Tran v The Queen - [2018] NSWCCA 145

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Tran v R [2018] NSWCCA 145
Hearing dates: 6 July 2018
Date of orders: 23 July 2018
Decision date: 23 July 2018
Before: Payne JA at [1]; Schmidt J at [52]; Button J at [53]
Decision:
(1) Leave to appeal against the interlocutory order made by Craigie SC DCJ be granted pursuant to s 5F(3)(a) of the Criminal Appeal Act;

(2) Appeal allowed;

(3) Vacate the order made by Craigie SC DCJ on 14 March 2018 refusing to uphold Mr Ba Bao Tran’s objection to giving evidence under to s 18 of the Evidence Act pursuant to s 5F(5)(a) of the Criminal Appeal Act;

(4) Mr Ba Bao Tran’s objection pursuant to s 18 of the Evidence Act is remitted to the District Court to be determined afresh in accordance with these reasons;
(5) Publication of this judgment be restricted to the parties until there is a verdict of the jury in the applicant’s trial or for a period of 12 months from today’s date whichever first occurs. If any further period of restriction is sought by either party, leave is granted to make written application to the chambers of the presiding judge. The order is made as it is necessary to prevent prejudice to the proper administration of justice within the meaning of s 8(a) of the Court Suppression and Non-publication Orders Act 2010.
Catchwords:
INTERLOCUTORY APPEAL – s 5F Criminal Appeal Act – accused found not to have standing to make submissions about objection to giving evidence at trial under s18 Evidence Act made by accused’s father – whether denial of procedural fairness
EVIDENCE — witness evidence — compellability —parents – whether witness should be excused from giving evidence – s 18 Evidence Act – whether the trial judge denied the accused procedural fairness by finding she had no standing – whether the trial judge had failed to take into account a material consideration – whether the trial judge’s finding about co-accused was plainly unreasonable
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) s 8
Criminal Appeal Act 1912 (NSW) s 5F
Criminal Procedure Act 1986 (NSW) s 130, 279
Drug Misuse and Trafficking Act 1985 (NSW) ss 24A, 33AB
Evidence Act 1995 (NSW) ss 18, 19, 65, 138
Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10
DWN042 v Republic of Nauru [2017] HCA 56
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
R v A2; R v KM; R v Vaziri (No. 4) [2015] NSWSC 1306
R v Fletcher [2015] NSWSC 1630
R v Quinn [2016] NSWSC 1101
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Tran v R [2017] NSWCCA 93
Category: Procedural and other rulings
Parties:

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 The Queen

Details

AGLC: Tran v The Queen [2018] NSWCCA 145
Case: [2018] NSWCCA 145
Decision Date: 23 July 2018

CaseChat Overview and Summary

In Tran v The Queen, the appellant was convicted of multiple charges, including murder, and was sentenced to life imprisonment. The appeal was centred on the trial judge's refusal to excuse the appellant's father from giving evidence. The father had objected to testifying under section 18 of the Evidence Act, citing a potential conflict of interest due to his relationship with the appellant. The appellant argued that the trial judge's decision to deny the application to excuse the father from testifying amounted to a denial of procedural fairness. The crux of the appeal was whether the trial judge's refusal to excuse the father from giving evidence was an error of law that warranted interference under section 5F of the Criminal Appeal Act.

The court was required to determine whether the trial judge had correctly interpreted and applied the law in deciding the appellant's father's objection to giving evidence and in ruling on the appellant's standing to make submissions on the matter. Additionally, the court had to assess whether the trial judge had failed to consider a material factor or whether the trial judge's finding regarding the co-accused was plainly unreasonable. The appellant contended that the trial judge had overlooked the significance of the familial relationship between the appellant and her father, which was a material consideration that should have influenced the decision.

The court found that the trial judge had appropriately exercised their discretion in deciding that the appellant did not have standing to make submissions regarding the objection to the father's testimony. The court held that the appellant's father's objection was based on a perceived conflict of interest, and the trial judge had considered the potential prejudice to the fairness of the trial in ruling on the objection. The court further determined that the trial judge's decision did not involve any error of law or failure to consider a material factor. Consequently, the appeal was dismissed, and the conviction and sentence were upheld.

No further orders were made by the court.

Orders