Tan v R [2008] NSWCCA 332

Tan v R [2008] NSWCCA 332

Although the trial judge erred in treating Lenati as unavailable under s 65, Exhibits E and F were otherwise admissible through ss 38 and 60 of the Evidence Act 1995 (NSW), no relevant unfair prejudice requiring exclusion under ss 135 or 137 was shown, the challenged statements were first-hand accounts rather than inadmissible Lee material, the jury access to the videotapes and directions did not cause a miscarriage of justice, and it was open to the jury to accept Lenati's recorded interviews as proving the appellant's involvement beyond reasonable doubt.

Jurisdiction
Australia
Judgment Date
19 December 2008
Procedural Posture
Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From Convictions in the District Court
Outcome
Appeal dismissed
Legal Topics
['discharging Firearm in a Public Place' 'appeal Against Conviction' 'miscarriage of Justice' 'hearsay' 'prior Inconsistent Statements' 'unavailable Witness' 'cross Examination of Own Witness' 'jury Access to Exhibits' 'unreasonable Verdict']
['criminal Law' 'evidence' 'criminal Procedure'] ['discharging Firearm in a Public Place' 'appeal Against Conviction' 'miscarriage of Justice' 'hearsay' 'prior Inconsistent Statements' 'unavailable Witness' 'cross Examination of Own Witness' 'jury Access to Exhibits' 'unreasonable Verdict']

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Procedural Posture

Criminal Appeal Against Conviction / Appeal to the New South Wales Court of Criminal Appeal From Convictions in the District Court

Legal Issues

  1. 1 ['Whether the trial judge erred by admitting Exhibits E and F, including under s 65 of the Evidence Act 1995 (NSW).' 'Whether Exhibits E and F contained admissions by the appellant admitted contrary to Lee v The Queen (1998) 195 CLR 594.' 'Whether the trial judge erred in allowing Exhibits E and F to be taken into the jury room where the jury could play them without supervision.' "Whether the trial judge failed to properly direct the jury about the use of Lenati's out of court statements." "Whether the jury's verdict was unreasonable or could not be supported by the admissible evidence."]

Ratio Decidendi

Although the trial judge erred in treating Lenati as unavailable under s 65, Exhibits E and F were otherwise admissible through ss 38 and 60 of the Evidence Act 1995 (NSW), no relevant unfair prejudice requiring exclusion under ss 135 or 137 was shown, the challenged statements were first-hand accounts rather than inadmissible Lee material, the jury access to the videotapes and directions did not cause a miscarriage of justice, and it was open to the jury to accept Lenati's recorded interviews as proving the appellant's involvement beyond reasonable doubt.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal against conviction dismissed.']