R v Tan

Case [2023] NSWDC 227 14 June 2023

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District Court

New South Wales

Medium Neutral Citation: R v Tan [2023] NSWDC 227
Hearing dates: 13 June 2023
Date of orders: 14 June 2023
Decision date: 14 June 2023
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs 20, 23, 27, 31, 73, 100, 111

Catchwords:
EVIDENCE – admissibility of evidence – whether portions of the accused’s ERISP should be excluded under s 137 of the Evidence Act 1995 (NSW) - whether exceptions under s 294CB of the Criminal Procedure Act 1986 (NSW) are engaged – whether Tik Tok video admissible – whether complainant’s JIRT is admissible where complainant not to be called

Legislation Cited:
Crimes Act 1900 (NSW) ss 66C, 80AE, 91FA, 91FB, 91H
Criminal Procedure Act 1986 (NSW) ss 292E, 294CB
Evidence Act 1995 (NSW) ss 55, 65, 97, 100, 108A, 135, 136, 137

Cases Cited:
Adams v R [2018] NSWCCA 303
Aravena v R (2015) 91 NSWLR 258
CTM v The Queen (2008) 236 CLR 440
El-Haddad v The Queen (2015) 88 NSWLR 93
GEH v R [2012] NSWCCA 150
Hughes v The Queen (2017) 263 CLR 338
IMM v The Queen (2016) 257 CLR 300
McPhillamy v The Queen (2018) 361 ALR 13
R v Cakovski (2004) 149 A Crim R 21
R v Charbel Rahme [2004] NSWCCA 233
R v Tubou [2001] NSWCCA 243
RH v The Queen (2014) 241 A Crim R 1
TB v R [2019] NSWCCA 224

Texts Cited:
Nil

Category: Procedural rulings
Parties: Office of the Director of Public Prosecutions (ODPP)
Mr R Tan (accused)
Representation: Mr S Richards for the ODPP (solicitor advocate)
Mr R Stewart for the accused (Counsel)

File Number(s): 2021/00203497
Publication restriction: Non-publication of the complainant’s name

JUDGMENT

Background

This is a trial by judge alone. Yesterday morning, after the accused was arraigned, and after he pleaded not guilty to all counts on an indictment, I heard argument on various evidentiary issues.
The accused is tried on indictment on 5 counts. Counts 1-4 (incl) all concern conduct occurring at Kingsgrove on 12 June 2021. Count 5 concerns conduct occurring on or about 15 July 2021, also at Kingsgrove.
Putting the matter generally, counts 1-4 (incl) relate to two separate acts of sexual intercourse between the Accused and the complainant. Count 1 relates to an act of fellatio. Count 3 relates to penile-vaginal intercourse. Both acts occurred in the accused’s motor vehicle. The alleged offence relating to counts 1 and 3 is s 66C(1) of the Crimes Act 1900 (NSW). The only elements of that offence are that: (1) the accused and complainant had sexual intercourse; and (2) the complainant was a child above the age of 10 and under the age of 14 years; namely 12 years.
Counts 2 and 4 relate to the accused’s acts of filming or, for the purposes of the provision, ‘producing’ material depicting the separate acts of sexual intercourse with the complainant on the accused’s mobile phone. The alleged offence relating to counts 2 and 4 is s 91H(2) of the Crimes…

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 Tan

Details

AGLC: R v Tan [2023] NSWDC 227
Case: [2023] NSWDC 227
Decision Date: 14 June 2023

CaseChat Overview and Summary

In the matter of the Queen versus Tan, the accused was charged with sexual assault and faced trial in the District Court of New South Wales. The dispute centred on the admissibility of certain electronic evidence, specifically the accused's electronic record of a police interview, a TikTok video, and a joint interview record transcript of the complainant. The crux of the legal issue was whether the exceptions to the hearsay rule under the Evidence Act 1995 (NSW) and the Criminal Procedure Act 1986 (NSW) allowed for the admission of these pieces of evidence, particularly given the complainant would not be called to testify.

The court had to determine if the exceptions outlined in section 294CB of the Criminal Procedure Act were applicable, which would permit the admission of the accused's electronic record of a police interview and the complainant's joint interview record transcript. Additionally, the court examined whether the TikTok video could be admitted under the exceptions for spontaneous statements or real-time audiovisual recordings. The court considered the principles of fairness and the protection of the complainant's rights, given her decision not to testify, alongside the probative value of the evidence against the potential prejudice it might cause.

