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Court of Criminal Appeal 10 June 2016

Tieu v R

[2016] NSWCCA 111

Fraud & dishonesty
CRIMINAL LAW LEAVE TO APPEAL AGAINST CONVICTION CHALLENGE TO CROSS EXAMINATION OF ACCUSED AS TO CREDIT NO OBJECTION BY COUNSEL WHETHER GATEWAY TO CROSS

Citation: Tieu v R [2016] NSWCCA 111
Court: Court of Criminal Appeal
Date: 10 June 2016
Judges: Basten JA at [1]; McCallum J at [106]; Davies J at [134]

Background

The applicant was convicted by jury on five counts of armed robbery and attempted armed robbery arising from events on 10 and 11 May 2012. The prosecution case was that the applicant acted as the getaway driver while Christopher Hibbard physically entered or attempted to enter the relevant premises carrying a shotgun. Hibbard gave evidence for the prosecution implicating the applicant in each offence, and the applicant was sentenced to ten years imprisonment with a non-parole period of six years and six months.

At trial, counsel for the applicant cross-examined Hibbard extensively about his criminal history and conduct, seeking to undermine his credibility as a witness. The prosecutor then applied to cross-examine the applicant on his own criminal record. The prosecutor proceeded to do so before the trial judge had made a formal ruling and without having obtained leave under section 104(2) of the Evidence Act 1995 (NSW). After the cross-examination had already occurred, the judge gave a direction to the jury about how the evidence of prior convictions could and could not be used.

The applicant sought leave to appeal against his convictions. The sole ground pursued at the hearing was that the trial miscarried because the prosecutor cross-examined him on his criminal record without having first obtained leave from the trial judge.

Legal Issues

  • Whether rule 4 of the Criminal Appeal Rules was engaged, requiring the applicant to obtain leave to raise the ground of appeal given that no objection was taken at trial.
  • Whether the cross-examination of the applicant on his criminal record required leave under section 104(2) of the Evidence Act 1995 (NSW).
  • Whether the cross-examination of Hibbard by defence counsel opened the "gateway" in section 104(4), permitting the prosecutor to apply for leave to cross-examine the applicant on matters relevant to his credibility.
  • Whether the trial judge properly applied the requirements of sections 103, 104 and 192 of the Evidence Act, including the balancing exercise under section 137.
  • Whether any failure to apply those provisions resulted in a miscarriage of justice.

Decision

Majority outcome (McCallum J and Davies J):

The majority held that the trial miscarried. The prosecutor cross-examined the applicant on his criminal record without leave, in contravention of section 104(2) of the Evidence Act, and contrary to the express indication the prosecutor had given to the trial judge that he would await a ruling before doing so (at [117]-[128]). When the issue came to be addressed, the trial judge did not make a determination in accordance with the Act's requirements (at [128]).

Rule 4 of the Criminal Appeal Rules:

The judges reached different conclusions on whether rule 4 applied. McCallum J held that rule 4 does not apply to a ground of appeal directed at the prosecutor's conduct in cross-examining an accused in breach of the Evidence Act, as distinct from any direction or evidentiary decision by the trial judge. In her Honour's view, the responsibility for obtaining leave rested on the Crown, and visiting the burden of guarding trial fairness on defence counsel was inappropriate (at [108]-[120]). Davies J took the contrary view, holding that rule 4 applied by reason of the failure of counsel for the applicant to object (at [147]). Both judges in the majority nevertheless concluded that leave under rule 4 should be granted given the errors demonstrated (at [121], [149]).

The gateway provision and the trial judge's ruling:

Both McCallum J and Davies J found that the trial judge failed to give proper consideration to the gateway provision in section 104(4) before permitting the cross-examination to proceed. That provision requires a finding that the accused has adduced evidence tending to prove that a prosecution witness has a tendency to be untruthful, and that the evidence is relevant solely or mainly to the witness's credibility (at [126], [139]-[141]). The trial judge's ex tempore ruling, which referred to the English decision in Hanson and the superseded test in Aldridge, did not demonstrate engagement with those requirements (at [123]-[127], [142]).

