Tran v R

Case [2017] NSWCCA 93 17 May 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tran v R [2017] NSWCCA 93
Hearing dates: 1 March 2017
Decision date: 17 May 2017
Before: Macfarlan JA at [1];
Schmidt J at [34];
Wilson J at [60]
Decision:
(1) Grant leave to appeal to Ms Anh Thu Tran and to Mr Ba Bao Tran.
(2) Allow the appeals.
(3) Order pursuant to s 5F(5)(a) of the Criminal Appeal Act that the ruling of Pickering DCJ dated 19 October 2016 requiring Mr Tran to give evidence as a witness for the prosecution in the trial of Ms Tran be vacated.
(4) Remit Mr Tran’s objection under s 18(2) of the Evidence Act to the District Court for determination in accordance with law.

Catchwords:
CRIMINAL LAW – evidence – compellability of witnesses – objection by accused’s father to giving evidence for the prosecution against accused – s 18(2) Evidence Act 1995 (NSW) – whether trial judge satisfied himself that prospective witness was “aware of the effect” of s 18 as required by s 18(4)

PRACTICE AND PROCEDURE – interlocutory appeals – ‘judgment or order’ – application for leave to appeal under s 5F(3)(a) Criminal Appeal Act 1912 (NSW) – applicant’s father objected to giving evidence against the applicant – primary judge’s ruling that the applicant was a compellable witness was a ‘judgment or order’ for the purposes of s 5F(3)

PRACTICE AND PROCEDURE – interlocutory appeals – s 5F(3) Criminal Appeal Act 1912 (NSW) – a “party” may seek leave to appeal – objection by accused’s father to giving evidence for prosecution against accused rejected – s 18 Evidence Act 1995 (NSW) – prospective witness a “party” for the purposes of s 5F(3)
WORDS AND PHRASES – “party” – s 5F(3) Criminal Appeal Act 1912 (NSW) – a “party” may seek leave to appeal
Legislation Cited: Criminal Appeal Act 1912 (NSW) s 5F
Criminal Procedure Act 1986 (NSW) Ch 6, Pt 5, Div 2
Drug Misuse and Trafficking Act 1985 (NSW) Evidence Act 1995 (NSW) ss 17, 18, 128, 132
Interpretation Act 1987 (NSW) s 33
Legal Practitioners Act 1898 (NSW) s 77(1)
National Health Act 1953 (Cth)
Supreme Court Act 1970 (NSW) s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW) r 36.16(2)(b)
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156
Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Construction Forestry Mining and Engineering Union v Director of the Fair Work Building Industry Inspectorate (2016) 91 ALJR 1; [2016] HCA 41
Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 89 NSWLR 110; [2015] NSWCA 85
In the matter of Bauhaus Pyrmont Pty Ltd (in liq) (2006) 67 NSWLR 289; [2006] NSWSC 879
JP Morgan Chase Bank v Fletcher (2014) 85 NSWLR 644; [2014] NSWCA 31
Law Society of New South Wales v…

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 Tran v R

Details

AGLC: Tran v R [2017] NSWCCA 93
Case: [2017] NSWCCA 93
Decision Date: 17 May 2017

CaseChat Overview and Summary

In the case of Tran v R, the primary issue was whether the father of the accused, who had objected to giving evidence against his son, was a party with standing to appeal the trial judge’s ruling that his son was a compellable witness under section 18(2) of the Evidence Act 1995 (NSW). The Court of Criminal Appeal was tasked with determining the legality of the trial judge’s decision, particularly in light of section 18(4) of the Act, which requires the trial judge to be satisfied that the prospective witness is aware of the effect of section 18 before compelling them to testify.

The court needed to resolve whether the primary judge’s ruling that the accused was a compellable witness constituted a "judgment or order" under section 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), thereby allowing for an interlocutory appeal. Furthermore, the court had to examine whether the father, as the objecting party, qualified as a "party" for the purposes of section 5F(3) of the Criminal Appeal Act, thus enabling him to seek leave to appeal. The Court of Criminal Appeal held that the ruling was indeed a judgment or order and that the objecting father qualified as a party under the relevant statute, thereby having the right to seek leave to appeal.

The Court of Criminal Appeal determined that the primary judge’s ruling on the compellability of the accused was a "judgment or order" as required by section 5F(3)(a) of the Criminal Appeal Act. It was further held that the father, as the objecting party, was a "party" for the purposes of section 5F(3). The court found that the trial judge had not adequately satisfied himself that the prospective witness was aware of the effect of section 18, and as such, the ruling was flawed. The appeal was allowed, and the matter was remitted to the trial court for reconsideration.

The final orders of the court included the allowance of the interlocutory appeal, the declaration that the father was a party with standing to seek leave to appeal, and the remittal of the case to the trial court for further consideration in light of the court’s findings regarding the trial judge’s satisfaction with the prospective witness’s awareness of the effect of section 18.

Orders