Tran v R [2017] NSWCCA 93

Citation: Tran v R [2017] NSWCCA 93
Court: Court of Criminal Appeal, New South Wales
Date: 17 May 2017
Judges: Macfarlan JA; Schmidt J; Wilson J

Background

The accused was charged with possessing a precursor substance intended for use in manufacturing a prohibited drug under the Drug Misuse and Trafficking Act 1985 (NSW). The prosecution subpoenaed her father to give evidence about observations he had made of his daughter's activities and those of her alleged co-offender.

The father exercised his right under s 18(2) of the Evidence Act 1995 (NSW) to object to giving evidence for the prosecution against a close family member. The trial judge in the District Court rejected that objection, finding that the balance of factors under s 18(6) did not warrant excusing him from giving evidence.

Two separate applications for leave to appeal against that ruling then came before the Court of Criminal Appeal. The accused sought leave to appeal on the basis that the trial judge had failed to comply with a procedural requirement in s 18(4). The father separately sought leave to appeal in his own name, or alternatively to intervene in his daughter's appeal.

Legal Issues

Whether the trial judge's ruling under s 18 constituted an interlocutory "judgment or order" susceptible to appeal under s 5F(3) of the Criminal Appeal Act 1912 (NSW).
Whether the father, as a prospective witness who had objected under s 18, qualified as a "party" for the purposes of seeking leave to appeal under s 5F(3).
Whether the trial judge had complied with the obligation under s 18(4) to satisfy himself that the father was "aware of the effect of" s 18 before proceeding to determine the objection.

Decision

Whether the ruling was a "judgment or order" for appeal purposes

The Court held that the trial judge's ruling rejecting the father's s 18 objection did constitute an interlocutory "judgment or order" within the meaning of s 5F(3) of the Criminal Appeal Act. This disposed of the Crown's preliminary objection on that point and confirmed that the ruling was amenable to appellate review.

Whether the father had standing as a "party"

The majority declined to treat the father as a "party to proceedings" for the purposes of s 5F(3). The Court noted that standing to seek leave under that provision has historically been confined to the prosecuting authority and the accused. The legislature had made specific provision elsewhere in the Act for non-parties such as protected confiders to appeal in defined circumstances, and the absence of equivalent provision for witnesses objecting under s 18 was significant. Wilson J, in separate reasons, observed that extending the concept of "party" to witnesses whose interests are affected by criminal proceedings could produce unwanted consequences, noting that victims would have an equally arguable claim to party status on that reasoning. The father's application for leave to appeal was therefore refused.

Whether s 18(4) was complied with

The accused succeeded in establishing that this ground of appeal had sufficient merit to warrant the grant of leave. However, the appeal was ultimately dismissed. The Court found no error in the trial judge's approach to the s 18(4) requirement, notwithstanding the accused's argument that the judge had not adequately satisfied himself that the father understood the effect of the section.

Orders Made

Leave to appeal refused to the father (Mr Ba Bao Tran).
Leave to appeal granted to the accused (Ms Anh Thu Tran).
The accused's appeal dismissed.

Key Takeaways

A trial judge's ruling rejecting a s 18(2) objection by a family member witness constitutes an interlocutory "judgment or order" for the purposes of s 5F(3) of the Criminal Appeal Act 1912 (NSW), and is therefore susceptible to an application for leave to appeal.
Under s 5F(3), standing to seek leave to appeal is confined to "parties" to criminal proceedings. The Court of Criminal Appeal confirmed that a prospective witness who has objected under s 18 of the Evidence Act does not, by reason of that objection alone, become a party entitled to seek leave in their own right.
Where the legislature has intended to extend appellate standing to non-parties in criminal proceedings, it has done so expressly, as demonstrated by the specific provisions for protected confiders in s 5F(3AA). The absence of equivalent provision for s 18 witnesses was treated as deliberate.
Section 18(4) imposes a procedural obligation on the court to satisfy itself that a prospective witness is aware of the effect of s 18 before proceeding to determine any objection. In this case, no error in the trial judge's approach to that obligation was established.
An accused person retains an avenue of appellate review over a ruling that compels a family member to give evidence against them, provided leave to appeal is obtained under s 5F(3)(a).

Legislation and Cases Referenced

Legislation

Criminal Appeal Act 1912 (NSW), s 5F
Evidence Act 1995 (NSW), ss 17, 18, 128, 132
Drug Misuse and Trafficking Act 1985 (NSW)
Criminal Procedure Act 1986 (NSW), Ch 6, Pt 5, Div 2
Interpretation Act 1987 (NSW), s 33

Cases

Attorney General (NSW) v Lipton (2012) 224 A Crim R 177; [2012] NSWCCA 156
Attorney-General for New South Wales v Stuart (1994) 34 NSWLR 667
Osborne v R (2014) 238 A Crim R 417; [2014] NSWCCA 17
R v Abdullah [1999] NSWCCA 188
R v Ahmed [2001] NSWCCA 450
R v RAG [2006] NSWCCA 343
Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52
Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 89 NSWLR 110; [2015] NSWCA 85