Tran v R [2017] NSWCCA 93

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tran v R [2017] NSWCCA 93 Hearing dates: 1 March 2017 Decision date: 17 May 2017 Before: Macfarlan JA at [1]; Schmidt J at [34]; Wilson J at [60] Decision: (1) Grant leave to appeal to Ms Anh Thu Tran and to Mr Ba Bao Tran. (2) Allow the appeals. (3) Order pursuant to s 5F(5)(a) of the Criminal Appeal Act that the ruling of Pickering DCJ dated 19 October 2016 requiring Mr Tran to give evidence as a witness for the prosecution in the trial of Ms Tran be vacated. (4) Remit Mr Tran's objection under s 18(2) of the Evidence Act to the District Court for determination in accordance with law. Catchwords: CRIMINAL LAW – evidence – compellability of witnesses – objection by accused's father to giving evidence for the prosecution against accused – s 18(2) Evidence Act 1995 (NSW) – whether trial judge satisfied himself that prospective witness was "aware of the effect" of s 18 as required by s 18(4)

PRACTICE AND PROCEDURE – interlocutory appeals – 'judgment or order' – application for leave to appeal under s 5F(3)(a) Criminal Appeal Act 1912 (NSW) – applicant's father objected to giving evidence against the applicant – primary judge's ruling that the applicant was a compellable witness was a 'judgment or order' for the purposes of s 5F(3)

PRACTICE AND PROCEDURE – interlocutory appeals – s 5F(3) Criminal Appeal Act 1912 (NSW) – a "party" may seek leave to appeal – objection by accused's father to giving evidence for prosecution against accused rejected – s 18 Evidence Act 1995 (NSW) – prospective witness a "party" for the purposes of s 5F(3)