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Tiriaki v The King

Tiriaki v The King

Case [2023] NSWCCA 73 29 March 2023

Appeal

Miscarriage of Justice

Fresh Evidence

Causation

Criminal Law

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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…

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 Tiriaki v The King

Details

AGLC: Tiriaki v The King [2023] NSWCCA 73
Case: [2023] NSWCCA 73
Decision Date: 29 March 2023

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