TIET -v- THE QUEEN [2006] WASCA 32

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 32
Court:	THE COURT OF APPEAL (WA)
Case No:	CCA:75/2003	Heard:	10 FEBRUARY 2006
Coram:	WHEELER JA PULLIN JA BUSS JA	Delivered:	2/03/06
No of pages:	12	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	GIANG THANH TIET THE QUEEN
Catchwords:	Appeal Criminal law and procedure Directions to jury Direction concerning exculpatory out-of-court statements Objection to admissibility of evidence Need for proper foundation Duty of counsel Foreshadowed or provisional ruling by trial Judge
Legislation:	Evidence Act 1906 (WA), s 8(1)(e)(ii)
Case References:	Mule v R [2005] HCA 49; (2005) 79 ALJR 1573 Tanner v The Queen [2001] WASCA 60 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : TIET -v- THE QUEEN [2006] WASCA 32 CORAM : WHEELER JA

PULLIN JA

BUSS JA

HEARD : 10 FEBRUARY 2006 DELIVERED : 2 MARCH 2006 FILE NO/S : CCA 75 of 2003 BETWEEN : GIANG THANH TIET

Appellant

AND

THE QUEEN

Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : ROBERTS-SMITH J

File No : INS 230 of 2002

Catchwords:

Appeal - Criminal law and procedure - Directions to jury - Direction concerning exculpatory out-of-court statements - Objection to admissibility of evidence - Need for proper foundation - Duty of counsel - Foreshadowed or provisional ruling by trial Judge

(Page 2)

Legislation:

Evidence Act 1906 (WA), s 8(1)(e)(ii)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Mr K P Bates & Mr A D Sullivan

Solicitors:

Appellant : In person

Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Mule v R [2005] HCA 49; (2005) 79 ALJR 1573
Tanner v The Queen [2001] WASCA 60

Case(s) also cited:

Nil

(Page 3)

WHEELER JA

Background

1 This is an appeal from the appellant's conviction of murder. The appellant was tried before a jury in May of 2003, and convicted on 15 May 2003. The prosecution case was broadly as follows. The deceased, Leo Le, aged 16, took a knife, which has been described as a "short samurai sword", to an Internet cafe in the early hours of the morning of 8 June 2002. He was a member of a gang known as the "Spider Boys". The appellant, then 20, was already at the cafe with two other friends. They were sitting on chairs either playing a computer game or watching each other play.

2 The deceased and a friend entered the cafe. The deceased attacked the appellant as he sat at his chair. The appellant was injured as a result of that attack, sustaining an abrasion just above his left elbow. Almost immediately, an off-duty police officer named Leahy tried to break the altercation up. He grabbed the deceased and pulled him away from the appellant. The deceased's friend then picked up the scabbard of…

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 Tiet v The Queen

Details

AGLC: Tiet v The Queen [2006] WASCA 32
Case: [2006] WASCA 32
Decision Date: 2 MARCH 2006

CaseChat Overview and Summary

The case of Tiet v The Queen involved an appeal against the trial judge's direction to the jury regarding the admissibility of certain exculpatory out-of-court statements. The defendant, Tiet, had been convicted of multiple serious offences and appealed on the basis that the trial judge had misdirected the jury on the admissibility of evidence related to his out-of-court statements. The High Court of Australia was called upon to determine whether the trial judge had erred in his direction to the jury.

The central legal issue before the court was whether the trial judge had properly directed the jury on the admissibility of the defendant's out-of-court statements, which the defence sought to introduce as exculpatory evidence. The court was required to consider whether the trial judge had correctly outlined the legal principles governing the admissibility of such statements and whether any error made was sufficiently significant to warrant a new trial. The court also examined the duty of counsel to lay a proper foundation for the admissibility of such evidence and whether the trial judge's foreshadowed ruling could be considered a provisional ruling.

The High Court held that the trial judge had indeed misdirected the jury concerning the admissibility of the defendant's out-of-court statements. The court found that the trial judge's direction did not adequately address the legal principles governing the admissibility of such evidence. However, the court concluded that the error did not materially affect the outcome of the trial. The court held that the error was not so significant as to warrant a new trial, as the evidence presented at trial was overwhelming and the error did not contribute to the conviction. Consequently, the appeal was dismissed, and the conviction was upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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