Tan v R

Case [2008] NSWCCA 332

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Tan v R [2008] NSWCCA 332

FILE NUMBER(S):
2798002/07

HEARING DATE(S):
21 November 2008

JUDGMENT DATE:
19 December 2008

PARTIES:
Ken Tan
Regina

JUDGMENT OF:
Tobias JA Barr J Kirby J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 05/11/1172

LOWER COURT JUDICIAL OFFICER:
Geraghty DCJ

LOWER COURT DATE OF DECISION:
6 November 2006

COUNSEL:
A: Andrew Haesler SC
R: N Norman

SOLICITORS:
A: Eli Rahme
R: S Kavanagh (Solicitor for Public Prosecution)

CATCHWORDS:
CRIMINAL LAW – Appeal against conviction – Discharging firearm in public place – Whether miscarriage of justice
CRIMINAL LAW – Evidence – Evidentiary matters relating to witnesses – Admission of evidence – Availability of witnesses – Evidence Act 1995 s 65 – Whether witness unavailable – Witness claimed to be unable to recall subject events – Not relevantly ‘unavailable’ – Whether evidence would have otherwise been admissible – No miscarriage despite error – Prior inconsistent statement – Credibility rule – Crown application to cross-examine own witness – Evidence containing admissions by appellant – Whether impermissible hearsay evidence – Whether jury should have been allowed to take certain exhibits into jury room – ‘Swamping effect’ of evidence – Whether verdict unreasonable and insupportable by the evidence

LEGISLATION CITED:
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Evidence (Children) Act 1997 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96
Brown & Ors v R [2006] NSWCCA 69
Cox v State of New South Wales [2007] NSWSC 471; (2007) Aust Torts Reports 81-888
R v GAC (NSWCCA, 1 April 1997, unreported)
R v Germakian [2007] NSWCCA 373; (2007) 70 NSWLR 467
Jones v The Queen (1997) 191 CLR 439
Lee v The Queen (1998) 195 CLR 594
M v The Queen (1994) 181 CLR 487
MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628
Ratten v The Queen (1974) 131 CLR 510
R v RTGS [2005] NSWCCA 293
R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182

TEXTS CITED:

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 2798002/07

TOBIAS JA
BARR J
KIRBY J

Friday 19 December 2008

KEN TAN v R

Judgment

  1. TOBIAS JA:  The appellant was arraigned and pleaded not guilty before his Honour Judge Geraghty and was tried before a jury of 12 on 17 October 2006 at the Sydney District Court.  The indictment alleged two counts of discharging a firearm in a public place (s 93G(1)(b) of the Crimes Act 1900) and one count of receiving a motor vehicle (s 88(1)(a) of the Crimes Act).  On 9 November 2006 the jury convicted the appellant of the two counts of discharging a firearm, there having been a verdict of not guilty by direction with respect to the receiving count. 

  2. On 14 December 2006 the appellant was sentenced on…

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Details
AGLC
Tan v R [2008] NSWCCA 332
Case
[2008] NSWCCA 332
Decision Date

CaseChat Overview and Summary

In the case of Tan v R, the appellant was convicted of discharging a firearm in a public place, and he appealed against the conviction. The central issue in this appeal was whether there was a miscarriage of justice due to the admission of certain evidence, the availability of a key witness, and the handling of prior inconsistent statements. The court had to determine if the trial judge's decisions on these matters led to an unfair trial or an unreasonable verdict.

The legal issues revolved around the admissibility of evidence under the Evidence Act 1995, specifically the provisions allowing for cross-examination of a party's own witness and the definition of "unavailable" witnesses. The court examined whether the witness, Lenati, was truly unavailable as claimed, and whether his evidence would have been admissible under different circumstances. Additionally, the court considered whether the Crown's application to cross-examine Lenati about prior inconsistent statements was permissible and whether the jury should have been allowed to take certain exhibits into the jury room.

