1 On 21 October 2014, I ruled that the prosecution could not rely on certain conduct as incriminating conduct. I said that I would give my reasons later. I now give my reasons.
PRACTICE AND PROCEDURE – application for summary dismissal and/or strike out of applicant’s summons – summons failed to disclose any reasonable cause of action – summons was manifestly groundless
CRIMINAL LAW – Conviction – Arson – Election against refusal by Judicial Registrar of application for extension of time within which to file application for leave to appeal against conviction – Delay of almost two years in instituting appeal – Proposed appeal without merit – Application refused – No point of principle.
CRIMINAL LAW – Sentence – Election against refusal by Judicial Registrar of application for extension of time within which to file application for leave to appeal against sentence – Whether sentence manifestly excessive – Proposed appeal without merit – Application refused – No point of principle.
CRIMINAL LAW – CONVICTION APPEAL – attempting to possess a commercial quantity of an unlawfully imported border control drug – 102 kilograms of pure heroin – whether a miscarriage of justice because of lack of qualifications of expert interpreter called in Crown case – whether verdict of jury unreasonable or could not be supported by the evidence – whether evidence as to flight properly admitted – evidence of Crown expert not misleading – differences in interpretation between Crown and defence experts not of significance in conduct of trial – differences in interpretation adequately explained by differences in audio equipment – strong circumstantial Crown case – on whole of the evidence open to the jury to be satisfied beyond reasonable doubt as to guilt – evidence of flight properly admitted – no breach of s137 of the Evidence Act 1995 in admitting evidence of flight – conviction appeal dismissed – APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE – whether principle of parity properly taken into account – no significant difference in level of criminality between applicant and co-offender – differences in subjective case of applicant and co-offender – sentence of co-offender manifestly inadequate – parity principle not properly applied – need for applicant to be re-sentenced.
ADMINSTRATIVE LAW – Judicial review – Order 56 Supreme Court (General Civil Procedure) Rules 2005 – Decision of Judicial Registrar in Magistrates’ Court – Decision set aside – Order in nature of certiorari inutile – Re-hearing of charges – Order in the nature of mandamus unavailable – Adjournment application refused.
Animals – Various statutory provisions – Prevention of cruelty to animals – Offences – Causing unnecessary pain and cruelly ill-treating – Proof and evidence – Whether criminal standard of negligence applicable.
CRIMINAL LAW – evidence – tendency evidence – admissibility – whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the respondent pursuant to s 101(2) of the Evidence Act 1995 (NSW) – whether judicial directions may ameliorate any prejudicial effect
CRIMINAL LAW – evidence – context evidence – admissibility – whether evidence of the respondent’s sexual mistreatment of the complainant other than on the occasion charged on the indictment made a relevant contribution to the context of the events charged in the indictment – whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the respondent pursuant to s 137 of the Evidence Act 1995 (NSW)
EVIDENCE – admissibility – tendency evidence – whether notice requirement should be dispensed with – whether unfair prejudice to do so
CRIMINAL LAW – EVIDENCE – witness – examination in chief – whether leave should be granted for a witness to revive his memory by reference to a document – evidence highly probative
CRIMINAL LAW – EVIDENCE – witness – examination in chief – witness granted certificate pursuant to Evidence Act s 128 – whether the jury should be informed of the grant and its effect
CRIMINAL LAW – EVIDENCE – admissibility – post mortem photographs – whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant
CRIMINAL LAW – evidence – severance of counts – assault occasioning actual bodily harm – separate trial – murder – accused state of mind – transactional evidence
CRIMINAL LAW – evidence – identification evidence – modes of identification – other visual identification – single photograph – accompanying online news article
CRIMINAL LAW – evidence – identification evidence – admissibility – single photograph – unreliability – displacement effect
CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – Evidence Act 1995; s 137 – prejudicial evidence – probative value – unfairly prejudicial to accused – whether danger of unfair prejudice to the accused outweighs probative value
CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – Evidence Act 1995; ss 135, 137 – prejudicial evidence – whether evidence unfairly prejudicial to accused
CRIMINAL LAW – Sexual offences – Sexual penetration of child ‘under his care, supervision or authority’ – Accused was previously Principal of victim’s school – Sexual acts occurred after accused had resigned as Principal – Whether victim remained under accused’s ‘care, supervision or authority’ – Whether evidence of former Principal–pupil relationship admissible – Whether temporal proximity relevant – Crimes Act 1958 (Vic) ss 48, 49.
