REGINA v TANG [2003] NSWCCA 357

REGINA v TANG [2003] NSWCCA 357

The trial judge's direction permitting the jury to act on the basis that Mr Manunu could not assist the appellant if called was erroneous. In the circumstances of a criminal trial, and particularly where the prosecution bore the burden of proof and the witness could have given evidence on matters directly in issue,...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
19 December 2003
Procedural Posture
Conviction Appeal Murder / Appeal to the Court of Criminal Appeal Against Conviction After Second Trial; the Only Ground Pressed Concerned Directions Given to the Jury on the Appellant's Failure to Call Witnesses.
Outcome
Appeal upheld; conviction quashed; new trial ordered.
Legal Topics
['murder' 'conviction Appeal' 'jones V Dunkel Direction' 'failure to Call Witness' 'burden of Proof' 'proviso Under Criminal Appeal Act 1912 S6(1)']
['criminal Law' 'evidence' 'criminal Procedure'] ['murder' 'conviction Appeal' 'jones V Dunkel Direction' 'failure to Call Witness' 'burden of Proof' 'proviso Under Criminal Appeal Act 1912 S6(1)']

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Procedural Posture

Conviction Appeal Murder / Appeal to the Court of Criminal Appeal Against Conviction After Second Trial; the Only Ground Pressed Concerned Directions Given to the Jury on the Appellant's Failure to Call Witnesses.

Legal Issues

  1. 1 ["Whether the trial judge erred in giving a Jones v Dunkel direction against the appellant concerning the failure to call Mr Manunu Treiblemayr, the appellant's parents, Mr Treiblemayr's parents and Mr He." 'Whether there was evidence that the uncalled witnesses were available to give evidence.' 'Whether the direction risked reversing the onus of proof in a criminal trial.' 'Whether any miscarriage could be cured by the proviso to s6(1) of the Criminal Appeal Act 1912.']

Ratio Decidendi

The trial judge's direction permitting the jury to act on the basis that Mr Manunu could not assist the appellant if called was erroneous. In the circumstances of a criminal trial, and particularly where the prosecution bore the burden of proof and the witness could have given evidence on matters directly in issue, a Jones v Dunkel direction adverse to the accused should not have been given. The misdirection was capable of affecting important aspects of the Crown case, including the alleged telephone admission, and the proviso in s6(1) of the Criminal Appeal Act 1912 did not apply.

Court Disposition

Appeal upheld; conviction quashed; new trial ordered.

Orders

  • ['Appeal upheld.' 'Conviction quashed.' 'New trial ordered.']