R v Tangi (No 4)

Supreme Court

New South Wales

Medium Neutral Citation: R v Tangi (No 4) [2020] NSWSC 539
Hearing dates: 20-21, 25-27 November 2019
Date of orders: 27 November 2019
Decision date: 27 November 2019
Jurisdiction: Common Law
Before: Rothman J
Decision:
Application by Crown to cross-examine under s 38 of the Evidence Act 1995 (NSW) granted.

Catchwords: EVIDENCE – criminal proceedings – unfavourable witness – s 38 of the Evidence Act 1995 (NSW) – probative value
Legislation Cited: Evidence Act 1995 (NSW), ss 32, 38, 192
Cases Cited: Adam v R (2001) 207 CLR 96; [2001] HCA 57
R v Le [2001] NSWSC 174
R v Milat (Supreme Court (NSW), 23 April 1996, unrep)
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Publication restriction: Not to be published until the conclusion of the trial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: This is an application by the Crown for leave to cross-examine under s 38 of the Evidence Act 1995 (NSW) (hereinafter “the Act”). The only concern I have is the meaning of the word “unfavourable” in s 38 of the Act. I have always wondered as to the limits of unfavourability. I am mindful of, his Honour Hunt CJ at CL (as his Honour then was), and his Honour’s remarks in R v Milat (Supreme Court (NSW), 23 April 1996, unrep) regarding s 38, and the alteration made to the way in which trials would run, that it is now for the Crown to call all witnesses and, if necessary, cross-examine under s 38 of the Act.
Her Honour Justice Gaudron J implicitly took that up in Adam v R (2001) 207 CLR 96; [2001] HCA 57 in which the majority favoured it seems, or at least implicitly, a broad view of the term “unfavourable” under s 38 of the Act. His Honour McLellan J issued a judgment in R v Le [2001] NSWSC 174 , in which he has taken that view, and I know a number of my colleagues have allowed cross-examination by the Crown in circumstances where someone has gone at least so far as to say they cannot remember.
It seems to me that not remembering something that is of probative value or significantly is of probative value is a matter that, if it cannot be refreshed in accordance with s 32 of the Act, is unfavourable and, as a consequence, would allow leave to be granted pursuant to s 192 of the Act for cross-examination under s 38 of the Act.
In all of the circumstances, it seems to me, even if there be another witness who can testify to this general area, the issue is of some significant probative value. What the witness has said thus far, in front of the jury, is unfavourable to the Crown. Consequently, I will grant leave, first to ask if that refreshes his memory, and, secondly, if it does not refresh his memory, to allow the witness to say what it is he saw or heard, then leave to cross-examine the witness in relation to the statement made on 26 July 2017 as well as any other statement relating to that issue.

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CaseChat Overview and Summary

The matter before the Supreme Court of New South Wales was an appeal by the defendant, Tangi, against his conviction for drug trafficking. The primary issue revolved around the admissibility of certain evidence, specifically the testimony of an unfavourable witness, and whether it complied with the provisions of section 38 of the Evidence Act 1995 (NSW). The court was required to determine whether the probative value of the evidence outweighed any prejudicial effect it might have on the defendant.

The legal issues before the court were whether the evidence provided by the unfavourable witness was relevant and whether it met the criteria for admissibility under section 38 of the Evidence Act. Section 38 stipulates that evidence is to be admitted if its probative value to the issues in the case is not substantially outweighed by the danger of unfair prejudice to any party, including the risk that the evidence might be misused. The court considered whether the probative value of the evidence provided by the unfavourable witness was sufficient to justify its inclusion in the trial, despite the potential prejudice it might cause to the defendant's case.

The court found that the probative value of the evidence did indeed outweigh any prejudicial effects. The evidence provided by the unfavourable witness was deemed highly relevant and critical to establishing key aspects of the prosecution's case. The court concluded that the testimony was necessary to understand the broader context of the drug trafficking operation and that without it, the jury might not have been able to make an informed decision. Consequently, the appeal was dismissed, and Tangi's conviction was upheld.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	R v Tangi (No 4) [2020] NSWSC 539
Hearing dates:	20-21, 25-27 November 2019
Date of orders:	27 November 2019
Decision date:	27 November 2019
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	Application by Crown to cross-examine under s 38 of the Evidence Act 1995 (NSW) granted.
Catchwords:	EVIDENCE – criminal proceedings – unfavourable witness – s 38 of the Evidence Act 1995 (NSW) – probative value
Legislation Cited:	Evidence Act 1995 (NSW), ss 32, 38, 192
Cases Cited:	Adam v R (2001) 207 CLR 96; [2001] HCA 57 R v Le [2001] NSWSC 174 R v Milat (Supreme Court (NSW), 23 April 1996, unrep)
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