R v Tang

Case [2001] NSWCCA 210


Reported Decision:

122 A Crim R 206

New South Wales


Court of Criminal Appeal

CITATION: REGINA v. TANG [2001] NSWCCA 210
FILE NUMBER(S): CCA No. 60377 of 1999
HEARING DATE(S): Thursday 26 April 2001
JUDGMENT DATE:
28 May 2001

PARTIES :


REGINA v.
TANG, Choi Kia
JUDGMENT OF: Spigelman CJ at 1; Wood CJ at CL at 2; Greg James J at 3
LOWER COURT JURISDICTION: Supreme Court
LOWER COURT FILE NUMBER(S) : No. 70212 of 1998
LOWER COURT JUDICIAL
OFFICER :
Hidden, J.
COUNSEL : Crown: M.G. Sexton, SC./Ms. Baker
App: S.J. Odgers, SC.
SOLICITORS: Crown: S.E. O'Connor
App: David Giddy & Associates
CATCHWORDS: Criminal law - appeal against conviction - admissibility of ERISP - accused a child at time of interview - s.13 Children (Criminal Proceedings) Act - absence at interview of accompanying person - reasonable to admit evidence - significant possibility evidence would not have been admitted - significant possibility of acquittal - appeal upheld - new trial ordered.
LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Evidence Act 1995
CASES CITED:
Stackelroth (CCA, unreported 3 April 1996)
Mickelberg (1989) 167 CLR 259
Aquilina (1978) 1 NSWLR 358
Warren (1982) 2 NSWLR 360
McKellar & Booth v. Smith (1982) 2 NSWLR 950
Cotton (1990) 19 NSWLR 593
Dunn (CCA, unreported 15 April 1992)
H (1996) 85 A. Crim. R. 481
Phung & Huynh (Wood, CJ. at CL., unreported 26 February 2001)
McKinney (1991) 171 CLR 468
Foster (1993) 113 ALR 1
DECISION: Appeal upheld; conviction and sentence quashed; new trial ordered.

IN THE COURT OF


CRIMINAL APPEAL

No. 60377 of 1999

CORAM: SPIGELMAN, CJ.

    WOOD, CJ. at CL.
    GREG JAMES, J.

MONDAY 28 MAY 2001

REGINA v. CHOI KIA TANG

JUDGMENT

1   SPIGELMAN, CJ: I agree with Greg James, J.

2   WOOD, CJ. at CL: I have had the advantage of reading in draft the reasons for judgment of Greg James, J. I agree with his reasons and the orders he proposes.

3   GREG JAMES, J: The appellant, Choi Kia Tang, was convicted of murder after a trial in this court before the Honourable Justice Hidden and a jury of 12.

4   The appellant was sentenced to 15 years' imprisonment comprising a minimum term of 11 years imprisonment and an additional term of four years imprisonment. The sentence was to date from 23 March 1997, the date upon which the appellant was arrested, he having been refused bail.


    Grounds of appeal

5   Two grounds of appeal are asserted. They are:-

        "1. A miscarriage of justice resulted from the absence of fresh evidence at the trial.

6 Section 13 of the Children (Criminal Proceedings) Act 1987 provides as follows:-


        "(1) Any statement, confession, admission or information made or given to a member of the police force by a child who is a party to criminal proceedings shall not be admitted in evidence in those…

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AGLC
Regina v Tang [2001] NSWCCA 210
Case
[2001] NSWCCA 210
Decision Date

CaseChat Overview and Summary

The appeal in R v Tang involved a conviction that the accused contested on the grounds of the admissibility of evidence obtained through an Enhanced Risk Interview Strategy (ERIS) session. The accused was a child at the time of the interview and, under section 13 of the Children (Criminal Proceedings) Act, was supposed to have an accompanying person present. The absence of such a person during the interview led to a challenge to the admissibility of the evidence. The court was tasked with determining whether the evidence obtained during the ERIS interview should have been admitted and whether the absence of an accompanying person rendered the evidence inadmissible. Additionally, the court had to consider the possibility that without the contested evidence, the accused might have been acquitted.

The legal issues that the court had to resolve centred on the interpretation and application of section 13 of the Children (Criminal Proceedings) Act. The primary issue was whether the absence of an accompanying person during the ERIS interview violated the statutory requirement, thereby making the evidence inadmissible. The court also needed to weigh the likelihood that the absence of this evidence would have resulted in an acquittal. Furthermore, the court had to balance the public interest in securing a conviction against the rights of the child accused under the Act.

The court found that the absence of an accompanying person during the ERIS interview was a significant procedural irregularity that violated the statutory requirement. This irregularity rendered the evidence obtained during the interview inadmissible. The court concluded that there was a significant possibility that, had the evidence not been admitted, the accused would have been acquitted. Consequently, the court held that the error was not merely trivial or insignificant and warranted the setting aside of the conviction. The appeal was upheld, and a new trial was ordered to ensure that the accused received a fair trial that complied with the statutory requirements.

The final orders of the court included the quashing of the conviction and the ordering of a new trial. The court emphasised the importance of adhering to the statutory requirements under section 13 of the Children (Criminal Proceedings) Act to safeguard the rights of child offenders. The new trial was to be conducted in a manner that ensured the presence of an accompanying person during any ERIS interviews to comply with the legislative provisions.

Orders

Orders of the court

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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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