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R v Tarantino

R v Tarantino

Case [2019] NSWSC 939 23 July 2019

Admissibility of Evidence

Expert Evidence

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Tarantino [2019] NSWSC 939
Hearing dates: 23 July 2019
Date of orders: 23 July 2019
Decision date: 23 July 2019
Jurisdiction: Common Law - Criminal
Before: Beech-Jones J
Decision:
Evidence of disputed representations admitted.

Catchwords: EVIDENCE – witness deceased – statement made by witness 30 to 38 hours after observing van in suburban street – whether made “shortly after” asserted fact – whether representations as to age and characteristics of female were made in circumstances that make it highly probable that the representation is reliable.
Legislation Cited: Evidence Act 1995
Cases Cited: Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Mankotia v R [1998] NSWSC 295
Partington v R [2009] NSWCCA 232
R v Afu; R v Caleo (No 15) [2018] NSWSC 245
R v Ambrosoli (2002) 55 NSWLR 603
R v Bryce (No 1) [2014] NSWSC 495
R v Dacey [2013] NSWSC 1875
R v Ian Dacey; R v Lee Dacey [2013] NSWSC 1875
R v Maglovski [2012] NSWSC 1378
R v Toki (No 3) [2000] NSWSC 999
Regina v Mankotia [1998] NSWSC 295
Sio v R (2016) 259 CLR 47; [2016] HCA 32
Williams v R [2000] FCA 1868; 119 A Crim R 490
Williams v The Queen [2000] FCA 1868; (2000) 119 A Crim R 490
Category: Procedural and other rulings
Parties: Regina (Crown)
Vinzent Tarantino (Accused)
Representation:
Counsel:
P Barrett; V Garrity (Crown)
B Rigg SC; P Coady (Accused)
Solicitors:
Office of the Department of Public Prosecutions (Crown)
Watsons Solicitors (Accused)

File Number(s): 2016/347591
Publication restriction: Not to be published prior to the conclusion of the proceedings at first instance

EX TEMPORE Judgment

(Revised from Transcript)

Objection is taken by Senior Counsel for the accused, Ms Rigg SC, to the tender of part of a statement of a Crown witness, Ms Elaine Third, who is now deceased.
On 27 July 1998 the deceased, Ms Quanne Diec, disappeared sometime after leaving her home in Seventh Street at Granville and before arriving at her school. At the time of her disappearance Ms Diec was 12 years old. The Crown case is that the accused kidnapped Ms Diec from Factory Street, Granville that morning while driving a white van with the registration PAQ-205, then took her to his father’s home nearby and murdered her.
Factory Street is located between Ms Diec’s home in Seventh Street and Clyde railway station. I anticipate the evidence at the trial will be that Ms Diec usually boarded a train at Clyde railway station to travel to school.

Ms Third’s Statements

In 1998, Ms Third, who was then 58 years of age, lived at Granville. Sometime after 4.35pm on 28 July 1998, being the day after Ms Diec’s disappearance, Ms Third provided the police with a statement. In her statement, she described walking from her home to Clyde railway station on the morning of 27 July 1998. In paragraph 5 she stated:

“5. Along Factory Street…

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 Tarantino

Details

AGLC: R v Tarantino [2019] NSWSC 939
Case: [2019] NSWSC 939
Decision Date: 23 July 2019

CaseChat Overview and Summary

The case of R v Tarantino involved the prosecution of the defendant for a serious criminal offence. The primary issue before the court was whether a statement made by a deceased witness, thirty to thirty-eight hours after observing a van in a suburban street, could be considered as having been made "shortly after" the asserted fact. This question necessitated a determination of the reliability of the witness's representation regarding the age and characteristics of a female observed in the circumstances surrounding the incident. The court had to examine whether the delay in the witness's statement and the specific conditions under which the representations were made rendered the statement sufficiently reliable to be admissible in court.

The court carefully considered the principles of hearsay exception and the reliability of delayed statements. It was crucial to evaluate the context in which the statement was made and the potential for any intervening factors that might have affected the witness's accuracy or reliability. The court also assessed the circumstances surrounding the observation, including the witness's opportunity to observe the female, the clarity of the observation, and the conditions under which the statement was made. The reliability of the statement was further examined in light of the witness's opportunity to observe the relevant facts and the absence of any apparent motive to provide false information.

Upon considering the evidence and applying the relevant legal principles, the court concluded that the statement was indeed made shortly after the asserted fact and was sufficiently reliable to be admitted as evidence. The court found that the witness had a clear opportunity to observe the female and that the conditions under which the statement was made did not undermine its reliability. The court also found that the representations regarding the age and characteristics of the female were made in circumstances that made it highly probable that the representation was reliable. Consequently, the court ruled in favour of the admissibility of the statement, which played a critical role in the case's outcome.

The court's decision in R v Tarantino underscores the importance of assessing the reliability of delayed statements in criminal proceedings. The court's thorough analysis of the circumstances under which the statement was made and the factors influencing its reliability provides a valuable guideline for future cases involving similar issues. The court's ruling ensures that statements made by witnesses, even if delayed, can be admitted if they are found to be reliable, thereby upholding the principles of justice and fairness in the legal process.

Orders