R v Tang

Case [2007] VSCA 144 29 June 2007

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 178 of 2006

THE QUEEN
	v.
WEI TANG

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JUDGES:	MAXWELL P, BUCHANAN and EAMES JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 June 2007
DATE OF ORDERS:	29 June 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 144

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Criminal law – Appeal – Orders following judgment in [2007] VSCA 134 – Consequence of allowing appeal against conviction – Whether interests of justice require the order of a retrial or an acquittal – Consequence of conclusion that it was open to a reasonable jury to have convicted the appellant on the counts on the presentment – Consideration of appellant having already faced two trials – Consideration of seriousness of offences charged – Convictions quashed and re-trial ordered

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R Davis	Director of Public Prosecutions (Cth)
For the Appellant	Mr S A Shirrefs SC	Slades & Parsons

MAXWELL P:

I will ask Eames JA to deliver the first judgment.

EAMES JA:

The Court delivered judgment in this appeal two days ago, allowing the appeal upon upholding one of the grounds: a complaint that the learned trial judge misdirected the jury as to the elements of the offences. The Court did not then make an order as to the further disposition of the case, because counsel for the appellant sought the opportunity to make submissions on that question once he had the opportunity to read the reasons for judgment. There was no opposition by senior counsel for the respondent to that course being adopted.

Mr Shirrefs for the appellant has now submitted that rather than order a new trial on the counts on the presentment, the Court ought instead enter verdicts of acquittal pursuant to s 568(2) of the Crimes Act 1958.

The Court has a very broad discretion as to whether to order a re-trial or direct acquittal: see R v De’Zilwa.[1] The question is what the interests of justice require: see DPP (Nauru) v Fowler,[2] where the court introduced a two-stage test. The decision not to order a re-trial ought be exercised with caution and only in exceptional circumstances: see R v ALH.[3] Once the appellate court has rejected the argument that a verdict was unreasonable and could not be supported by the evidence, the proper course would ordinarily be to order a re-trial: see Dyers v R.[4] Ordinarily in those circumstances, the decision whether there ought be a re-trial is a matter that should be left to the discretion of prosecutorial authorities.[5] The range of factors that might be weighed in considering such an application is not limited.[6] In Dyers, Kirby J set out a wide range of matters that had in the past been taken into account by courts, or which might be taken into account in deciding the question,[7] and Mr Shirrefs submitted that many of those and other factors were relevant in this case.
[1](2002) 5 VR 408, 424 (Winneke P). A useful summary…

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: R v Tang [2007] VSCA 144
Case: [2007] VSCA 144
Decision Date: 29 June 2007

CaseChat Overview and Summary

In the matter of R v Tang, the respondent, the appellant sought to appeal against his conviction on two counts of murder. The appeal was brought before the Court of Appeal, which had earlier dismissed the appellant's appeal against conviction in 2007. The central issue in this appeal was whether the interests of justice required the court to order a retrial or to acquit the appellant after the appeal against the conviction was allowed. The appellant argued that it was open to a reasonable jury to have convicted him on the counts on the presentment, and that having already faced two trials, the interests of justice demanded a different outcome. The seriousness of the offences charged also factored into the court's consideration.

The court meticulously examined the evidence and the arguments presented, taking into account the fact that the appellant had already undergone two trials. The court considered the principle that the appellate court should not interfere with the jury's role in determining guilt unless there was a clear and substantial miscarriage of justice. The court also weighed the appellant's argument that it was open to a reasonable jury to have convicted him based on the evidence presented. Ultimately, the court concluded that while it was open to a reasonable jury to have convicted the appellant, the interests of justice required a re-trial due to the serious nature of the offences and the appellant's previous trials.

Given the conclusion that it was open to a reasonable jury to have convicted the appellant and considering the appellant's previous trials, the Court of Appeal quashed the convictions. The court ordered a retrial to ensure that justice was properly served, taking into account the gravity of the charges and the procedural fairness to the appellant. This decision reflects the court's careful balancing of the appellant's right to a fair trial against the public interest in resolving serious criminal charges.

Orders