R v Tangi (No 10) - [2020] NSWSC 545

Supreme Court

New South Wales

Medium Neutral Citation: R v Tangi (No 10) [2020] NSWSC 545
Hearing dates: 20-21, 25-29 November, 2-6, 9-11 December 2019
Date of orders: 11 December 2019
Decision date: 11 December 2019
Jurisdiction: Common Law
Before: Rothman J
Decision:
Objection to evidence rejected.

Catchwords: CRIME – EVIDENCE – Admissibility of extra curial representations of persons called to give evidence – operation of s 66(3) of Evidence Act 1995 (NSW) discussed – subsection concerned with purpose of maker of representations – representations admitted
Legislation Cited: Evidence Act 1995 (NSW), ss 55, 56, 59, 66, 137, 135
Cases Cited: Farah Constructions v Say Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
R v Esposito (1998) 45 NSWLR 442; (1998) 105 A Crim R 27
Category: Procedural and other rulings
Parties: Regina (Crown)
Abraham Ryan Tangi (Accused)
Representation:
Counsel:
P Hogan (Crown)
G Wendler (Accused)
Solicitors:
Director of Public Prosecutors (NSW) (Crown)
Universal Lawyers (Accused)

File Number(s): 2017/242644
Publication restriction: Not to be published until the conclusion of the trial

EX TEMPORE Judgment

HIS HONOUR: The Crown seeks to adduce evidence of representations made by certain witnesses who have been called. For obvious reasons, the witnesses are and were available to give evidence about the alleged asserted fact. The major issue between the parties is the construction of s 66(3) of the Evidence Act 1995 (NSW) (“the Act”).
I do not suggest that each witness gave evidence to precisely the same effect. Some said they did not recall what occurred on 19 June 2017, the alleged date of the assault; some said they did not remember saying anything to Police; there were denials of making any statements to Police; and a denial of attending the Police Station. Statements of three Police Officers [Detective Senior Constable Murdoch of 27 August 2017 (Ex J on the Voir Dire); Detective Sergeant Fokes of 27 September 2017 (Ex H on the Voir Dire); and Senior Constable White of 23 June 2018 (Ex N on the Voir Dire)] purport to provide or record statements or comments by each relevant available witness.
Without over-generalising, it is sufficient to recite that the statements or comments were: firstly, not formal statements of evidence; secondly, not recorded electronically; and, thirdly, made in circumstances where each witness declined or refused to make a statement as to the evidence he could give, other than, in one or two cases, a statement to the effect that he did not assault or was not involved in the assault of the deceased.
If accepted as accurate, which it must be for the present purpose, the evidence is highly probative. Of course, that requires three issues relating to veracity: the accuracy of the particular Police Officer’s account of what was said; the accuracy of what was said by each witness to the Police Officer; and, where the witness has denied that the comments were made, a conclusion that the denial is untrue or inaccurate.
The Crown seeks to rely, for…

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 Tangi (No 10)

Details

AGLC: R v Tangi (No 10) [2020] NSWSC 545
Case: [2020] NSWSC 545
Decision Date: 11 December 2019

CaseChat Overview and Summary

The case of R v Tangi (No 10) was heard in the New South Wales Supreme Court. The dispute involved the admissibility of extra curial representations made by a witness, which were intended to be called to testify in the trial. The defendant, Tangi, was facing criminal charges and sought to exclude the representations on the basis that they were hearsay and potentially prejudicial. The prosecution argued that the representations were admissible under section 66(3) of the Evidence Act 1995 (NSW), which pertains to the admissibility of statements made by persons called to give evidence.

The court was required to determine whether the statutory provision was applicable in this context and, if so, whether it was sufficient to admit the representations. The primary focus was on the purpose of the maker of the representations and whether the statutory provision was concerned with the purpose of the maker. The court had to examine the legislative intent behind section 66(3) and its application to the specific circumstances of the case.

The court held that section 66(3) of the Evidence Act 1995 (NSW) was indeed applicable to the situation at hand. The court found that the provision was concerned with the purpose of the maker of the representations, and as such, the extra curial statements were admissible. The court reasoned that the statutory provision allowed for the admission of such statements when the purpose of the maker is relevant to the issues in the case. The court ultimately determined that the representations were admissible, as they were relevant to the credibility and reliability of the witness who was intended to testify. The court's decision allowed for the evidence to be considered by the trier of fact in determining the guilt or innocence of the defendant.

Orders