R v Tang

Case [2001] NSWCCA 210 28 May 2001

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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.

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.

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

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

Children (Criminal Proceedings) Act

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

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 Tang

Details

AGLC: Regina v Tang [2001] NSWCCA 210
Case: [2001] NSWCCA 210
Decision Date: 28 May 2001

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