Category Archives: s. 112

Amos v R [2014] NSWCCA 302 (12 December 2014)

CRIMINAL LAW – appeal against conviction – murder – joint trial – whether separate trial should have been ordered – application for separate trial not made – whether miscarriage of justice – cross-examination of appellant about character without leave – factual error made by counsel – whether miscarriage of justice – appeal dismissed

Huges (a Pseudonym) v The Queen [2013] VSCA 338 (28 November 2013)

CRIMINAL LAW – Appeal against conviction – Appellant convicted of sexual offending against two natural daughters – Whether appellant led evidence of good character – Whether the trial judge erred in allowing the Crown to adduce evidence of bad character through cross-examination and in rebuttal – Appeal allowed – Convictions quashed and retrial ordered.

DPP v Kocoglu [2012] VSC 185 (9 May 2012)

CRIMINAL LAW – Application for advance ruling on whether cross-examination of the main Crown witness on his criminal record would result in the Court granting leave to the prosecution to cross-examine the Accused on his criminal record if he gave evidence – If cross-examination on the main Crown witness’s criminal record were confined to that witness’s drug offences, leave would not be given to the prosecution to cross-examine the Accused on any aspect of his criminal record – If the main Crown witness were cross-examined on his entire criminal record, leave would be granted to the prosecution to cross-examine the Accused only on his prior dishonesty offences – Phillips v The Queen [1985] HCA 79; (1985) 159 CLR 45 applied; R v El-Azzi [2004] NSWCCA 455 (16 December 2004) considered – Evidence Act 2008, ss 101A, 102, 103, 104, 110, 112, 192, 192A.

ES v R (No.2) [2010] NSWCCA 198 (6 September 2010)

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

R v El-Kheir [2004] NSWCCA 461 (20 December 2004)

[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

R v El-Azzi [2004] NSWCCA 455 (16 December 2004)

[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


“substantial probative value”

unreasonable verdicts


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

REGINA v SKAF, GHANEM & HAJEID [2004] NSWCCA 74 (7 April 2004)

[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)

R v Soto-Sanchez [2002] NSWCCA 160 (10 May 2002)

[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

Vikramdeep Singh v Department of Public Prosecutions (NSW) [2006] NSWCCA 333 (18 October 2006)

[2006] NSWCCA 333

UNFAIR TRIAL – conduct of co-accused – Appellant and co-accused tried together – whether conduct by co-accused’s counsel inflammatory, to the extent of being improper or unfair to the Appellant – refusal to admit evidence going to the credit of co-accused – failure to warn jury as to unreliability of the co-accused’s evidence against the Appellant – no direction requested under Evidence Act 1995 (NSW), s 165 – failure to give directions with respect to evidence of flight

SENTENCE – “special circumstances” for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – balance of period of the sentence not exceeding one-third of the non-parole period

Evidence Act 1995 (NSW), ss 9, 102, 103, 112, 135, 138, 164, 165

W v R [2006] TASSC 52 (30 June 2006)

[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]

Derek Gabriel v the Queen [1997] FCA 561 (25 June 1997)

[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)

Nikolaidis v R [2008] NSWCCA 323 (17 December 2008)

[2008] NSWCCA 323

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
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
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
appeal and new trial and inquiry after conviction
appeal and new trial
appeal against sentence
appeal by convicted persons

R v OGD (No 2) [2000] NSWCCA 404 (13 October 2000)

[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.

Stanoevski v R [2001] HCA 4; 202 CLR 115; 177 ALR 285; 75 ALJR 454 (8 February 2001)

[2001] HCA 4

Evidence –  Evidence Act 1995  (NSW) – Character evidence – Accused raised own good character – Judicial discretion to allow cross-examination of accused on alleged past misdeeds not directly related to facts in issue – Whether discretion to allow cross-examination miscarried.

Words and phrases – “good character” – “credibility” – “leave, permission or direction” – “unfairness”.

Evidence Act 1995  (NSW), ss 55, 56, 102, 104, 106, 112, 135, 192.

David Harold Eastman v the Queen [1997] FCA 548 (25 June 1997)

 [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

Leung v R [2003] NSWCCA 51 (1 May 2003)

[2003] NSWCCA 51

Criminal law


Attempt to obtain possession of narcotic goods

More than commercial quantity

Circumstantial case

Prior entry into Australia using false name and documents

False banking and other documentation

Knowledge of goods in possession of accused

Suspicious circumstances combined with failure to make inquiry

Wilful blindness

Specific direction not required






Ambit of s 108(3) of  Evidence Act 1995

Section 108(3) not limited to the particular witness in the witness box against whom relevant allegation made

Limitation on use of prior consistent statement admitted only under s 108(3)

Procedure to be adopted in relation to evidence concerning prior consistent statement


No miscarriage of justice

Role of Appellant more than mere courier, not mastermind but performing organisational role in relevant criminal enterprise

Evidence Act: ss 55, 66, 97(1), 100, 102, 103, 108(3), 112, 135, 137, 190(2), 192; Part 3.8