Upon deliberation, the court found that the exceptions under section 294CB of the Criminal Procedure Act were satisfied, thus allowing the admission of the accused's electronic record of a police interview and the complainant's joint interview record transcript. The TikTok video was deemed inadmissible as it did not fall within the exceptions for spontaneous statements or real-time audiovisual recordings. The court concluded that the probative value of the admissible evidence outweighed any potential prejudice to the accused. The orders of the court included the admission of certain evidence and directed the trial to proceed with the evidence deemed admissible.

Orders

Orders of the court

See paragraphs 20, 23, 27, 31, 73, 100, 111

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

R v Tan [2023] NSWDC 227

Most Recent Citation

Adrian George Pearce and Kathryn Maree Pearce trading as Mister Cars Gold Coast v Senator the Honourable John Button, Minister of State for Industry & Commerce of the Commonwealth of Australia & Ors [1985] FCA 350 (8 FCR 388)

Cases Citing This Decision

Pearce v Button [1985] FCA 350
Citation 1

…Counsel suggested that goods pass into the common stock if they are cleared by Customs, at least if the clearance is not procured by misrepresentation. I find that the Customs officers who decided to clear the three vehicles pursuant to the declaration made by Mr Pearce on 24 July then still thought…

See all citing cases →

Cases Cited

TB v R [2019] NSWCCA 224
Citation 1 (Para 88)

…st-dating the offending does not necessarily mean that the probative value is reduced: RH v The Queen (2014) 241 A Crim R 1 at [88] – [130]; TB v R [2019] NSWCCA 224 at [104].…
Adams v R [2018] NSWCCA 303
Citation 2 (Para 67)

…jective likelihood of the offence having been committed ( GEH v R [2012] NSWCCA 150 per Beech-Jones J (as his Honour then was) at [26]; Adams v R [2018] NSWCCA 303 per Campbell J (Hoeben CJ at CL, N Adams J agreeing) citing other authorities at [168]-[169]. In R v Edwards [2015] NSWCCA 24, Harrison J said:…
McPhillamy v The Queen [2018] HCA 52
Citation 3

…-Haddad v The Queen (2015) 88 NSWLR 93 GEH v R [2012] NSWCCA 150 Hughes v The Queen (2017) 263 CLR 338 IMM v The Queen (2016) 257 CLR 300 McPhillamy v The Queen (2018) 361 ALR 13 R v Cakovski (2004) 149 A Crim R 21 R v Charbel Rahme [2004] NSWCCA 233 R v Tubou [2001] NSWCCA 243 RH v The Queen (2014) 241 A Crim R 1 TB v R [2019]…
Hughes v The Queen [2017] HCA 20
Citation 4 (Para 86)

…representation made by the complainant to the accused, that is not an essential condition for the admission of tendency evidence: Hughes v The Queen (2017) 263 CLR 338 at [37]-[39]. As I say, I accept that there is a qualitative difference between a representation made on social media, to the public at large, and in…
IMM v The Queen [2016] HCA 14
Citation 5 (Para 89)

…The issue then turns upon whether the evidence of tendency has ‘significant probative value’. In IMM v The Queen (2016) 257 CLR 300 at [46] the plurality explained that consideration needs to be given to the fact(s) in issue and the importance that the evidence has in establishing the facts; adding that the evidence…
Aravena v The Queen [2015] NSWCCA 288
Citation 6 (Para 87)

…e of the tendency, there are cases where even a single event relied upon to establish the tendency may have significant probative value: A ravena v R (2015) 91 NSWLR 258 at [86].…
R v Edwards [2015] NSWCCA 24
Citation 7 (Para 67)

…at [26]; Adams v R [2018] NSWCCA 303 per Campbell J (Hoeben CJ at CL, N Adams J agreeing) citing other authorities at [168]-[169]. In R v Edwards [2015] NSWCCA 24, Harrison J said:…
El-Haddad v The Queen [2015] NSWCCA 10
Citation 8 (Para 85)

