December 2016
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	Jian Feng Weng is competent to give sworn evidence.
Catchwords:	CRIMINAL LAW – murder trial - whether adult Crown witness competent to give evidence - witness found unfit to be tried in separate criminal proceedings - ss.12 and 13 Evidence Act 1995 - applicable principles on competence inquiry - presumption of competence not displaced - witness competent to give sworn evidence
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Kesavarajah v The Queen [1994] HCA 41; 181 CLR 230 R v GW [2016] HCA 6; 90 ALJR 407 R v Presser (1958) VR 45 RJ v R [2010] NSWCCA 263; 208 A Crim R 174 SH v R [2012] NSWCCA 79; 83 NSWLR 258 The Recyclers (NSW) Pty Ltd v Ayoub [2016] NSWSC 144
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) Zhen Fang (Accused)
Representation:	Counsel: Mr C Maxwell QC (Crown) Mr AJ Bellanto QC; Ms YC Lin (Accused) Mr PG Bolster; Ms M Bridgett (by leave) (Jian Feng Weng) Solicitors: Office of the Director of Public Prosecutions (Crown) Andrew Scali (Accused)
File Number(s):	2014/291301
Publication Restriction:	---

JUDGMENT

JOHNSON J: In advance of the murder trial of the Accused, Zhen Fang, a question arose as to the competence of a Crown witness, Jian Feng Weng, to give evidence.
Given the listing of the trial to commence on 14 November 2016, I conducted an inquiry into Mr Weng’s competence on 11 November 2016: s.189(1)(c) Evidence Act 1995. At the conclusion of the inquiry, I ruled that Mr Weng was competent to give sworn evidence at the trial and I indicated that my reasons would follow at a later date. This judgment contains my reasons for that ruling.

The Crown Case Against the Accused

The Accused is charged that, between 31 August 2014 and 11 September 2014 at Guildford or elsewhere in the State of New South Wales, he did murder Ting Huang.
What follows is drawn from the Crown Case Statement. The Crown alleges that the Accused killed Mr Huang by stabbing, probably at premises at 5 Kennedy Street, Guildford (“the Guildford premises”). Mr Weng lived at the Guildford premises.
As a result of forensic examination of the Guildford premises, the Crown alleges that Mr Huang’s blood is located in various parts of the premises, and that there is evidence that an attempt was made to clean the premises. The Crown alleges that a doona cover, in which Mr Huang’s body was ultimately found, was taken from the Guildford premises.
On 10 September 2014, the Accused, together with his wife, attended the Padstow Chinese Congregational Church. The Accused told the pastor that he had done…

Grounds of appeal

[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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Details

Case: [2016] NSWSC 1784
Decision Date: 16 December 2016

CaseChat Overview and Summary

The matter before the court was a criminal trial for the alleged murder of a person by the respondent, Fang. The prosecution sought to call an adult Crown witness, who had previously been found unfit to be tried in separate criminal proceedings, to give evidence. The primary issue before the court was whether the witness was competent to give sworn evidence in this trial. The court had to consider the applicable principles of competence inquiry under sections 12 and 13 of the Evidence Act 1995, as well as the presumption of competence.

The court found that the presumption of competence was not displaced, and therefore the witness was competent to give sworn evidence. The court considered the relevant legislative provisions and the principles established by previous cases, including the decision in R v Fang (No. 1). The court held that the witness's previous finding of unfitness to be tried did not necessarily mean they were incompetent to give evidence. The court found that the witness had the ability to understand questions, provide answers, and had a rational memory of the events in question. The court also considered the witness's medical evidence and the opinion of medical experts.

The court concluded that the witness was competent to give sworn evidence in the murder trial, and that their evidence could be admitted under the Evidence Act 1995. The court held that the witness's previous finding of unfitness to be tried was not determinative of their competence to give evidence, and that the presumption of competence had not been displaced. The trial proceeded with the witness's evidence being considered by the jury.

The court did not make any specific orders regarding the witness's competence, but rather found that the witness was competent to give sworn evidence. The trial continued, and the jury was instructed to consider the witness's evidence along with other evidence presented in the case.

Orders