AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 19 December 2003

REGINA v TANG

[2003] NSWCCA 357

Homicide
CONVICTION APPEAL MURDER NO EVIDENCE THAT WITNESS AVAILABLE DUTY OF CROWN NO ONUS ON DEFENCE TO CALL ANY WITNESS

Citation: Regina v Tang [2003] NSWCCA 357
Court: NSW Court of Criminal Appeal
Date: 19 December 2003
Judges: Spigelman CJ, Dunford J, Adams J

Background

The appellant was tried for murder following a stabbing incident. This was his second trial on the charge. The Crown case included evidence from a witness (referred to as AB) that the appellant had made admissions during a telephone call on the night of the stabbing, and evidence from another witness (CD) about events the following Monday, including an alleged threat made by the appellant.

During his own evidence, the appellant denied attending CD's residence on the Monday. He said he was working with his friend Manunu Treiblemayr and Manunu's father on that day, and that Manunu's mother had made breakfast for him. He also gave evidence that Manunu was present when he obtained a punching bag, which was relevant to contradicting CD's account.

Manunu, his parents, and a Mr He were not called to give evidence at trial by the defence. The trial judge gave the jury a direction drawn from the principle in Jones v Dunkel, which permits an inference to be drawn against a party who fails to call a witness it might have been expected to call. The appellant challenged that direction on appeal.

  • Whether the trial judge erred in giving a Jones v Dunkel direction against the accused in circumstances where there was no evidence that the uncalled witnesses were available to the defence
  • Whether the direction, read in context with other passages in the summing-up, had the effect of reversing the onus of proof on an element of the Crown case
  • Whether the proviso to s 6(1) of the Criminal Appeal Act 1912 could apply to preserve the conviction despite any misdirection

Decision

The Court allowed the appeal on the single ground pressed: that the Jones v Dunkel direction was given in error. The core problem was that there was no evidence before the jury that any of the uncalled witnesses, particularly Manunu Treiblemayr, were actually available to be called by the defence. Without that foundation, the direction ought not to have been given.

The Court applied the principles from the High Court's decision in Dyers v The Queen (2002) 210 CLR 285, which confirmed that a Jones v Dunkel direction is inappropriate where there is no proper evidentiary basis for concluding the witness was within the party's power to call. Adams J found that the direction was particularly problematic because it concerned Manunu, who was said by the Crown's own witness AB to have been present when the appellant allegedly made admissions. Manunu was therefore a witness the Crown itself might have been expected to call, and there was no basis for directing the jury to draw an adverse inference against the accused for not calling him.

The direction was found to sit at the heart of a critical issue: the burden of proof. By inviting the jury to draw an inference against the accused for failing to call witnesses who could have supported his account, the summing-up had, in effect, created a risk that the jury reversed the onus of proof on a significant element of the Crown case. The Court found that the proviso in s 6(1) of the Criminal Appeal Act 1912 had no application, because the nature and prominence of the misdirection meant a substantial miscarriage of justice could not be ruled out.

Orders Made

  • Appeal upheld
  • Conviction quashed
  • New trial ordered

Key Takeaways

  • A Jones v Dunkel direction should not be given against an accused unless there is evidence that the uncalled witness was actually available to be called by the defence; the mere fact that the accused mentioned a person in evidence is not sufficient.
  • Where the Crown's own case identifies a witness as potentially having relevant knowledge, there may be a duty on the Crown to call that witness rather than a basis for directing against the accused for not calling them.
  • Giving a Jones v Dunkel direction without an evidentiary foundation risks reversing the onus of proof, which goes to the very heart of a fair criminal trial.
  • The Court of Criminal Appeal confirmed that the principles in Dyers v The Queen govern the circumstances in which such directions are appropriate, and that those principles apply equally to accused persons as to other parties.
  • In applying the proviso to s 6(1) of the Criminal Appeal Act 1912, a misdirection that touches on the burden of proof on a contested element of the Crown case is unlikely to be treated as producing no substantial miscarriage of justice.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW) s 6(1)
- Evidence Act 1995 (NSW) s 38

Cases:
- Jones v Dunkel (1959) 101 CLR 298
- Dyers v The Queen (2002) 210 CLR 285
- RPS v The Queen (2000) 199 CLR 620
- The Queen v Apostilides (1984) 154 CLR 563
- Buckland [1977] 2 NSWLR 452
- Scott (2000) 112 A Crim R 543
- Taufua [1999] NSWCCA 205
- R v Tang [2001] NSWCCA 210