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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, NSW
Date: 10 June 2016
Judge(s): Basten JA at [1]; McCallum J at [106]; Davies J at [134]

Background

The appellant was convicted by a jury on three counts of armed robbery and two counts of attempted armed robbery arising from a series of incidents in May 2012. He was said to have been the getaway driver for a co-offender who physically entered the targeted premises armed with a shotgun. His co-offender gave evidence for the prosecution implicating him in all five offences. The appellant was sentenced to a total term of 10 years imprisonment with a non-parole period of 6 years and 6 months.

At trial, the prosecutor cross-examined the appellant on his criminal record. This cross-examination began before the trial judge had formally granted leave to conduct it, though the matter was foreshadowed beforehand and the judge later delivered an interlocutory ruling. Critically, no objection was taken by defence counsel at the time.

The appellant sought leave to appeal against conviction on the sole ground that the cross-examination on his criminal record was conducted without the required grant of leave by the trial judge, resulting in a miscarriage of justice.

  • Whether an explicit grant of leave by the trial court was required before the prosecution could cross-examine the accused on his prior convictions under s 104 of the Evidence Act 1995 (NSW).
  • Whether the accused's challenge to the credibility of a prosecution witness had opened the "gateway" under s 104 of the Evidence Act, thereby permitting such cross-examination.
  • Whether the trial judge was obliged, under s 137 of the Evidence Act, to exclude the evidence even in the absence of an objection from defence counsel.
  • Whether r 4 of the Criminal Appeal Rules (which addresses the consequences of a failure to object at trial) barred the appeal ground from being raised, and whether leave to appeal should be granted.

Decision

The Court of Criminal Appeal refused leave to appeal. The central issue was whether the cross-examination of the appellant on his prior convictions was permitted by the Evidence Act, and whether any irregularity in the process by which it occurred caused a miscarriage of justice.

On the s 104 gateway question, the Court considered whether the appellant's challenges to the prosecution witness's credibility at trial had opened the gateway permitting cross-examination of the accused himself on credit. The Court found that the appellant had indeed challenged the credibility of the prosecution witness, and that this opened the relevant gateway under s 104. Accordingly, the prosecution was entitled to seek leave to cross-examine the accused on his prior convictions, and the trial judge's interlocutory ruling, though delivered after the questioning had begun, addressed the applicable statutory requirements.

On the question of whether explicit leave was required and whether its absence caused a miscarriage, Basten JA emphasised that this case was a paradigm example for the operation of r 4 of the Criminal Appeal Rules. The failure to object was not an oversight but a deliberate forensic choice by defence counsel in light of the strategy adopted to meet the co-offender's incriminating evidence. The Court was not satisfied that, even had an objection been taken in time, the outcome would have been different or that a miscarriage of justice resulted.

On s 137 of the Evidence Act (which requires a court to refuse evidence if its probative value is outweighed by the danger of unfair prejudice to the defendant), the Court noted that this provision applies to credibility evidence in certain circumstances, but found no basis to conclude that its non-application here, in the absence of any objection, produced an injustice sufficient to warrant disturbing the conviction.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A failure by defence counsel to object to cross-examination on prior convictions at trial is not automatically cured on appeal. Under r 4 of the Criminal Appeal Rules, where the omission was a deliberate tactical choice rather than an oversight, the Court of Criminal Appeal will be slow to grant leave and will require satisfaction that a miscarriage of justice actually resulted.

  • Where an accused challenges the credibility of a prosecution witness at trial, this can open the gateway under s 104 of the Evidence Act 1995 (NSW), permitting the prosecution to seek leave to cross-examine the accused on his or her own prior convictions for credibility purposes.

  • The Court of Criminal Appeal confirmed that the precise procedural sequence by which leave is granted under s 104 matters, but irregularities in that sequence will not automatically produce a miscarriage of justice, particularly where the substance of the applicable statutory test was eventually addressed by the trial judge.

  • Under s 137 of the Evidence Act, a court may be required to exclude evidence whose probative value is outweighed by the danger of unfair prejudice, but the absence of an objection at trial is a significant factor when assessing whether any failure to apply that provision gives rise to a ground of appeal.

  • In dismissing the application for leave, the Court reinforced that the strength of the prosecution case and the nature of the trial strategy adopted by the accused are relevant considerations when assessing whether any procedural irregularity in the admission of evidence caused an actual miscarriage of justice.

Legislation and Cases Referenced

Legislation
- 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]
- Criminal Appeal Act 1912 (NSW), ss 5, 5F, 6
- Criminal Appeal Rules, r 4
- Interpretation Act 1987 (NSW), s 6
- Criminal Justice Act 2003 (UK), s 103
- Evidence Act 1898, s 56

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