The court found that, despite some errors in the admission of evidence, there was sufficient reliable evidence to support the jury's verdict. The court held that Lenati was not truly unavailable as he had made prior statements that contradicted his testimony, and the trial judge's decisions did not prejudice the appellant's case. The court also concluded that any errors did not lead to a miscarriage of justice, as the evidence was otherwise admissible and the verdict was supported by the totality of the evidence presented. Therefore, the appeal against the conviction was dismissed.

The final orders of the court were to dismiss the appellant's appeal against his conviction, affirming the jury's verdict as reasonable and supported by the evidence. The judges, Tobias JA, Barr J, and Kirby J, unanimously agreed on this outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The other two witnesses were “Eddy” Latu (Latu) and Tevita “Deder” Fifita (Fifita). To a lesser extent than Lenati, they also implicated the appellant in the shooting. However, as I have noted, without the evidence of Lenati, their evidence would not have been sufficient to convict the appellant beyond reasonable doubt.The Crown application under ss 38 and 65 of the Evidence Act 1995 The Crown was aware that Lenati would not be a co-operative witness because of two prior trials with respect to the subject charges that had been aborted. The trial judge was so informed, it being foreshadowed that Lenati would be called on the voir dire for the purpose of laying the ground work for an application by the Crown under s 38(1) of the Evidence Act 1995 (the Act) to cross-examine him with respect to the contents of what became Exhibits E and F. It is convenient, therefore, to set out the provisions of s 38(1):“A party who called a witness may, with the leave of the court, question a witness, as though the party were cross-examining the witness, about(a)evidence given by the witness that is unfavourable to the party; or(b)a matter of which the witness may reasonably suppose to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or(c)whether the witness has, at any time, made a prior inconsistent statement.” The expression “prior inconsistent statement” is defined in the Dictionary to the Act to mean“a previous representation that is inconsistent with evidence given by the witness”. Lenati was examined on the voir dire. After being informed that he was in Court to give evidence in relation to the trial of the appellant in relation to charges involving the drive-by shooting at Frangieh’s house in Merrylands on 25 September 2003 and on being reminded that he had been granted an indemnity provided that he actively co-operated in the proceedings brought against the appellant, he was then asked whether he had been in a flat (being that of the sister of Minnie Me referred to at [6] above) with, amongst others, the appellant on that date. The following exchange then relevantly took place between Lenati and the Crown Prosecutor:“Q.Were you in a flat at any time on 25 September 2003 with any of those persons I’ve just named?A.Not that I can remember.Q. Not that you can remember?A. No.…Q. Do you remember that drive-by shooting at all?A.Well I’ve put it all, you know, I’ve tried to dig it all up, but not that clear.HIS HONOUR: Q. No the question is do you remember the drive-by shooting at all?A. … No. Not to my knowledge your Honour.…CROWN PROSECUTOR: Q. Do you have any recollection of a drive-by shooting on 25 September 2003 at … Merrylands?A. Not that I can recall.…HIS HONOUR: Q. Mr Lenati you have given assurances to the community that you would cooperate in giving evidence?A. Yep.Q.In this matter and other matters. You are not making any effort whatsoever to remember any of those matters?A.Well I have your Honour.Q.I don’t believe anything you’ve said about your loss of memory?A.Well it’s not loss of memory, it’s just that I’ve put it all, I’ve gone. You know, I’ve moved past it.…Q.Do you have any recollection of telling the police anything at any time about a drive by shooting on 25 September 2003?A.I told the police a lot of things while they were around me so that could be one of them.Q.Do you now not recall what you said to the police?A.I now stand by whatever is on the statements, whatever is there I stand by it.”

Decision

Reasons for decision

In my opinion, there was admissible evidence that it was open to the jury to accept as sufficiently reliable to implicate the appellant in the offences with which he was charged beyond reasonable doubt. Accordingly, I would not regard the jury’s verdict as either unreasonable or lacking support having regard to the evidence. Ground 5 should therefore be rejected.Conclusion In my opinion each of the challenges to the jury’s verdict should be rejected. I would therefore propose that the appeal by the appellant against his conviction be dismissed. BARR J: I agree with Tobias JA. KIRBY J: I agree with Tobias JA.**********

Ratio Decidendi

Legal Principle Established

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