http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/198.html

CRIMINAL LAW – Appeal against conviction – Sexual assault of a child – Evidence of uncharged acts admitted without objection – Requirements for admission as tendency evidence not satisfied – Errors in summing up – No complaint concerning summing up or request for further direction – Whether leave to rely on points not taken at trial should be granted – Character evidence – Evidence that appellant had no conviction for sexual assault – Whether evidence of uncharged acts thereby made admissible.

Evidence Act 1995 ss 97, 100, 101, 102, 110, 112, 135, 137, 192

[2004] NSWCCA 461

CRIMINAL LAW – Evidence – Character – Bad character – Good character – Whether adduced by defence – Whether evidence given deliberately not inadvertently – Conscience decision

CRIMINAL LAW – Evidence – Character – Requirement for leave – Leave required – Error by trial judge – No miscarriage of justice – Evidence Act, ss 112, 192(2)

CRIMINAL LAW – Jury – Directions – Character direction – Trial judge only directs that evidence of good character able to be considered in relation to guilt – No propensity direction – Requirement to so direct – Risk of jury misunderstanding legitimate use of evidence

CRIMINAL LAW – Evidence – Voice identification evidence – Quality of – Unreliable – Discretion to refuse admission – Identification warning given to jury – Evidence Act, ss 135, 137

[2004] NSWCCA 455

appeal against convictions

knowingly take part in manufacture of not less than large commercial quantity of methylamphetamine

conspiracy to manufacture not less than large commercial quantity of methylamphetamine

proper characterisation of the object of the conspiracy

impossibility of achievement by use of materials available

whether because object of conspiracy impossible of achievment by use of means proposed a permanent stay of proceedings ought be ordered

whether judge ought to have directed the jury they must be satisfied beyond reasonable doubt that the object of the alleged conspiracy was the manufacture of methylamphetamine as distinct from amphetamine

whether separate trial of first count ought to have been ordered

admissibility of coincidence evidence

directions concerning evidence admissible on individual counts

the effect of doubts concerning credibility of a witness in relation to one count on jury consideration of other counts

directions concerning circumstantial evidence

evidence of deceased witness read

indemnified witnesses

cross-examination of appellant on matters relevant only to credibility

evidence of prior criminal conviction

evidence of disciplinary proceedings

discretion to grant leave to cross-examine appellant on credibility

unfairness

“substantial probative value”

unreasonable verdicts

corroboration

corroboration of evidence of accomplices

whether one accomplice can corroborate the evidence of another

directions concerning unreliability of witnesses

jury access to transcripts of counsels’ addresses and summing up

leave to appeal against sentence

appeal dismissed

leave granted to appeal against sentence

appeal dismissed

Evidence Act (NSW) 1995 s65, s98, s101, s102, s103, s104, s112, s128, s135 s136 s137, s164, s165, s192

[2004] NSWCCA 74

Criminal appeal – kidnapping and sexual assault in company – separate trial applications – evidence of prior convictions – whether good character had been raised – identification evidence – directions on identification – whether defence submissions unsupported by evidence impacted upon fair trial for co-accused – judicial response thereto – whether warning about unreliability of evidence of co-accused appropriate – directions in relation to failure to testify – whether comment” infringed Evidence Act, s20(2) – whether address of counsel for one defendant caused co-accused’s trial to miscarry – whether verdicts unreasonable – evidence that medical examination of complaints was “consistent” with their history of assaults. (D)

Evidence Act 1995 ss20(2), 102, 110, 112, 115, 116, 135, 137, 138, 165(1)(d), s192(2)

[2002] NSWCCA 160

CRIMINAL LAW – possession of prohibited imports – Customs Act 1901, s 233B – appeal against conviction – leave to appeal against sentence – whether trial miscarried – directions to jury – onus and standard of proof – evidence of good character – direction on character – cross-examination of accused without leave – offensive cross-examination of accused – D

Evidence Act, s 41, s 112, s 137, s 192

[1985] HCA 79

Criminal Law – Evidence – Rape – Imputations on character of prosecutrix – Cross-examination of accused about prior convictions for offences involving dishonesty – Discretion of judge – Evidence Act 1977 (Q.), s. 15(2).

[2006] TASSC 52

Criminal Law – Appeal and new trial and inquiry after conviction – Appeal and new trial – Miscarriage of justice – Particular circumstances involving miscarriage – Misdirection and non-direction – Misdirection as to consent.

Weiss v R [2005] HCA 81; (2005) 80 ALJR 444, followed.
Aust Dig Criminal Law [958]

Criminal Law – Evidence – Evidentiary matter relating to witnesses and accused persons – Evidence of sexual experience, reputation and morality – Credibility – Character.

