Tran v R [2018] NSWCCA 145

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Tran v R [2018] NSWCCA 145 Hearing dates: 6 July 2018 Date of orders: 23 July 2018 Decision date: 23 July 2018 Before: Payne JA at [1]; Schmidt J at [52]; Button J at [53] Decision: (1) Leave to appeal against the interlocutory order made by Craigie SC DCJ be granted pursuant to s 5F(3)(a) of the Criminal Appeal Act;

(2) Appeal allowed;

(3) Vacate the order made by Craigie SC DCJ on 14 March 2018 refusing to uphold Mr Ba Bao Tran's objection to giving evidence under to s 18 of the Evidence Act pursuant to s 5F(5)(a) of the Criminal Appeal Act;

(4) Mr Ba Bao Tran's objection pursuant to s 18 of the Evidence Act is remitted to the District Court to be determined afresh in accordance with these reasons;

(5) Publication of this judgment be restricted to the parties until there is a verdict of the jury in the applicant's trial or for a period of 12 months from today's date whichever first occurs. If any further period of restriction is sought by either party, leave is granted to make written application to the chambers of the presiding judge. The order is made as it is necessary to prevent prejudice to the proper administration of justice within the meaning of s 8(a) of the Court Suppression and Non-publication Orders Act 2010. Catchwords: INTERLOCUTORY APPEAL – s 5F Criminal Appeal Act – accused found not to have standing to make submissions about objection to giving evidence at trial under s18 Evidence Act made by accused's father – whether denial of procedural fairness

EVIDENCE — witness evidence — compellability —parents – whether witness should be excused from giving evidence – s 18 Evidence Act – whether the trial judge denied the accused procedural fairness by finding she had no standing – whether the trial judge had failed to take into account a material consideration – whether the trial judge's finding about co-accused was plainly unreasonable Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) s 8 Criminal Appeal Act 1912 (NSW) s 5F Criminal Procedure Act 1986 (NSW) s 130, 279 Drug Misuse and Trafficking Act 1985 (NSW) ss 24A, 33AB Evidence Act 1995 (NSW) ss 18, 19, 65, 138 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 DWN042 v Republic of Nauru [2017] HCA 56 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 R v A2; R v KM; R v Vaziri (No. 4) [2015] NSWSC 1306 R v Fletcher [2015] NSWSC 1630 R v Quinn [2016] NSWSC 1101 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54 Tran v R [2017] NSWCCA 93 Category: Procedural and other rulings Parties: Anh Thu Tran (Applicant) DPP (Respondent) Representation: Counsel: T Quilter (Applicant) A Chhahra (Witness) E Balodis (Respondent)