Tsang v DPP (Cth)

(2011) 35 VR 240; [2011] VSCA 336

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Evidence
3. › Hearsay
4. › Statements by co-accused in absence of accused
5. › Three bases of admissibility
6. › Circumstantial evidence
7. › Original evidence of agreement
8. › Co-conspirators' rule
9. › Whether reasonable evidence of conspiracy required
10. › Ahern v The Queen (1988) 165 CLR 87
11. › Tripodi v The Queen (1961) 104 CLR 1
1. Criminal Law
2. › Evidence
3. › Hearsay
4. › Co-conspirators' rule
5. › Application to aiders and abettors
6. › Whether rule applies where statement sought to be admitted is made by person charged with aiding and abetting
7. › Criminal Code 1995 (Cth), s 11.2
1. Criminal Law
2. › Appeal
3. › Conviction
4. › Jury directions
5. › Use of interpreter by accused
6. › Whether prosecutor entitled to submit accused was 'hiding behind an interpreter'
7. › Whether assessment of abuse of interpreter is matter for jury
8. › Whether further directions required
1. Criminal Law
2. › Appeal
3. › Conviction
4. › Jury directions
5. › Whether trial judge required to warn jury of dangers of relying on statements made in absence of accused where maker could not be cross-examined

Quick Take

The co-conspirators' rule applies not only where the accused is charged with conspiracy but also to substantive offences committed by persons acting in concert, including where the statement sought to be admitted was made by a person charged with aiding and abetting the principal offender. The assessment of whether an accused has abused or used an interpreter for tactical advantage is a proper matter for the jury, and the prosecution is entitled to make submissions on this issue as part of its case on credit. The totality principle in Mill v The Queen does not require a sentencing judge to take into account a sentence served in a foreign jurisdiction for unrelated offences that did not occur at the same time as the offences being sentenced.