R v Tai - [2016] NSWCCA 207

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v TAI, Alatini [2016] NSWCCA 207
Hearing dates: 9 September 2016
Decision date: 28 September 2016
Before: Beazley P at [1];
Garling J at [48];
Hidden AJ at [51]
Decision:
Crown appeal dismissed.

Catchwords:
EVIDENCE - discretion to exclude evidence pursuant to Evidence Act 1995 (NSW), s 135(a) - death of victim of alleged robbery prior to trial - statements of deceased admissible pursuant to Evidence Act 1995 (NSW), s 65(2) - whether probative value of evidence substantially outweighed by the danger that the evidence might be unfairly prejudicial - whether inability to cross-examine deceased gave rise to danger that statements would be unfairly prejudicial to the accused
APPEAL - appeal against interlocutory decision by the Crown pursuant to Criminal Appeal Act 1912 (NSW), s 5F(3A) - appeal from discretionary decision of trial judge to exclude evidence pursuant to Evidence Act 1995 (NSW), s 135(a) - whether error established in the House v The King sense - whether trial judge impermissibly took into account “inadequacy of police investigation”
Legislation Cited: Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Cases Cited: House v The King (1936) 55 CLR 449; [1936] HCA 40
Papakosmas v R (1999) 196 CLR 297; [1999] HCA 37
Category: Principal judgment
Parties: Regina (Appellant)
Alatini Tai (Respondent)
Representation:
Counsel:
N Williams (Appellant)
P Lange (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Appellant)
Zahr Partners (Respondent)

File Number(s): 2014/250917
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

21 March 2016

Before:

Hanley SC DCJ

File Number(s):

2014/250917

Headnote

[This headnote is not to be read as part of the judgment]

The respondent was arraigned to stand trial in the District Court on 22 February 2016 on a charge of robbery pursuant to the Crimes Act 1900 (NSW), s 94. The victim of the alleged robbery was Mr Ninnes, aged 84 at the relevant time.

The Crown case against the respondent is that on the evening of 20 August 2014, Mr Ninnes had been playing poker machines at the Vegas Hotel at Mt Druitt and had won a substantial sum of money. Mr Ninnes left the hotel shortly after midnight to walk home. On the way, he stopped at a 7-Eleven store where a young woman and the respondent approached him. Mr Ninnes moved away from the respondent, crossed over a railway footbridge onto Beames Avenue, where Mr Ninnes lived, and commenced walking in the direction of his unit block. The robbery is alleged to have taken place on Mr Ninnes’ walk to his unit.

As a consequence of Mr Ninnes’ death prior to the trial, it was necessary for the Crown to rely on certain statements made by Mr Ninnes prior to his death. The first of Mr Ninnes’ statements was made to a police officer in the early morning some three hours after the alleged robbery, when police attended the area in response to a…

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.

Continue reading R v Tai

Details

AGLC: R v Tai, Alatini [2016] NSWCCA 207
Case: [2016] NSWCCA 207
Decision Date: 28 September 2016

CaseChat Overview and Summary

The appellant, R, was charged with the robbery of the deceased, who passed away before the trial. The deceased had made statements about the robbery, which the Crown sought to admit as evidence. The trial judge decided to exclude the deceased's statements, citing the potential for unfair prejudice under section 135(a) of the Evidence Act 1995 (NSW). The Crown appealed this decision, arguing that the judge erred by considering the inadequacy of the police investigation. The appeal focused on whether the trial judge correctly exercised their discretion to exclude the evidence and whether the exclusion was an error in the sense of House v The King.

The court examined the criteria for excluding evidence under section 135(a) of the Evidence Act 1995 (NSW). The primary consideration was whether the probative value of the deceased's statements was substantially outweighed by the danger of unfair prejudice to the accused. The court noted the deceased's statements were relevant and probative. However, the court also acknowledged the danger of unfair prejudice due to the inability to cross-examine the deceased. The court further examined whether the trial judge had erred by taking into account the inadequacy of the police investigation in making the decision. The court held that the trial judge's consideration of the police investigation was not an error in the sense of House v The King, as it did not amount to an error of law that would justify an appeal.

The appeal was dismissed. The court found that the trial judge correctly exercised their discretion to exclude the evidence under section 135(a) of the Evidence Act 1995 (NSW). The probative value of the deceased's statements was not substantially outweighed by the danger of unfair prejudice, particularly given the inability to cross-examine the deceased. The trial judge's consideration of the police investigation did not constitute an error of law that warranted an appeal. The deceased's statements were excluded, and the trial proceeded without them.

Orders