CRIMINAL LAW – Appeal – Practice and procedure – Offence of having sexual intercourse without consent – Where matter referred to the Court of Criminal Appeal following an application under the Crimes (Appeal and Review) Act 2001 – Where referral made on single ground of Muldrock error – Where appellant sought to raise additional grounds – Whether appellant required an extension of time and leave of the Court in order to be able to rely upon such grounds – Where unnecessary to determine that question in light of error found in respect of the ground which was the subject of the referral
CRIMINAL LAW – Appeal – Muldrock error – Where sentencing judge engaged in two-stage process of sentencing – Error made out – Necessity to consider the remaining three grounds in determining whether some other sentence was warranted in law and should have been passed
CRIMINAL LAW – Appeal – Where legislation made provision for alternative bases on which jury could be satisfied of the appellant’s knowledge of lack of consent on the part of the victim – Where Crown submitted on sentence that a finding should be made that the appellant knew that the victim was not consenting to sexual intercourse – Where no contrary submission was made by counsel for the appellant on sentence – Whether sentencing judge had an obligation to consider the remaining alternatives
CRIMINAL LAW – Appeal – Where sentencing judge did not specifically refer to low risk of re-offending – Where specific reference to such risk in Pre-sentence report – Where sentencing judge obviously aware of report – Necessity to make allowance for the fact that reasons were delivered ex tempore immediately following sentence proceedings
CRIMINAL LAW – Appeal – Where error found – Where appellant sentenced to imprisonment for 7 years and 6 months with a non-parole period of 5 years – Whether some other sentence warranted in law – Nature of offending – Where appellant misrepresented to victim that he was able to assist her career ambitions – Where offending not planned – Where statements made by victim along with her demeanour clearly indicated a lack of consent – Where appellant forced intercourse in any event – No other sentence warranted
CRIMINAL LAW – EVIDENCE – voice identification evidence – admissibility – proposed evidence received on voir dire by way of statement – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused – how trial judge should properly approach this balancing exercise
EVIDENCE – Tendency evidence – Review of intermediate appellate court decisions – Principle to be applied to determine admissibility – Hoch v The Queen  HCA 50; (1988) 165 CLR 292; R v Papamitrou  VSCA 12; (2004) 7 VR 375; R v Ellis  NSWCCA 319; (2003) 58 NSWLR 700; W v The Queen  FCA 1648; (2001) 115 FCR 41; CGL v Director of Public Prosecutions (Vic)  VSCA 26; (2010) 24 VR 486; AE v The Queen  NSWCCA 52; PNJ v Director of Public Prosecutions (Vic)  NSWCCA 338; (2010) 27 VR 486; (2005) 156 A Crim R 308; NAM v The Queen  VSCA 95; GBF v The Queen  VSCA 135; R v Ford  NSWCCA 306; (2009) 273 ALR 286; JLS v The Queen (2010) 28 VR 328; Director of Public Prosecutions (Vic) v BCR  VSCA 229; PG v The Queen  VSCA 289; CW v The Queen  VSCA 288; KRI v The Queen  VSCA 127; (2011) 207 A Crim R 552; RHB v The Queen  VSCA 295; RJP v The Queen (2011) 215 A Crim R 315; RR v The Queen  VSCA 442; DR v The Queen  VSCA 440; CEG v The Queen  VSCA 55; Reeves v The Queen  VSCA 311; R v PWD  NSWCCA 209; (2010) 205 A Crim R 75; BSJ v The Queen  VSCA 93; (2012) 35 VR 475; Semaan v The Queen  VSCA 134; Murdoch v The Queen  VSCA 272; SLS v The Queen  VSCA 31R; CV v Director of Public Prosecutions (Vic)  VSCA 58; Doyle v The Queen  NSWCCA 4; Sokolowskyj v The Queen  NSWCCA 55; DAO v The Queen  NSWCCA 63; (2011) 81 NSWLR 568; RH v The Queen  NSWCCA 55, considered – Cross-admissibility of three complainants’ evidence – Evidence Act 2008 (Vic) s 97.
