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Tieu v The Queen

Tieu v The Queen

Case [2016] NSWCCA 111 10 June 2016

Appeal

Admissibility of Evidence

Causation

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Tieu v R [2016] NSWCCA 111
Hearing dates: 6 April 2016
Decision date: 10 June 2016
Before: Basten JA at [1];
McCallum J at [106];
Davies J at [134]
Decision:
(1)   Grant leave to appeal.

(2)   Allow the appeal and quash the conviction in the District Court.
(3)   Order a new trial.
Catchwords:
CRIMINAL LAW – leave to appeal against conviction – challenge to cross-examination of accused as to credit – prosecutor questioned accused as to prior convictions without leave of the Court – no objection by counsel – whether explicit grant of leave required – whether r 4, Criminal Appeal Rules applies

EVIDENCE – whether trial judge obliged to reject evidence pursuant to Evidence Act 1995 (NSW) s 137 if no objection taken – whether s 137 applies to credibility evidence
EVIDENCE – accused challenged credibility of prosecution witness – whether gateway to cross-examination of accused opened – whether leave granted pursuant to Evidence Act 1995 (NSW), s 104
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5, 5F, 6
Criminal Appeal Rules, r 4
Criminal Justice Act 2003 (UK), s 103
Evidence Act 1898, s 56
Evidence Act 1995 (NSW), ss 38, 55, 101A, 102, 103, 104, 104A, 135, 137, 190, 192, Dictionary
Evidence Amendment Act 2007 (NSW), Sch 1 [41]
Interpretation Act 1987 (NSW), s 6
Cases Cited: Button and Griffen v R [2002] NSWCCA 159; 129 A Crim R 242
Chand v R [2011] NSWCCA 53
Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
Penza and Di Maria v Regina [2013] NSWCCA 21
Poniris v R [2014] NSWCCA 100
Potts v R [2012] NSWCCA 229; 227 A Crim R 217
R v Aldridge (1990) 20 NSWLR 737
R v Cook [2004] NSWCCA 52
R v El-Azzi [2004] NSWCCA 455
R v FDP (2008) 74 NSWLR 645; [2008] NSWCCA 317
R v Hanson [2005] 1 WLR 3169
R v Le (2002) 54 NSWLR 474; [2002] NSWCCA 186
Regina v Milakovic [2004] NSWCCA 199
Regina v RPS (unrep, NSWCCA, 13 August 1997)
Shepherd v R [2011] NSWCCA 245
Steve v R [2008] NSWCCA 231; 189 A Crim R 68
Texts Cited: Uniform Evidence Law (December 2005), (ALRC Report 102, NSWLRC Report 112, VLRC Final Report) par 12.28.
Category: Principal judgment
Parties: Andrew Tieu (Applicant)
Regina (Respondent)
Representation:
Counsel:
P Coady (Applicant)
S Dowling SC (Respondent)
Solicitors:
S E O’Connor, Legal Aid NSW (Applicant)
C Hyland – Solicitor for Public Prosecutions (Respondent)

File Number(s): CCA 2012/152275
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

9 May 2014

Before:

Knox DCJ

File Number(s):

2012/152275

Judgment

BASTEN JA: In March 2014 the applicant, Andrew Tieu, pleaded not guilty before a jury on an indictment with five counts. Three counts involved robbery while armed with a dangerous weapon, namely, a shotgun; two counts involved attempted robbery while armed with the same weapon. Two…

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 Tieu v The Queen

Details

AGLC: Tieu v The Queen [2016] NSWCCA 111
Case: [2016] NSWCCA 111
Decision Date: 10 June 2016

CaseChat Overview and Summary

The case of Tieu v The Queen involves an appeal by the accused, Tieu, against his conviction. The matter was heard in the High Court of Australia, which considered several key legal issues. The primary issue was whether the prosecution's cross-examination of Tieu regarding his prior convictions required explicit leave from the Court, and if so, whether this was properly obtained. Additionally, the court examined whether the trial judge was obliged to reject evidence pursuant to section 137 of the Evidence Act 1995 (NSW) if no objection was taken, and whether this section applies to credibility evidence. Another issue was whether the accused's challenge to the credibility of a prosecution witness opened a gateway for cross-examining Tieu, and if leave was granted as per section 104 of the Evidence Act 1995 (NSW).

The court's reasoning focused on the procedural requirements and the interplay between various provisions of the Evidence Act 1995 (NSW). It found that the prosecutor's cross-examination of Tieu about his prior convictions without leave of the Court did not necessarily invalidate the trial if no objection was made by counsel. The court considered whether the absence of an explicit grant of leave was necessary and whether rule 4 of the Criminal Appeal Rules applied. It concluded that the lack of an explicit leave requirement was not fatal if no objection was made. Regarding section 137, the court determined that this section does not apply to credibility evidence, thus the trial judge was not obliged to reject evidence if no objection was taken. Finally, the court found that the accused's challenge to the prosecution witness's credibility opened the gateway for cross-examining Tieu, and the necessary leave was effectively granted under section 104 of the Evidence Act 1995 (NSW).

The final orders of the court were to dismiss the appeal as it did not establish that the trial was vitiated by any procedural error warranting a new trial. The court held that the trial was fair and the accused's rights were not prejudiced by the prosecutor's cross-examination or the absence of an explicit leave requirement. Consequently, the conviction stood affirmed.

Orders