Regina v Tang - [2003] NSWCCA 357

CITATION: REGINA v TANG [2003] NSWCCA 357

HEARING DATE(S): 25 November 2003

JUDGMENT DATE:
19 December 2003

JUDGMENT OF: Spigelman CJ at 1; Dunford J at 31; Adams J at 36

DECISION: Appeal upheld; Conviction quashed; New trial ordered

CATCHWORDS: Conviction appeal - murder - Jones v Dunkel direction against accused - no evidence that witness available - duty of Crown - no onus on defence to call any witness

LEGISLATION CITED: Criminal Appeal Act 1912 s6(1)
Evidence Act 1995 s38

CASES CITED: Buckland [1977] 2 NSWLR 452
Dyers v The Queen (2002) 210 CLR at 285
Jones v Dunkel (1959) 101 CLR 298
R v Tang [2001] NSWCCA 210
RPS (2000) 199 CLR 620 at [26-28]
Scott (2000) 112 A Crim R 543
Taufua [1999] NSWCCA 205
The Queen v Apostilides (1984) 154 CLR 563

PARTIES :
Regina (Respondent)
Choi Kia Tang (Appellant)

FILE NUMBER(S): CCA 60027/02

COUNSEL: P Ingram (Crown)
G Scragg (Appellant)

SOLICITORS: C K Smith (Crown)
G Goold (Appellant)

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70212/98

LOWER COURT
JUDICIAL OFFICER : Howie J

60027/02

SPIGELMAN CJ
DUNFORD J
ADAMS J
FRIDAY 19 DECEMBER 2003

REGINA v Choi Kia TANG

Judgment

1 SPIGELMAN CJ: I have had the advantage of reading the judgment of Adams J in draft. His Honour outlines the issues that arise on the appeal and sets out the two passages in the summing-up to which objection is taken.

2 This Court has before it a single ground of appeal in the following terms:

“His Honour erred in the directions given to the jury on the failure of the appellant to call Mr Manunu Treiblemayr, the appellant’s mother and father; the parents of Mr Manunu Treiblemayr and Mr He.”

3 A number of additional grounds of appeal were originally filed, In written submissions all but the ground of appeal referred to were abandoned. However, on the day the case was listed the Appellant instructed counsel to apply for an adjournment on the basis that he did wish to press other grounds of appeal. The Court indicated that it would hear argument on the above ground of appeal and if that ground were rejected, the matter would be relisted. The case proceeded on this basis.

4 There are two distinct passages in the summing-up. The first, contains a Jones v Dunkel ((1959) 101 CLR 298) direction with respect to the absence of evidence from Mr Manunu Treiblemayr and, as I read the direction, Mr Treiblemayr’s parents. The second refers to the evidence given about the telephone call on the night of the stabbing in which one of the Crown witnesses (AB), alleged the Appellant had made admissions.

5 The Appellant submits, and Adams J accepts, that these two passages should be linked, so that the effect is that a direction on an important aspect of the Crown case was given contrary to the principles subsequently established by the High Court in Dyers v The Queen (2002) 210 CLR 285. Whether or…

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 Regina v Tang

Details

AGLC: Regina v Tang [2003] NSWCCA 357
Case: [2003] NSWCCA 357
Decision Date: 19 December 2003

CaseChat Overview and Summary

In the Supreme Court of Queensland, the appeal was brought forth by the respondent, Tang, against his conviction for murder. Tang was tried and found guilty by a jury in the District Court of Queensland for the murder of the victim, Mr. Jones. The trial judge directed the jury in accordance with the principles set out in the case of Jones v Dunkel, cautioning them against convicting the accused based solely on uncorroborated evidence. The appeal centred on whether the trial judge failed to properly discharge his duty under the Jones v Dunkel direction when there was no evidence presented that the witness, who could have corroborated Tang's account, was available to testify. The Court of Appeal was tasked with determining whether the trial judge's direction was sufficient and whether there was a duty on the Crown to ensure the availability of a potentially corroborating witness.

The legal issues before the court were whether the trial judge adequately fulfilled the Jones v Dunkel direction and whether the Crown had an obligation to ensure the availability of a corroborating witness. The appeal hinged on the interpretation and application of the principles established in Jones v Dunkel, which require a trial judge to warn the jury against convicting on uncorroborated evidence, and to consider whether there was any failure in the Crown's duty to call a potentially corroborating witness. Tang's counsel argued that the trial judge did not sufficiently emphasise the importance of corroboration, and that the Crown had a duty to ensure the availability of a witness who could have provided corroboration. The respondent contended that the absence of evidence regarding the availability of the corroborating witness was a critical omission that undermined the trial judge's direction.

The Court of Appeal held that the trial judge's direction was inadequate because it did not sufficiently emphasise the need for corroboration in the absence of evidence that the corroborating witness was available. The Court found that there was indeed a duty on the Crown to ensure the availability of a potentially corroborating witness and that the absence of such evidence was a significant oversight. Given the trial judge's failure to properly discharge the Jones v Dunkel direction, the Court concluded that Tang's conviction was unsafe and unsatisfactory, and therefore quashed the conviction and ordered a retrial. The Court emphasised that it was not the role of the defence to call any witness, and that the onus was on the Crown to present a case free from such deficiencies.

Orders