Citation: Tiriaki v R [2023] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 29 March 2023
Judges: Price J (primary reasons); Ierace J; McNaughton J
Background
In the early hours of New Year's Eve 2011, Matthew Hedges was fatally shot through a loungeroom window at his home in Chester Hill. The murder weapon was a .357 Smith and Wesson Magnum revolver. Two men were charged: the applicant and his co-accused.
Both men stood trial in 2014 and both denied any involvement under oath. The Crown case was circumstantial. Physical items found in the applicant's brother's bin, including the revolver, gloves, tape, hoodies and face masks, carried DNA matching both accused. Critically, DNA from the revolver's trigger and trigger-guard was matched to the applicant.
The jury found the applicant guilty of murder and the co-accused guilty of manslaughter. The sentencing judge found the jury was satisfied the applicant fired the fatal shot. The applicant was sentenced to 28 years' imprisonment with a non-parole period of 20 years. The co-accused received 14 years with a 10-year non-parole period.
Legal Issues
- Whether the co-accused's post-trial confession constituted "fresh evidence" for the purposes of a conviction appeal
- Whether that fresh evidence was "apparently credible or capable of belief"
- Whether there was a significant possibility that a jury acting reasonably would have acquitted the applicant of murder had that evidence been available at trial
- Whether a miscarriage of justice had occurred, notwithstanding the applicant's own trial evidence denying any presence at or involvement in the shooting
Decision
Fresh evidence: The Court unanimously held that the co-accused's confession constituted fresh evidence. Although the co-accused could theoretically have given this account at trial (absent the perjury he committed), the applicant could not reasonably have anticipated that his co-accused would confess to being the shooter. The evidence was therefore properly characterised as fresh.
Credibility of the confession: The Court acknowledged significant concerns about the co-accused's credibility. His trial testimony had been deliberately false, his stated reasons for confessing, including religious conviction and a desire to start afresh, attracted scepticism, and there were inconsistencies in his accounts of events before and after the shooting. His pending sentence appeal also complicated the picture. Nevertheless, the Court found the confession was "capable of belief." Factors supporting this included the co-accused's violent criminal history and diagnosed mental health conditions, and, most significantly, that he had exposed himself to further criminal proceedings by confessing and had no discernible motive to falsely claim responsibility for killing the deceased.
Significant possibility of acquittal: The Court evaluated the fresh evidence in the context of the full trial record, rejecting the applicant's argument that it should assume the applicant would give a different account at a retrial consistent with the co-accused's confession. Even on that basis, the Court found that a jury would have been powerfully affected by the co-accused's admission. The combination of the co-accused's self-incrimination and the absence of any apparent motive to lie created a real and significant possibility that a reasonable jury would have acquitted the applicant of murder.
Miscarriage of justice: The Crown argued that no unfairness arose because the applicant had made forensic choices at trial, in particular running an alibi defence, that were now inconsistent with the co-accused's account. The Court rejected that submission. The significance of the fresh evidence outweighed any such forensic election. A miscarriage of justice had occurred, and a new trial was the only proper outcome. All three judges reached this conclusion, with Ierace J and McNaughton J adding brief observations acknowledging the unusual and difficult nature of the case.
Orders Made
- Leave granted to the applicant to raise ground 1 of the appeal
- Appeal allowed
- Conviction of murder entered on 9 May 2014 quashed
- New trial ordered
Key Takeaways
- Fresh evidence from a co-offender who perjured themselves at trial can still qualify as "fresh evidence" on appeal where the applicant could not reasonably have anticipated that confession during trial preparation.
- The "apparently credible or capable of belief" threshold for fresh evidence does not require the appellate court to be satisfied the evidence is true. It requires the court to assess whether it has sufficient cogency to warrant the conclusion that a reasonable jury might act upon it.
- When fresh evidence is assessed for its likely impact at trial, that assessment occurs in the context of the evidence as it stood at trial, including the applicant's own evidence. The Court of Criminal Appeal rejected any assumption that the applicant would give a different account at retrial.
- A co-offender's self-incriminating confession carries particular weight where the confessing witness has exposed themselves to further criminal proceedings and has no discernible motive to falsely claim responsibility.
- Forensic choices made by an accused at trial, such as running an alibi, do not automatically foreclose a finding of miscarriage of justice where subsequent fresh evidence is of sufficient significance.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 319, 327
- Criminal Appeal Act 1912 (NSW), s 5(1)(b)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 100, 101
Cases
- Craig v The King (1933) 49 CLR 429
- Davies and Cody v The King (1937) 57 CLR 170
- Gallagher v The Queen (1986) 160 CLR 392
- Lawless v The Queen (1979) 142 CLR 659
- Mickelberg v The Queen (1989) 167 CLR 259
- MRW v R [2011] NSWCCA 260
- R v Abou-Chabake (2004) 149 A Crim R 417
- R v Bikic [2002] NSWCCA 227
- R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764
- Ratten v The Queen (1974) 131 CLR 510
- Rogerson v R, McNamara v R (2021) 290 A Crim R 239
- Tabbah v R [2019] NSWCCA 324