CRIMINAL LAW – Trial – Failure to object to evidence – Whether tendency evidence – Whether words ‘is not admissible’ in Evidence Act 2008 (Vic) s 97 should be construed as ‘is not admissible over objection’ – R v Reid  NSWCCA 258; Gonzales v The Queen  NSWCCA 321; (2007) 178 A Crim R 232; FDP v The Queen  NSWCCA 317; (2008) 74 NSWLR 645, considered – Deliberate decision for forensic reasons not to object – R v Radford (1993) 66 A Crim R 210; Shaw v The Queen (Unreported, Court of Criminal Appeal (NSW), Gleeson CJ, Dowd and Hidden JJ, 3 April 1996); R v Gay [ VR 577, followed – Waiver – R v Clarke  VSCA 294; (2005) 13 VR 75; R v McCosker  QCA 52;  2 Qd R 138, followed – Whether trial judge under duty to intervene.
CRIMINAL LAW – Trial – Directions to jury – Inadequate directions as to tendency reasoning – Identification of features of tendency evidence necessary – Explanation necessary as to why tendency evidence makes fact in issue more probable – RR v The Queen  VSCA 442; RJP v The Queen (2011) 215 A Crim R 315, considered – Inappropriate direction as to sexual interest in complainants as evidence of ‘state of mind’ – Appeal allowed – Retrial ordered.
EVIDENCE – Criminal Procedure Act 2009 (Vic) s 377(3) – Exception to hearsay rule – Whether fact asserted in previous representation must be subject of evidence by person who makes assertion – Complainant recants previous assertion – Evidence should therefore have been excluded.
CRIMINAL LAW – Conviction – Appeal – Whether verdicts unsafe or unsatisfactory – Verdict of acquittal entered on Charges 3 and 11.
CRIMINAL LAW – Appeal – Interlocutory appeal – Review of the trial judge’s refusal to certify with respect to interlocutory decision – Identification evidence – Applicant arraigned and pleaded not guilty to an indictment containing a charge of intentionally causing serious injury – Complainant identified the applicant from a photograph on Facebook – Whether probative value of identification evidence outweighed by the danger of unfair prejudice – Trial judge refused to exclude the identification evidence – Application was made for certification – Certification refused – Application to review certification decision refused – Interlocutory decision plainly correct – Whether reasons for granting leave ‘clearly outweigh any disruption to trial’ – Application for review – Criminal Procedure Act 2009 (Vic) ss 295 (2)–(3), 296, 297 (2).
CRIMINAL LAW – appeal against conviction – whether defence counsel implicitly relied upon s 137 Evidence Act at trial – whether trial judge obliged to consider application of s 137 in the absence of reliance on that section – whether leave required pursuant to r 4 Criminal Appeal Rules where objection to admission of evidence is taken on one basis at trial and on a different basis on appeal – leave under r 4 refused – whether trial judge failed to advise jury of limitations on use of the evidence and to properly direct jury on motive to lie
CRIMINAL LAW – Whether admission of evidence of appellant’s participation in a prior assault should have been excluded under s 137 of the Evidence Act 2008 (Vic) – Prior assault provided motive for and inextricably linked to offences charged – Appellant bound by rational forensic decision of counsel not to object to admission of evidence – Nudd v The Queen  HCA 9; (2006) 80 ALJR 614; Suresh v The Queen  HCA 23; (1998) 102 A Crim R 18; and James v The Queen  VSCA 55, followed – Appeal dismissed.
CRIMINAL LAW – Whether admission of evidence of appellant’s participation in a prior assault controverted the appellant’s acquittal for that assault – Fact of acquittal not placed in evidence – No manifest inconsistency between evidence adduced and the fact of the appellant’s acquittal – Whether trial judge erred in failing to direct the jury that it could not reach a conclusion that the appellant was guilty of the prior assault – Storey v The Queen  HCA 39; (1978) 140 CLR 364; R v Carroll (2002) 213 CLR 635; Gilham v The Queen (2012) 224 A Crim R 22; R v VN  VSCA 111; (2006) 15 VR 113; and Washer v Western Australia  HCA 48; (2007) 234 CLR 492, followed.
CRIMINAL LAW – Whether trial judge erred in failing to give an anti-propensity warning in relation to the evidence of appellant’s participation in the prior assault – No requirement to give an anti-propensity warning where there is minimal or non-existent risk of evidence being used for propensity reasoning – R v Georgiev  VSCA 18; (2001) 119 A Crim R 363; Conway v The Queen  FCA 461; (2000) 98 FCR 204; and FDP v The Queen  NSWCCA 317; (2008) 74 NSWLR 645, followed.
