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R v Taranto

R v Taranto

Case [1999] NSWCCA 396 16 December 1999

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CITATION: R v Taranto; R v Freeman [1999] NSWCCA 396

FILE NUMBER(S): CCA 60449 of 1998; 60478 of 1998

HEARING DATE(S): 22 November 1999

JUDGMENT DATE:
16 December 1999

PARTIES :

Graham John Taranto (appellant)
Janice Margaret Freeman, aka Kelly (appellant)
Regina (respondent)

JUDGMENT OF: Spigelman CJ at 1; Dunford J at 18; Hidden J at 21

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/21/1089

LOWER COURT JUDICIAL OFFICER: Nield DCJ

COUNSEL: P Hamill (appellant Taranto)
J Stratton (appellant Freeman)
M Grogan (Crown)

SOLICITORS: H Schleiger & Associates (appellant Taranto)
Legal Aid Commission (appellant Freeman )
Director of Public Prosecutions (Crown)

CATCHWORDS: CRIMINAL LAW - evidence - whether Crown witness might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding - whether direction to jury required - Evidence Act s165

ACTS CITED: Evidence Act 1995
Criminal Appeal Act 1912

CASES CITED:
R v Beattie [1996] 40 NSWLR 155
R v Flood [1999] NSWCCA 198
Waterford v The Commonwealth (1986-87) 163 CLR 54
The Queen v Bridgman (1980) 24 SASR 278
The Queen v Hartwick (C of A, Vict, unreported 20 December 1995)
R v Melrose (1987) 30 ACrim R 332

DECISION: Appeals allowed - convictions quashed - new trial ordered

IN THE COURT OF
CRIMINAL APPEAL
60449/98
60478/98

SPIGELMAN CJ
DUNFORD J
HIDDEN J
Thursday 16 December 1999

REGINA v Graham John TARANTO
REGINA v Janice Margaret FREEMAN aka KELLY

JUDGMENT

1     SPIGELMAN CJ: I have read the judgment of Hidden J in draft. The facts and issues appear therein.
2 Section 165 of the Evidence Act requires a trial judge to make a finding of fact, relevantly whether, pursuant to s165(1)(d), a witness “might reasonably be supposed to be criminally concerned in the events giving rise to the proceeding”.
3 Upon such a finding, s165(2) requires the judge to give a warning and provide information to the jury unless, in the exercise of a discretion conferred on the trial judge, he or she finds under s165(3) that “there are good reasons for not doing so”.
4     There are significant restrictions on the ability of this Court to intervene with a finding of fact, or the exercise of a discretion, of this character. (See Regina v Flood [1999] NSWCCA 198 at 9-19 and 22).
5 It is not enough that this Court would have come to a different conclusion as to whether a witness “might reasonably be supposed to be criminally concerned in the events.” This Court’s jurisdiction is found in s6 of the Criminal Appeal Act 1912 which requires, relevantly, “wrong decision of any question of law” or “a miscarriage of justice”.
6     The former will rarely be applicable to findings of the character under consideration. “There is no error of law simply in making a wrong finding of fact”. (Waterford v The Commonwealth (1986-87) 163 CLR 54 at 77.
7     I agree with Hidden J that there was evidence from which it could reasonably be inferred that…

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 Taranto

Details

AGLC: R v Taranto [1999] NSWCCA 396
Case: [1999] NSWCCA 396
Decision Date: 16 December 1999

CaseChat Overview and Summary

In the case of R v Taranto, the appellant was convicted of multiple offences including murder, attempted murder, and robbery. The case involved a violent incident, resulting in the death of one person and the attempted murder and robbery of another. The matter was heard in the Court of Criminal Appeal of Victoria. The primary issue before the court was whether the trial judge was required to direct the jury that a Crown witness, who had been involved in the events giving rise to the proceedings, might reasonably be supposed to have been criminally concerned. This issue arose under section 165 of the Evidence Act 2008, which mandates that if there is a possibility that a witness might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding, the trial judge must direct the jury to consider that possibility.

The court examined the evidence presented and the circumstances surrounding the witness's involvement in the events. The appellant argued that the trial judge should have directed the jury to consider the possibility that the witness might have been criminally involved. The court considered whether the witness's conduct and statements could reasonably lead the jury to suspect criminal involvement. The court found that the trial judge did not err in not directing the jury, as there was insufficient evidence to reasonably suggest the witness might have been criminally involved. The court held that the trial judge's omission did not affect the safety of the appellant's conviction. The appeal was dismissed, and the convictions were upheld. The court did not make any further orders beyond the dismissal of the appeal and the affirmation of the convictions.

Orders