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Court of Criminal Appeal 5 August 2004

R v CHANTHOVIXAY

[2004] NSWCCA 285

Assault & violenceTheft & propertyFirearms & weapons

Citation: R v Chanthovixay [2004] NSWCCA 285
Court: New South Wales Court of Criminal Appeal
Date: 5 August 2004
Judge(s): Beazley JA, Wood CJ at CL, Hulme J (Hulme J delivering reasons; Beazley JA and Wood CJ at CL agreeing)

Background

The respondent faced three charges arising from a violent carjacking on 20 September 2002. The alleged offences involved detaining a victim, assaulting him, and robbing him at gunpoint. According to the Crown case, three men of Asian appearance approached the victim in a car park, pointed a firearm at him, beat him, taped his wrists and ankles, locked him in the boot of the vehicle, and drove off with him inside.

After being released from the boot, the victim was found with pieces of clear adhesive tape on his wrists and ankles. When police later recovered the vehicle, they found a scrunched piece of clear adhesive tape in the boot. DNA evidence linked that tape to the respondent.

Separately, evidence existed that the respondent was seen in possession of a firearm on 7 October 2002 at a house in Canley Vale, approximately two weeks after the alleged offences. The trial judge, Bell DCJ in the District Court, ruled both the tape evidence and the firearm evidence inadmissible. The Crown appealed those rulings under section 5F of the Criminal Appeal Act.

  • Whether evidence of adhesive tape found in the boot of the recovered vehicle, including associated DNA evidence linking that tape to the respondent, was admissible at trial.
  • Whether evidence of the respondent's possession of a firearm some two weeks after the alleged offences, at a separate location, was admissible at trial.
  • What standard applies when determining whether evidence of this kind meets the threshold for admissibility (specifically, whether the Crown must establish the connection beyond reasonable doubt before the evidence can be placed before a jury).

Decision

On the tape evidence, Hulme J found that the trial judge had erred in excluding it. The absence of direct scientific or lay evidence proving the boot tape and the tape removed from the victim were the same tape did not, by itself, render the boot tape inadmissible. The relevance of the evidence and its connection to the respondent, through the DNA comparison, was sufficient to warrant admission. The admissibility threshold does not require the Crown to establish its propositions beyond reasonable doubt before evidence can go to the jury.

On the firearm evidence, Hulme J considered whether evidence of the respondent's possession of a rifle on 7 October 2002 bore a sufficient connection to the alleged offences. His Honour concluded that the evidence of the respondent holding the weapon up to the point police sirens were heard was admissible, given what the statements of the Crown witnesses (referred to as Messrs Ma) indicated about that possession. However, Hulme J noted that whether evidence of the precise moment the respondent ceased holding the weapon should be admitted was a separate question for the trial judge. Any exclusion in that regard should not prejudice the Crown by leaving open the inference that the respondent had simply returned the weapon to someone else.

Hulme J also clarified that the ruling on the Crown's application to adduce the firearms evidence did not foreclose topics that defence counsel might raise in cross-examination of those witnesses, at least to the extent those topics arose from the same events on 7 October.

Orders Made

  • The appeal was allowed.
  • The decision of Bell DCJ of 21 May 2004 excluding the adhesive tape evidence was set aside.
  • Evidence of the finding of adhesive tape in the boot of vehicle DK-128 on 21 September 2002, including the tape itself, the presence of DNA on it, and comparison of that DNA with the respondent's DNA, was adjudged admissible.
  • The decision of Bell DCJ of 24 May 2004 excluding evidence of events on 7 October 2002 at a house in Canley Vale was set aside.
  • Evidence of the respondent's possession of a firearm on 7 October 2002 at a house in Canley Vale was adjudged admissible.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the test for admissibility does not require the Crown to prove a connection between pieces of evidence beyond reasonable doubt before that evidence can be placed before a jury.
  • Circumstantial physical evidence, such as tape found in a vehicle, may be admissible even without direct scientific proof that it is the same item used in an alleged offence, provided there is a sufficient basis in the evidence as a whole to establish relevance.
  • DNA evidence linking a respondent to a physical exhibit found at a crime scene can supply the necessary relevance to make that exhibit admissible, notwithstanding other evidentiary gaps.
  • Evidence of a respondent's possession of a weapon at a time after the alleged offences may be admissible where the circumstances disclosed by witness statements are sufficiently connected to the offences charged, though the precise scope of what is admissible remains a matter for the trial judge.
  • A Crown appeal under section 5F of the Criminal Appeal Act is available to challenge pre-trial rulings excluding evidence, and the Court of Criminal Appeal may substitute its own ruling on admissibility where the trial judge's decision is found to be in error.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), section 5F (Crown right of appeal against pre-trial evidentiary rulings)

Cases:
No cases were cited in the text or metadata provided.