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Court of Criminal Appeal 19 December 2008

Tan v R

[2008] NSWCCA 332

Also reported as 192 A Crim R 310
Firearms & weapons
CRIMINAL LAW APPEAL AGAINST CONVICTION DISCHARGING FIREARM IN PUBLIC PLACE WHETHER MISCARRIAGE OF JUSTICE CRIMINAL LAW EVIDENCE

Citation: Tan v R [2008] NSWCCA 332
Court: NSW Court of Criminal Appeal
Date: 19 December 2008
Judge(s): Tobias JA, Barr J, Kirby J

Background

The appellant was convicted by a jury in the Sydney District Court of two counts of discharging a firearm in a public place under the Crimes Act 1900 (NSW). The Crown alleged he organised a drive-by shooting at a residential address in Merrylands in September 2003, motivated by a dispute over a BMW motor vehicle. He was not alleged to have been the actual shooter; rather, the Crown's case was that he planned the attack, arranged participants, and directed timing.

The appellant was sentenced to a non-parole period of three years and three months, a sentence that had fully expired by the time the appeal was heard. He therefore appealed against conviction only.

The prosecution case rested heavily on the evidence of Christopher Lenati, a participant in the shooting who had been interviewed by police in New Zealand and had given a detailed electronically recorded interview (known as an ERISP) implicating the appellant. At trial, Lenati proved an unreliable witness, claiming he could not recall the relevant events, though he indicated he was prepared to stand by the contents of his recorded interviews.

  • Whether a witness who claims inability to recall events is "unavailable" for the purposes of s 65 of the Evidence Act 1995, permitting admission of prior representations
  • Whether prior inconsistent statements were wrongly admitted under the credibility rule
  • Whether the Crown was properly permitted to cross-examine its own witness
  • Whether evidence containing admissions by the appellant constituted impermissible hearsay
  • Whether certain exhibits should have been permitted to go into the jury room, and whether any "swamping effect" resulted
  • Whether the verdict was unreasonable or unsupported by the evidence

Decision

On the availability question under s 65 of the Evidence Act, the Court found that a witness who claims an inability to recall events is not "unavailable" in the relevant legal sense. Unavailability under that provision requires something more than a claimed failure of memory. However, the Court concluded that even though the trial proceeded on an incorrect basis in this respect, no substantial miscarriage of justice resulted because the evidence would likely have been admissible on other grounds.

On the admissions and hearsay grounds, the Court examined whether statements in the recorded interviews attributed to the appellant constituted impermissible hearsay. The Court found that these statements were properly before the jury and did not amount to inadmissible hearsay in the circumstances.

Regarding the exhibits sent to the jury room, including the videotapes and transcripts of the police interviews, the Court rejected the argument that any "swamping effect" arose from the jury having access to that material. The jury had heard the evidence at trial and the exhibits were relevant and properly admitted.

On the unreasonable verdict ground, the Court held that, approaching Lenati's evidence with appropriate caution as directed by the trial judge, it was open to the jury to accept his recorded statements beyond reasonable doubt. The jury was entitled to prefer what Lenati had told police in the recorded interviews over his favourable (to the appellant) oral evidence at trial, and the verdict was neither unreasonable nor unsupported by the evidence.

Orders Made

  • Appeal against conviction dismissed

Key Takeaways

  • A witness who claims an inability to recall events does not thereby become "unavailable" under s 65 of the Evidence Act 1995; that provision requires a more substantive form of unavailability than a memory failure alone.
  • No miscarriage of justice necessarily flows from an error in the basis for admitting evidence, provided the evidence would have been admissible on other grounds and the error caused no substantial injustice.
  • Where a Crown witness gives oral evidence at trial that is inconsistent with or hedged compared to prior recorded police interviews, the jury may properly prefer the contents of those recorded interviews when assessing guilt.
  • Permitting exhibits, including videotaped police interviews and transcripts, to go into the jury room does not automatically produce a "swamping effect" vitiating the verdict; the argument requires more than assertion.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an appellate court will not disturb a jury verdict merely because a witness proved reluctant at trial, provided the recorded evidence implicating the accused was properly before the jury and was capable of supporting the conviction beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- Evidence (Children) Act 1997 (NSW)

Cases:
- Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96
- Brown & Ors v R [2006] NSWCCA 69
- Cox v State of New South Wales [2007] NSWSC 471
- R v GAC (NSWCCA, 1 April 1997, unreported)
- R v Germakian [2007] NSWCCA 373; (2007) 70 NSWLR 467
- Jones v The Queen (1997) 191 CLR 439
- Lee v The Queen (1998) 195 CLR 594
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606
- R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628
- Ratten v The Queen (1974) 131 CLR 510
- R v RTGS [2005] NSWCCA 293
- R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182