CRIMINAL LAW – Kidnapping – Whether directions to jury impermissibly expanded Crown case – Whether kidnapping is a continuing offence – Davis v The Queen  NSWCCA 392 and R v Vu  BCCA 112, followed – Leave to appeal refused.
CRIMINAL LAW – EVIDENCE – admissibility – proposed evidence received on voir dire by way of statement – whether evidence relevant – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused
CRIMINAL LAW – Admission – Evidence Act 2008 – Voice identification – Taped record of interview with police used for the purposes of voice comparison – Whether ‘admission’ for the purposes of s 90 of the Evidence Act 2008 – Whether a record of interview with police used for the purposes of voice comparison should have been excluded under s 137 of the Evidence Act 2008 – Whether any other power to exclude exists – Application for leave to appeal against conviction granted – Appeal dismissed.
EVIDENCE – Whether Ch 3 of the Evidence Act 2008 as to exclusion of admissible evidence is a ‘code’ – Existence of overarching common law discretion to exclude evidence the admission of which would be unfair to the accused – Whether common law discretion survives the Evidence Act 2008 – Effect of s 56 of the Evidence Act 2008 – Sections 90, 136, 137 and 138 considered – Whether s 464J of the Crimes Act 1958 has been impliedly repealed – McNeill v The Queen  FCAFC 80; (2008) 168 FCR 198, Meteyard v Love  NSWCA 444; (2005) 65 NSWLR 36 and Butcher v Lachlan Elder Realty  NSWCA 237; (2002) 55 NSWLR 558, not followed.
EVIDENCE – application to exclude DNA evidence – judge alone trial – drug trafficking charges – whether evidence relevant – whether probative value outweighed by danger of unfair prejudice – where potential for contamination – virtually no risk of judge or magistrate giving evidence more weight than entitled – strength of circumstantial case found in examining all of evidence together
Criminal Code 2002 (ACT), s 603(7)
Evidence Act (ACT), ss 55(1), 56(1), 135, 137
EVIDENCE – lies – consciousness of guilt – “Edwards” direction – approach of trial judge in considering application for direction.
EVIDENCE – statements made by deceased about previous assaults upon her – relationship evidence – hearsay – s 65(2)(b) of the Evidence Act – whether representations made “shortly after” asserted fact occurred.
EVIDENCE – photographs and observations of deceased’s injuries – whether probative value outweighed by prejudicial effect – Evidence Act s 137.
CRIMINAL LAW – appeal against conviction – application for extension of time years after conviction entered – applicable principles – Criminal Appeal Act 1912 (NSW) s 6 – consideration of the prospects of success of the grounds of appeal – whether directions of the trial judge in relation to complaint violated the principle in Palmer v The Queen – whether evidence of flight should have been admitted at first instance – whether trial judge erred in his directions regarding evidence of flight – application of considerations analogous to the proviso
CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Applications granted and appeals heard instanter and dismissed– Three charges of maintaining a sexual relationship with a child under 16 – Total effective sentence of 11 years and nine months’ imprisonment with a non-parole period of nine years – No error by trial judge in directing the jury that it could convict on the charges of maintaining a sexual relationship with a child under 16 – ‘Occasions’ were sufficiently particularised – No error by trial judge in ruling that evidence that applicant accessed child pornography was admissible to refute applicant’s statements in police interview that he was only interested in adult women – No error by the trial judge in admitting a video recording of a pretext conversation between the complainant and the applicant – Sentence not manifestly excessive – Appeal dismissed – Crimes Act 1958 ss 47A, 70(1).
EVIDENCE – CCTV footage – relevance – whether probative value of footage outweighs danger of unfair prejudice – s 137 of the Evidence Act 1995
CRIMINAL LAW – appeal and new trial – appeal against conviction – extension of time in which to seek leave to appeal – delay largely unexplained – proposed appeal based upon point conceded to be “technical” and found to be devoid of merit – extension of time refused
CRIMINAL LAW – sentence – murder – jury verdict – stabbing with intention to kill – fact finding after trial – no premeditation but not impulsive or spontaneous – above mid range of objective seriousness – no remorse – guarded prospects of rehabilitation – no special circumstances
CRIMINAL LAW – conviction appeal – assault with an act of indecency upon a person under the age of 10 – whether tendency evidence properly admitted at trial – evidence relevant and capable of proving a tendency – the tendency specified was at a high level of generality – purpose of evidence to rebut likely challenge to Crown case – tendency evidence lacked “significant probative value” – probative value of tendency evidence did not substantially outweigh its prejudicial effect – tendency evidence should have been rejected – conviction quashed.
