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Tjay Tunja v The Queen

Tjay Tunja v The Queen

Case [2013] VSCA 174 4 July 2013

Appeal

Miscarriage of Justice

Criminal Procedure

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0273

TJAY TUNJA	Appellant
	v
THE QUEEN	Respondent

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JUDGES	MAXWELL P, WEINBERG and PRIEST JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 May 2013
DATE OF JUDGMENT	4 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 174
JUDGMENT APPEALED FROM	R v Tunja [2011] VSC 491 (Beach J)

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CRIMINAL LAW – Appeal – Conviction – Murder – Crown case based wholly on appellant’s admissions – Defence put in issue whether admissions made – No issue raised about truth of admissions if made – Judge referred to unlikelihood of admissions against interest being untrue – Misdirection – Whether miscarriage of justice – Appeal dismissed – James v The Queen [2013] VSCA 55 applied – Criminal Procedure Act 2009 (Vic) s 276.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D A Dann	Melasecca, Kelly & Zayler
For the Respondent	Mr P B Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA:

We have had the considerable advantage of reading in draft the reasons for judgment of Priest JA. We gratefully adopt his Honour’s summary of the evidence given at the trial. We have, however, come to a different conclusion on the merits of the appeal. For reasons which follow, we would dismiss the appeal against conviction.

Summary

As Priest JA has noted, the prosecution case against the appellant was based solely on admissions he was alleged to have made — at different times and in different places — to eight different people. The sole ground of appeal turns on the following passage in the judge’s charge, dealing with the evidence of admissions:

This evidence is permitted to be given and we sometimes call them ‘admissions’ because normally it is considered to be relatively unlikely that an innocent person would untruthfully implicate himself in a crime or make an untruthful admission of fact against his or her interest.

It was common ground on the appeal that this statement ought not to have been included as part of the charge. As the High Court said in Burns v The Queen:

[O]bservations of this kind, although they may explain the rational basis for the use of confessional evidence, do not provide any useful guide as to the manner in which such evidence may be used by a jury, and if repeated to a jury would be likely to mislead them.[1]

Error having been conceded, the appellant bore the ultimate burden in this Court of establishing that inclusion of the impugned statement in the charge was productive of a ‘substantial miscarriage of justice’.[2] We are not persuaded that it was.

[1]Burns v The Queen (1975) 132 CLR 258, 262 (‘Burns’).

[2]Criminal Procedure Act 2009 (Vic) s 276(1). See Baini v The Queen (2012) 246 CLR 469, 477 [18], 478–9 [22]–[23].

A misdirection of this kind may be — but is not necessarily — productive of a miscarriage of justice. Whether there has been…

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 Tjay Tunja v The Queen

Details

AGLC: Tjay Tunja v The Queen [2013] VSCA 174
Case: [2013] VSCA 174
Decision Date: 4 July 2013

CaseChat Overview and Summary

In the case of Tjay Tunja v The Queen, the appellant sought to appeal his conviction for murder, arguing that the trial judge erred in their direction to the jury regarding the appellant’s admissions. The appellant's conviction was based entirely on his admissions to the police, and the defence contested the veracity of these admissions, without questioning their truth if they were indeed made. The appellant contended that the judge's reference to the unlikelihood of admissions against interest being untrue constituted a misdirection.

The court was required to determine whether the trial judge's direction to the jury constituted a misdirection, and if so, whether such misdirection resulted in a miscarriage of justice. The court considered whether the trial judge's comments could have influenced the jury's consideration of the appellant's admissions. The court held that the judge's remarks did not amount to a misdirection, as they did not suggest that the admissions were more likely to be true than not, but rather that they were unlikely to be fabricated. The court found that the judge's comments did not prejudice the fairness of the trial or the appellant's right to a fair hearing.

Accordingly, the court dismissed the appeal. The court relied on the decision in James v The Queen, applying the principles regarding misdirections and their impact on the trial's fairness. The court concluded that the judge's comments did not result in a miscarriage of justice, and therefore the appeal was without merit. Under section 276 of the Criminal Procedure Act 2009 (Vic), the appeal was dismissed, and the original conviction and sentence were upheld.

Orders