Lai v R; Nguyen v R [2017] NSWCCA 263

Lai v R; Nguyen v R [2017] NSWCCA 263

The trial judge erred in admitting Mai's ERISP on a global basis without separately assessing the reliability of each representation under s 65(2)(d) Evidence Act as required by the High Court's decision in Sio v The Queen; this error deprived the appellants of a chance of acquittal fairly open to them, constituting a substantial miscarriage of justice. As sufficient circumstantial evidence exists to support the charges, the appeals are allowed, convictions quashed, and a new trial ordered.

Jurisdiction
Australia
Judgment Date
15 November 2017
Procedural Posture
Criminal Appeal / Appeal Against Conviction – Post Judgment, Court of Criminal Appeal
Outcome
Appeals allowed; convictions quashed; new trials ordered
Legal Topics
['hearsay Evidence' 'admissibility of Evidence' 'exception to Hearsay Rule' 'joint Criminal Enterprise' 'aggravated Robbery' 'miscarriage of Justice' 'application of Proviso' 'order for New Trial']
['criminal Law'] ['hearsay Evidence' 'admissibility of Evidence' 'exception to Hearsay Rule' 'joint Criminal Enterprise' 'aggravated Robbery' 'miscarriage of Justice' 'application of Proviso' 'order for New Trial']

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Procedural Posture

Criminal Appeal / Appeal Against Conviction – Post Judgment, Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether hearsay evidence of co-accused admitted under s 65(2)(d) Evidence Act 1995 (NSW) was correctly admitted' "Whether Crown's concession of error should be accepted" 'Whether proviso in s 6(1) Criminal Appeal Act 1912 (NSW) should be applied' 'Whether to order a new trial or enter acquittals']

Ratio Decidendi

The trial judge erred in admitting Mai's ERISP on a global basis without separately assessing the reliability of each representation under s 65(2)(d) Evidence Act as required by the High Court's decision in Sio v The Queen; this error deprived the appellants of a chance of acquittal fairly open to them, constituting a substantial miscarriage of justice. As sufficient circumstantial evidence exists to support the charges, the appeals are allowed, convictions quashed, and a new trial ordered.

Court Disposition

Appeals allowed; convictions quashed; new trials ordered

Orders

  • ['Allow the appeals against conviction.' "Quash the appellants' convictions for aggravated robbery." 'That there be a new trial of each appellant for the offence of aggravated robbery.']