CRIMINAL LAW – Conviction – Murder – Evidence – Relevance – Admissibility – Connection with crime – Disposition of applicant – Drunken orgy extending over two days – Whether evidence of applicant’s drunken aggressive behaviour towards persons other than deceased on morning of second day of orgy, some hours before killing of deceased, admissible as evidence of part of one transaction of which killing formed part – O’Leary v The King  HCA 44; (1946) 73 CLR 566, applied – Evidence Act 2008 , ss 135, 137.
JURY – Discharge – Whether judge erred in refusing to discharge jury after inadmissible evidence given in error – Whether evidence productive of substantial miscarriage of justice – Crofts v The Queen  HCA 22; (1996) 186 CLR 427, applied; Baini v The Queen  HCA 59; (2012) 246 CLR 469; Baini v The Queen (No 2)  VSCA 157, referred to.
VERDICT – Whether unreasonable – Whether, in view of lies told by principal Crown witness and inconsistencies between evidence of witnesses, jury bound to have reasonable doubt as to identity of killer or her capacity to form murderous intent – Libke v The Queen  HCA 30; (2007) 230 CLR 559, applied; The Queen v O’Connor  HCA 17; (1980) 146 CLR 64, referred to; Cutter v R  HCA 7; (1997) 143 ALR 498, distinguished.
Application for leave to appeal against conviction and sentence – One charge of rape – Applicant sentenced to total effective sentence of seven years imprisonment with a nonparole period of five years – Trial judge erred in admitting evidence of the Applicant’s past violent conduct as relationship evidence – Substantial miscarriage of justice – Application granted – Appeal allowed – New trial ordered – Baini v The Queen (2012) 246 CLR 469 – s 276(1)(b) of the Criminal Procedure Act 2009 (Vic).
Criminal Law – Evidence – Confessions and admissions – Statements – Records of interview – Discretion to exclude – Unfairness – Intoxication, tiredness, unavailability of solicitor.
Evidence Act 2001 (Tas), s90.
R v Ostojic (1978) 18 SASR 188; R v Helmhout  NSWSC 208; (2000) 112 A Crim R 10, referred to.
Aust Dig Criminal Law 
Criminal Law – Evidence – Hearsay – Particular matters – Maker of statement not available – Witness refusing to give evidence – Representations by alleged co-offender in police interview.
Evidence Act 2001 (Tas), ss65(2)(d), 137.
R v Suteski  NSWCCA 509; (2002) 56 NSWLR 182; J v Tasmania (2011) 20 Tas R 425; R v Sood  NSWCCA 214; Festa v R (2001) 208 CLR 593, referred to.
Aust Dig Criminal Law 
CRIMINAL LAW – Director’s application – Leave to appeal against permanent stay of 12 counts of indecent assault on children under 16 years of age – Most recent alleged offending occurred 32 years prior to trial – Whether a case of ‘simple’ delay giving rise to mere presumptive prejudice – Whether possible to address prejudice to accused through procedural steps short of a permanent stay – Gross delay giving rise to specific forensic disadvantage – Possible to address some specific disadvantages through procedural steps – Leave to appeal granted – Appeal allowed in part.
CRIMINAL LAW – Evidence – Murder – Aggravated burglary – Admissibility of boot worn by accused – Prosecution seeking to match imprint at scene with accused’s boots – Prosecution in opening expressly disavowing any such connection – Irreversible forensic decisions by accused’s counsel based on prosecution position – Unfair prejudice to accused – Evidence excluded.
CRIMINAL LAW – conviction appeal – historical sexual offences – aggravated indecent assault and aggravated sexual intercourse without consent – admissibility of other uncharged sexual acts as context evidence – whether such evidence “tendency evidence” – whether probative value of evidence outweighed by its unfair prejudice – need for evidence to explain background to what otherwise would appear to be two isolated and unconnected offences – evidence necessary to explain failure of victim to complain at the time of the offending – reasonable assumption that jury would follow judicial directions – evidence of uncharged acts admissible as context evidence.