Evidence Act 2001 (Tas), ss102, 104(2), 110, 112.
Aust Dig Criminal Law [574]

[1997] FCA 561

CRIMINAL LAW – appeal against conviction and sentence of the Supreme Court – recklessly inflicting grievous bodily harm – grounds for appeal – error of law – statements from Crown witness unfairly prejudiced the accused – cross-examination of accused as to prior criminal history – miscarriage of justice – onus of proof.

EVIDENCE – admissibility of evidence as to the bad character and criminal propensity of the accused – whether the probative value of such evidence substantially outweighs the unfair or prejudicial effect to the accused – putting the character of the accused in issue – the Court’s discretion to grant leave to admit evidence of the prosecution to rebut evidence of the accused’s good character – admissibility of prior inconsistent statement – false denial of having been involved in the offence – consciousness of guilt – whether character evidence of the accused must be adduced by or on behalf of the accused rather than by the Crown in cross-examination – whether the Crown’s rebuttal of character evidence need be confined to those aspects of character raised by the accused.

WORDS & PHRASES – “adducing evidence”.

Crimes Act 1900 (ACT), ss47, 19, 20

Evidence Act 1995  (Cth), ss97, 101, 102, 103, 104, 108(3), 110, 112, 135, 137, 190(1)

[2008] NSWCCA 323

CRIMINAL LAW
appeal and new trial and inquiry after conviction
appeal and new trial
miscarriage of justice
misdirection and non direction
whether trial judge failed to give proper or adequate instruction regarding the nature and scope of elements of offence of making false instrument
Crimes Act 1900 s 300, s 305
CRIMINAL LAW
appeal and new trial and inquiry after conviction
appeal and new trial
miscarriage of justice
improper admission or rejection of evidence
whether substantial miscarriage of justice occasioned by decision of trial judge to grant leave to cross examine and manner and form of cross examination in relation to certain issues
Evidence Act 1995  s 104, s 112, s 192
CRIMINAL LAW
appeal and new trial and inquiry after conviction
appeal and new trial
miscarriage of justice
improper admission or rejection of evidence
whether substantial miscarriage of justice occasioned by failure of Crown to obtain leave regarding adducing of evidence of complaint
Evidence Act 1995  s 108, s 192
CRIMINAL LAW
appeal and new trial and inquiry after conviction
appeal and new trial
appeal against sentence
appeal by convicted persons

[2000] NSWCCA 404

Appellant charged with eleven sexual offences – one alleged victim – evidence of admission by appellant – evidence disclosing similar offence with another victim – appellant raises character – cross-examination – evidence of similar offences allegedly committed on two other victims – application of decision in Hoch v R [1988] HCA 50; (1988) 165 CLR 292 post  Evidence Act 1995  – tendency evidence – directions on character evidence – inconsistent verdicts.

 [1997] FCA 548

Criminal Law – Practice and Procedure – appeal against conviction – miscarriage of justice – removal of disruptive accused from Court – right of accused to be present at trial – discretion of trial judge to revoke bail – entitlement of jury to have regard to behaviour of accused throughout trial – direction from trial judge

Bail – Revocation of during trial

Abuse of process – police surveillance of accused – whether surveillance affected capacity of accused to conduct trial

Evidence – Admissibility of evidence demonstrating existence of relationship between accused and victim so as to explain act charged

Evidence – Whether fresh evidence not available at trial – whether sufficient to justify interference with verdict

Evidence – Whether evidence of good character of accused raised at trial – evidence in reply – appropriate use – discretion of Court – direction to jury

Evidence – Relevance and public interest immunity – accused denied access to prosecution documents – whether likely to be of assistance in answering prosecution case – whether accused prevented from presenting jury with reasonable hypothesis inconsistent with guilt

Evidence – Identification evidence – admissibility – use to which hearsay evidence of non-identification could be put – evidence of voice identification – direction from trial judge – whether adequate – s.60  Evidence Act 1995  (Cth)

Evidence – Disputed confessions – admissibility of tape recordings – s.84 Evidence Act 1992 – transcript – discretion to admit – procedure adopted by trial judge in presenting evidence of recorded material to jury

Evidence – Witnesses – cross-examination – need to cross-examine on case on which reliance to be placed – rule in Browne v Dunn – criminal proceedings – parts of defence case not put – application to criminal proceedings – unrepresented accused – consequences of failure to observe rule – inferences to be drawn – appropriate direction

Evidence Act 1995  (Cth) ss 4, 48, 59, 60, 62, 83, 64, 65, 66, 67, 84, 90, 97, 110, 112, 116, 130, 135, 136, 137, 138, 192