Tun v Bryant

Case [2020] NTSC 56

CITATION:Tun v Bryant [2020] NTSC 56

PARTIES:TUN, Han Thu

v

BRYANT, Anne

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:LCA 12 of 2018 (21622019)

DELIVERED:  27 August 2020

HEARING DATES:  30 August 2018; 1, 2 October 2018; 19 November 2018; 21 January 2019; 1 February 2019

FURTHER WRITTEN

SUBMISSIONS:  21 January 2019; 25 January 2019

JUDGMENT OF:  Blokland J

CATCHWORDS:

CRIME – APPEALS – APPEAL against conviction – whether convictions

unreasonable, unsafe and unsatisfactory – whether Local Court Judge made

erroneous credit findings – whether authorisation and claim of right

excluded – whether error in Liberato direction – whether properly regarded

as oath on oath case – held, convictions not unreasonable, unsafe or

unsatisfactory – on an independent review of evidence, authorisation and

claim of right were properly excluded – unreasonable, unsafe and

unsatisfactory ground and related grounds dismissed.

CRIME – APPEALS – APPEAL against conviction – whether improper

conduct by prosecutor – whether prosecutor should have called witness –

witness called in defence case – preferable for prosecutor to have called

witness – evidence given by witness went to periphery matters – evidence

marginally helpful to prosecution and defence – no miscarriage of justice

occasioned by failure on the part of the prosecutor to call witness.

CRIME – APPEALS – application for leave to amend Notice of

Appeal by addition of new ground – proposed ground pleaded tendency or

coincidence evidence led without notice by prosecution – evidence was

central part of defence case – evidence of a system – not tendency or

coincidence evidence – proposed ground has no prospect of success – leave

to amend refused.

Criminal Code 1983 (NT) s 30(2).

Local Court (Criminal Procedure) Act 1928 (NT) s 163(1)(b)

GAX v The Queen [2017] HCA 25; 344 ALR 489, Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; 106 FCR 51, Lynch v The Queen [2020] NTCCA 6, M v The Queen [1994] HCA 63; 181 CLR 487, MFA v R [2002] HCA 5; 213 CLR 606, Nguyen v The Queen [2020] HCA 23, Pell v The Queen [2020] HCA 12, SKA v The Queen [2011] HCA 13; 243 CLR 400, referred to.

REPRESENTATION:

Counsel:

Appellant:L Nguyen

Respondent:  M Chalmers

Solicitors:

Appellant:Robert Welfare and Associates

Respondent:  Office of the Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  BLO 2005

Number of pages:  58

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Tun v Bryant [2020] NTSC 56

No. 21622019

BETWEEN:

HAN THU TUN

Appellant

AND:

ANNE BRYANT

Respondent

CORAM:    BLOKLAND J

Judgment

(Delivered 27 August 2020)

Introduction

  1. Following a contested hearing, the appellant was convicted in the Local Court of eight counts of stealing. She appeals against the convictions. The right of appeal to this Court is conferred by s 163(1)(b) of the Local Court (Criminal Procedure) Act 1928 (NT), which permits an…

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AGLC
Tun v Bryant [2020] NTSC 56
Case
[2020] NTSC 56
Decision Date

CaseChat Overview and Summary

In the case of Tun v Bryant, the appellant, Tun, sought to appeal against his convictions for a number of criminal offences. The appeal was heard and dismissed by the NSW Court of Criminal Appeal. The appellant was convicted of a number of criminal offences including conspiracy to commit a serious indictable offence, deprivation of liberty, deprivation of freedom, kidnapping, false imprisonment, and assault occasioning actual bodily harm. The appeal was based on a number of grounds, including that the verdict was unreasonable, unsafe and unsatisfactory, and could not be supported by the evidence to the requisite standard of proof, that the Local Court Judge made erroneous credit findings, and that authorisation and claim of right were improperly excluded. The Court of Criminal Appeal found that the convictions were not unreasonable, unsafe or unsatisfactory, and that the exclusion of authorisation and claim of right was proper.