CRIMINAL LAW – attempt to import marketable quantity of heroin, dealing with money the proceeds of crime (C’th) – supply large commercial quantities of heroin, methylamphetamine (NSW) – appeal against conviction – joint trial of counts – whether evidence cross-admissible – whether defences prejudiced
EVIDENCE – admissibility – credibility or reliability – whether photographic evidence of tattoos admissible for the purposes of bolstering witness’s credibility in terms of what may be observed from certain vantage points; JUDICIAL DISCRETION TO EXCLUDE EVIDENCE – prejudicial nature of evidence – whether probative value outweighs unfair prejudice to the accuse
EVIDENCE – admissibility – judicial discretion to exclude or limit the use of evidence – where evidence sought to be lead seeks to contradict expert evidence
CRIMINAL LAW – Conviction – Armed robbery and attempted armed robbery – Applicant sentenced to a 25 years Supervision Order pursuant to Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) – Indictment – Severance – Prejudice – Whether charges should have been severed – Verdict – Whether verdict unreasonable – Evidence – Whether secondary evidence of contents of lost CCTV recordings should have been excluded under s 137 of Evidence Act 2008 – Pitkin v R  HCA 30; (1995) 130 ALR 35; Libke v The Queen  HCA 30; (2007) 230 CLR 559; Festa v The Queen (2001) 208 CLR 593, referred to – Evidence Act 2008 s 137.
WORDS AND PHRASES – ‘Document’ – Whether judge erred in treating CCTV footage as document within the meaning of s 48 of Evidence Act 2008 –Taylor v Chief Constable  1 WLR 1480; R v Sitek  2 Qd R 284; Smith v The Queen  HCA 50; (2006) 206 CLR 650 referred to.
CRIMINAL LAW – appeal against conviction – sexual offences alleged by multiple complainants – tendency evidence – circular or coincidence reasoning – whether the trial judge misdirected the jury as to tendency.
CRIMINAL LAW – appeal against conviction – evidence of complaint – whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.
CRIMINAL LAW – appeal against conviction – sexual experience of complainant – s 293 Criminal Procedure Act 1986 – whether error in refusing leave to cross-examine complainant about sexual experience.
CRIMINAL LAW – appeal against conviction – s 38 Evidence Act 1995 – whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence – whether error in directions.
CRIMINAL LAW – appeal against conviction – whether the trial judge erred in declining re-examination to re-establish credibility.
CRIMINAL LAW – appeal against conviction – whether impermissible cross-examination of the appellant’s character witnesses.
CRIMINAL LAW – appeal against conviction – whether summing up was fair and balanced – whether the trial judge failed to adequately put the defence case to the jury.
CRIMINAL LAW – Crown appeal against sentence – whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.
CRIME – sentence – murder – intention to kill formed quickly and in a state of rage – no planning or premeditation – no remorse – impossibility of assessing likelihood of re-offending or prospects of rehabilitation in light of offender’s refusal to accept responsibility for his offending – evidence of good character – whether of any weight where referees blind to or ignorant of any wrongdoing by offender – whether high level of media attention a relevant mitigating factor
CRIME – appeal against conviction – where appellant acquitted during trial on four counts of sexual assault and then convicted on remaining five counts – whether verdicts unreasonable – whether evidence of an alleged admission to the complainant’s husband should have been excluded under s 137 of the Evidence Act – whether evidence of statements by mother of complainant excluded by consent ought to have been admitted
CRIMINAL LAW – Crown appeal – Criminal Appeal Act 1912, s 5F(3A) – accused charged with sexual intercourse without consent – Crimes Act 1900, s 61I – pre-trial evidentiary rulings – Criminal Procedure Act 1986, s 293(4)(a) – evidence of complainant’s sexual interest in a man other than accused – evidence irrelevant – whether tendency evidence – whether evidence of sexual experience or sexual activity – whether at or about time of commission of offence charged – evidence inadmissible
EVIDENCE – evidence of telephone conversation recorded pursuant to warrant – admissions – Evidence Act , s 90 – whether unfair to admit evidence – whether complainant acting as “agent of the State” – whether unfair derogation of accused’s right to exercise free choice to speak or be silent – whether conversation “functional equivalent of an interrogation” – “eliciting behaviour” – whether admissions made voluntarily
EVIDENCE – Evidence Act , s 137 – probative value of evidence – whether existence of alternative explanation relevant to assessment of probative value – facts in issue – Evidence Act s 137 contrasted with Evidence Act s 98 – whether credibility, reliability or weight of evidence relevant to assessment of probative value – Crown appeal allowed
EVIDENCE—Complaint evidence—Historical indecent assault on child—Whether complaint was extracted or induced—Held that complaint must be seen in context—Evidence admissible—Appeal dismissed
EVIDENCE—Complaint evidence—Historical indecent assault on child—Whether evidence unreliable—Inconsistent prior statements made by witness—Held that issues properly dealt with by way of jury directions and warning—Evidence admissible—Appeal dismissed
CRIMINAL LAW—Jury verdict—Appeal—Whether unreasonable with regard to evidence—Historic indecent assault on child—Inconsistent and allegedly unreliable evidence—Jury returned mixed verdicts across multiple counts—Held that jury verdicts reflect close scrutiny and careful consideration by jury—No reasonable doubt entertained—Appeal dismissed
CRIMINAL LAW – conviction appeal – convictions for armed robbery – unreasonable verdict – admission of resemblance evidence – s 137 Evidence Act 1995 – circumstantial evidence – DNA evidence – fresh evidence
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage of justice – Misdirection or non-direction – Misdirection – Reasonable doubt – Examination of doubt suggested.