…ecificity of the tendency informs the strength of the inferential mode of reasoning which is the hallmark of tendency evidence: El-Haddad v The Queen (2015) 88 NSWLR 93 at [72]. The suggested tendency here is very general: that she ‘represented that she was older than her biological age’ when the fact in issue was wh…
GEH v R [2012] NSWCCA 150
Citation 9 (Para 67)

…fied was so connected to the circumstances of the offence that it bore on the objective likelihood of the offence having been committed ( GEH v R [2012] NSWCCA 150 per Beech-Jones J (as his Honour then was) at [26]; Adams v R [2018] NSWCCA 303 per Campbell J (Hoeben CJ at CL, N Adams J agreeing) citing other authori…
CTM v The Queen [2008] HCA 25
Citation 10 (Para 91)

…idential burden for raising this ground of exculpation, but once that occurs, the ultimate burden falls on the Crown to disprove it ( CTM v The Queen (2008) 236 CLR 440 at [8]). In such circumstances, a Court should be reluctant to conclude that the evidence lacks significant probative value: R v Cakovski (2004) 149…
R v Rahme [2004] NSWCCA 233
Citation 11 (Para 56)

…Under a predecessor provision to s 294CB of the Criminal Procedure Act , in R v Charbel Rahme [2004] NSWCCA 233, the Court of Criminal Appeal explained that the correct procedure to determining the admissibility of evidence alleged to fall within the exceptions in s 294CB(4) is as follows:…
R v Tubou [2001] NSWCCA 243
Citation 12 (Para 70)

…In R v Tubou [2001] NSWCCA 243, the Court of Criminal Appeal held that evidence that the complainant had had consensual sexual intercourse with a person other than the accused 34 hours before the offence (sexual assault) occurred was not an event which formed part of a connected set of circumstances in which the off…
R v White [1968] HCA 19
Citation 13 (Para 63)

…ll have to endure having what might otherwise be personal and sensitive matters made public knowledge by virtue of evidence given in court: R v White (1989) 18 NSWLR 332 at 340.…

Legislation Cited

Evidence Act 1995 (Cth) 100, 108A, 135, 136, 137, 55, 65, 97
9 mentions (from Para 1)
Evidence Act 1995 (NSW) 100, 108A, 135, 136, 137, 55, 65, 97
8 mentions
Crimes Act 1900 (ACT) 66C, 80AE, 91FA, 91FB, 91H
6 mentions (from Para 3)
Criminal Procedure Act 1986 (NSW) 292E, 294CB
2 mentions

Medium Neutral Citation:	R v Tan [2023] NSWDC 227
Hearing dates:	13 June 2023
Date of orders:	14 June 2023
Decision date:	14 June 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs 20, 23, 27, 31, 73, 100, 111
Catchwords:	EVIDENCE – admissibility of evidence – whether portions of the accused’s ERISP should be excluded under s 137 of the Evidence Act 1995 (NSW) - whether exceptions under s 294CB of the Criminal Procedure Act 1986 (NSW) are engaged – whether Tik Tok video admissible – whether complainant’s JIRT is admissible where complainant not to be called
Legislation Cited:	Crimes Act 1900 (NSW) ss 66C, 80AE, 91FA, 91FB, 91H Criminal Procedure Act 1986 (NSW) ss 292E, 294CB Evidence Act 1995 (NSW) ss 55, 65, 97, 100, 108A, 135, 136, 137
Cases Cited:	Adams v R [2018] NSWCCA 303 Aravena v R (2015) 91 NSWLR 258 CTM v The Queen (2008) 236 CLR 440 El-Haddad v The Queen (2015) 88 NSWLR 93 GEH v R [2012] NSWCCA 150 Hughes v The Queen (2017) 263 CLR 338 IMM v The Queen (2016) 257 CLR 300 McPhillamy v The Queen (2018) 361 ALR 13 R v Cakovski (2004) 149 A Crim R 21 R v Charbel Rahme [2004] NSWCCA 233 R v Tubou [2001] NSWCCA 243 RH v The Queen (2014) 241 A Crim R 1 TB v R [2019] NSWCCA 224
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Office of the Director of Public Prosecutions (ODPP) Mr R Tan (accused)
Representation:	Mr S Richards for the ODPP (solicitor advocate) Mr R Stewart for the accused (Counsel)
File Number(s):	2021/00203497
Publication restriction:	Non-publication of the complainant’s name