Tiriaki v The King

Case [2023] NSWCCA 73


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Tiriaki v R [2023] NSWCCA 73
Hearing dates: 21 November 2022
Date of orders: 29 March 2023
Decision date: 29 March 2023
Before: Price J at [1];
Ierace J at [261];
McNaughton J at [267]
Decision:

(1) Grant leave to the applicant to raise ground 1 of the appeal;
(2) Appeal allowed;

(3) Quash the conviction of murder entered on 9 May 2014;

(4) Order a new trial.

Catchwords:

CRIMINAL LAW – appeal against conviction of murder – jury finding that the applicant was the offender who shot the deceased – co-offender found guilty of manslaughter – co-offender confesses to being the offender who shot the deceased, not the applicant – whether miscarriage of justice – whether conviction should be quashed and new trial ordered – whether fresh evidence – whether apparently credible or capable of belief – whether significant possibility the jury acting reasonably would have acquitted the applicant if the co-offenders evidence was available at trial

Legislation Cited:

Crimes Act 1900 (NSW); ss 319, 327

Criminal Appeal Act 1912 (NSW); s 5(1)(b)

Crimes (Appeal and Review) Act 2001 (NSW); ss 100, 101

Cases Cited:

Craig v The King (1933) 49 CLR 429; [1933] HCA 41

Davies and Cody v The King (1937) 57 CLR 170; [1937] HCA 27

Gallagher v The Queen (1986) 160 CLR 392; 20 A Crim R 244; [1986] HCA 26

Lawless v The Queen (1979) 142 CLR 659; [1979] HCA 49

Mickelberg v The Queen (1989) 167 CLR 259; 43 A Crim R 182; [1989] HCA 35

MRW v R [2011] NSWCCA 260

R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356

R v Bikic [2002] NSWCCA 227

R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764

Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35

Rogerson v R, McNamara v R (2021) 290 A Crim R 239; [2021] NSWCCA 160

Tabbah v R [2019] NSWCCA 324

Category:Principal judgment
Parties: Wassim Tiriaki (Applicant)
Rex (Respondent)
Representation:

Counsel:
M Thangaraj SC, S Pararajasingham (Applicant)
E Balodis (Respondent)

Solicitors:
SANS Law (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2012/00073453
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
Supreme Court of NSW
Jurisdiction:
Criminal
Citation:

[2014] NSWSC 1764

Date of Decision:
10 December 2014
Before:
Schmidt J
File Number(s):
2012/00073453

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2014, Wassim Tiriaki (the applicant) was found guilty by a jury of the murder of Matthew Hedges. Mr Hedges was hit in the chest by a single gunshot fired from a revolver through a loungeroom window at his home at Chester Hill. Mr Hedges had been near the window when the shot was fired at close range, inflicting a fatal wound. The co-accused, Salim Tabbah, was found guilty of manslaughter.

During the proceedings on sentence, there was no…

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Tiriaki v The King [2023] NSWCCA 73
Case
[2023] NSWCCA 73
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CaseChat Overview and Summary

In the matter of Tiriaki v The King, the High Court of Australia was asked to review an appeal against a conviction of murder. The applicant, Tiriaki, was found by a jury to be the person who shot the deceased. Another person, who was a co-accused, was found guilty of manslaughter. After the trial, the co-accused confessed to being the offender who shot the deceased, not Tiriaki. Tiriaki appealed against his conviction, arguing that a miscarriage of justice had occurred because the jury had not heard the confession, and that his conviction should be quashed and a new trial ordered. The appeal hinged on whether the co-accused’s confession constituted fresh evidence, whether it was apparently credible or capable of belief, and whether there was a significant possibility that the jury acting reasonably would have acquitted Tiriaki if the co-accused’s evidence had been available at trial.

The Court considered the nature of the evidence and its potential impact on the jury’s decision-making. It noted that the co-accused’s confession, given after the trial, was indeed fresh evidence. The Court then examined whether the confession was credible and capable of belief. It determined that the confession was apparently credible and capable of belief as it was consistent with other evidence and circumstances surrounding the case. The Court also assessed whether there was a significant possibility that the jury, acting reasonably, would have acquitted Tiriaki had the co-accused’s evidence been available at trial. The Court concluded that such a possibility existed, given the weight of the co-accused’s confession and the lack of other evidence directly linking Tiriaki to the shooting.

The Court found that a miscarriage of justice had occurred, primarily due to the unavailability of the co-accused’s confession at the time of the trial. Consequently, the Court quashed Tiriaki’s conviction and ordered a new trial. The Court emphasised the importance of ensuring that all available evidence is considered by the jury to maintain the integrity of the criminal justice system. The decision underscores the need for trials to be fair and for all relevant evidence to be presented to the jury to reach a just outcome.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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