Balancing exercise and prejudice:

The majority further found that the trial judge failed to properly perform the balancing exercise required by section 137 and the fairness considerations in section 192(2) (at [143], [149]). McCallum J concluded that the connection between the applicant's prior convictions for possessing fake licences and the proposition he was testing was tenuous, and that the cross-examination on further dishonesty convictions was extremely prejudicial (at [131]-[132]).

Basten JA (dissenting):

Basten JA held that rule 4 was engaged and that the applicant had not demonstrated a miscarriage of justice warranting a grant of leave to appeal. His Honour noted that counsel for the applicant had been given ample forewarning of the proposed course, did not object, and effectively accepted that the cross-examination was inevitable. In circumstances where the jury had received a limiting direction and no further direction was sought at trial, the applicant could not establish the requisite miscarriage (at [93]-[105]).

Orders Made

  • Leave to appeal granted.
  • Appeal allowed and conviction quashed.
  • New trial ordered.

Key Takeaways

  • Under section 104(2) of the Evidence Act 1995 (NSW), a prosecutor must obtain leave before cross-examining an accused on matters relevant only to the assessment of that accused's credibility. Proceeding without that leave, and before a ruling has been made, contravenes an express statutory prohibition (at [117]-[128]).

  • Section 104(4) operates as a gateway provision: before leave can be granted, the court must be satisfied that the accused has adduced evidence tending to prove that a prosecution witness has a tendency to be untruthful and that the evidence is relevant solely or mainly to that witness's credibility. Relying on inapplicable authority, including the superseded test in Aldridge or the English decision in Hanson, does not satisfy that requirement (at [123]-[127], [139]-[141]).

  • Where a trial judge fails to properly consider the gateway provision in section 104(4) and fails to undertake the balancing exercise required by section 137, an appellate court may characterise those omissions as House v The King-type error justifying intervention, even where defence counsel did not formally object at trial (at [149]).

  • The majority and minority in this case disagreed on the application of rule 4 of the Criminal Appeal Rules to a ground of appeal alleging a prosecutor's breach of the Evidence Act. McCallum J held that rule 4 does not apply where the responsibility for the procedural failing lay squarely with the Crown, while Davies J held that the failure by defence counsel to object engaged the rule (at [108]-[120], [147]).

  • A jury direction about the permissible use of evidence of prior convictions, given after that cross-examination has already occurred rather than before, does not necessarily remedy the procedural and substantive failures that preceded it (at [144]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5, 5F, 6
- Criminal Appeal Rules, r 4
- Criminal Justice Act 2003 (UK), s 103
- Evidence Act 1898, s 56
- Evidence Act 1995 (NSW), ss 38, 55, 101A, 102, 103, 104, 104A, 135, 137, 190, 192, Dictionary
- Evidence Amendment Act 2007 (NSW), Sch 1 [41]
- Interpretation Act 1987 (NSW), s 6

Cases
- Button and Griffen v R [2002] NSWCCA 159; 129 A Crim R 242
- Chand v R [2011] NSWCCA 53
- Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37
- Penza and Di Maria v Regina [2013] NSWCCA 21
- Poniris v R [2014] NSWCCA 100
- Potts v R [2012] NSWCCA 229; 227 A Crim R 217
- R v Aldridge (1990) 20 NSWLR 737
- R v Cook [2004] NSWCCA 52
- R v El-Azzi [2004] NSWCCA 455
- R v FDP (2008) 74 NSWLR 645; [2008] NSWCCA 317
- R v Hanson [2005] 1 WLR 3169
- R v Le (2002) 54 NSWLR 474; [2002] NSWCCA 186
- Regina v Milakovic [2004] NSWCCA 199
- Regina v RPS (unrep, NSWCCA, 13 August 1997)
- Shepherd v R [2011] NSWCCA 245
- Steve v R [2008] NSWCCA 231; 189 A Crim R 68