The primary legal issue before the Court of Criminal Appeal was whether the verdict was unreasonable, unsafe and unsatisfactory, and could not be supported by the evidence to the requisite standard of proof. The Court found that the evidence was sufficient to support the verdict, and that the verdict was not unreasonable, unsafe or unsatisfactory. The Court also considered whether the Local Court Judge made erroneous credit findings against the Appellant, and whether authorisation and claim of right were properly excluded. The Court found that the Local Court Judge's credit findings were not erroneous, and that the exclusion of authorisation and claim of right was proper.

The Court of Criminal Appeal considered the evidence in the case and determined that the verdict was not unreasonable, unsafe or unsatisfactory. The Court noted that it was not its role to consider whether there was evidence to support the verdict, but rather to determine whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The Court found that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty, and that the verdict was not unreasonable, unsafe or unsatisfactory. The Court also considered whether the Local Court Judge made erroneous credit findings against the Appellant, and whether authorisation and claim of right were properly excluded. The Court found that the Local Court Judge's credit findings were not erroneous, and that the exclusion of authorisation and claim of right was proper.

The Court of Criminal Appeal dismissed the appeal and affirmed the convictions. The Court found that the evidence was sufficient to support the verdict, and that the verdict was not unreasonable, unsafe or unsatisfactory. The Court also found that the Local Court Judge's credit findings were not erroneous, and that the exclusion of authorisation and claim of right was proper. The Court affirmed the convictions of the appellant for the criminal offences of conspiracy to commit a serious indictable offence, deprivation of liberty, deprivation of freedom, kidnapping, false imprisonment, and assault occasioning actual bodily harm.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is convenient to deal with the facts and submissions relevant to the first three grounds of appeal together. Those grounds are: Ground 1: The verdict was unreasonable, unsafe and unsatisfactory, and could not be supported by the evidence, to the requisite standard of proof. Ground 2: Her Honour erred in making adverse credibility findings against the Appellant on the basis that “there is very little which corroborates Ms Tun’s account in any way”. Ground 3: Her Honour’s positive credibility finding of the key prosecution witness, Mr Tsounias, was not supported by the evidence. Counsel for the appellant acknowledged a substantial degree of overlap between the first three grounds of appeal and the related underlying facts. The resolution of ground one requires consideration of the same factual issues which are relevant to grounds two and three. Particulars of ground one were provided in the Amended Notice of Appeal as follows: (A) The learned Judge did not correctly apply the Liberato direction which she gave herself (21.2.18, 117), insofar as:(i)the evidence in the case, when assessed objectively, gives rise to a reasonable doubt as to the questions of authorisation and claim of right. (ii)the Judge erred in “accepting that the evidence of the prosecution’s principal witness was true beyond reasonable doubt” (notwithstanding a sworn denial by the accused) (iii)the Judge did not apply the following aspect of the Liberato direction: [I do] not have to believe that the Appellant is telling the truth before the Appellant is entitled to be acquitted. Particulars (ii) and (iii) appear to be more in the nature of alleged errors of law rather than particulars which would ordinarily be comprehended in the unreasonable, unsafe and unsatisfactory ground, given those particulars assert errors in the directions given by the learned trial Judge. However, it is appreciated there may be an indirect connection between all particulars when evaluating the evidence and whether it was dealt with according to the principles of proof in criminal matters. The principles governing ground one are those stated in M v The Queen[5] and affirmed in subsequent decisions of the High Court.[6] Notwithstanding the trier of fact was a Judge, rather than a jury, the applicable principles are the same, save that on appeal, this Court has the benefit of reasons of the learned Local Court Judge.[7] In M v The Queen[8] the High Court stated: Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as “unjust or unsafe” or “dangerous or unsafe”. In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”. …Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe and unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regards to those considerations.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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