Graham v R  TASSC 153; (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191; Ladd v R  NTCCA 6; (2009) 27 NTLR 1, followed.
Aust Dig Criminal Law 
Criminal Law – Appeal and new trial – Miscarriage of justice – Particular circumstances not amounting to miscarriage of justice – Misdirection or non-direction – Non-direction – Conduct of accused after two crimes committed – Possible inference of consciousness of some wrongdoing – Edwards direction not given.
Edwards v R  HCA 63; (1993) 178 CLR 193, distinguished.
Woon v R  HCA 23; (1964) 109 CLR 529, referred to.
Aust Dig Criminal Law 
Criminal Law – Appeal and new trial – Verdict unreasonable or unsupportable having regard to the evidence – Appeal allowed – Evidence displaying inadequacy and lacking probative force – Murder – Circumstantial evidence – Guilty verdict open to jury only if unchallenged expert evidence rejected.
Shepherd v R  HCA 56; (1990) 170 CLR 573; M v R  HCA 63; (1994) 181 CLR 487; Whitehorn v R  HCA 42; (1983) 152 CLR 657; Chamberlain v R (No 2)  HCA 7; (1984) 153 CLR 521; Morris v R  HCA 50; (1987) 163 CLR 454; Chidiac v R  HCA 4; (1991) 171 CLR 432, referred to.
Aust Dig Criminal Law 
CRIMINAL LAW – Ruling No 1: Alleged dismembering, burning and disposal of body – Driving of deceased’s car to Queensland and disposing of same – Alleged lies in record of interview – Whether evidence of incriminating conduct – Foreshadowed ruling – Deferral of ruling until after accused arraigned – Jury Directions Act 2013 (Vic), ss 23 & 34 and Schedule – Criminal Procedure Act 2009 (Vic), s 210;
Ruling No 2: Manner of administering oaths or affirmations to jurors – Juries Act 2000 (Vic), s 42 & Schedule 3 – Evidence (Miscellaneous Provisions) Act 1958 (Vic), Part IV, Division 2 & Part 1 of Third Schedule – Evidence Act 2008 (Vic), Chapter 2, Part 2.1, Division 2 & Schedule 1 – Error in discharging first jury;
Ruling No 3: Release of transcript of trial – Suppression order – Supreme Court Act 1986 (Vic), ss 18 & 19;
Ruling No 4: Crown application to cross-examine own witness – Evidence Act 2008 (Vic), ss 38 & 60 – Application granted;
Ruling No 5: Closure of court for witness’s evidence of child sexual abuse;
Ruling No 6: Application to lead evidence of alleged lies as evidence of incriminating conduct – Application refused;
Ruling No 7: Application to withdraw evidence of key witness from jury – Rozenes v Beljajev  VicRp 34;  1 VR 533; Dupas v The Queen (2012) 218 A Crim R 507; Evidence Act 2008 (Vic), s 137 – Application refused;
Ruling No 8: Submission of no case to answer – Submission rejected;
Ruling No 9: Application for Prasad invitation – Application granted – Verdict of not guilty returned;
Ruling No 10: Hearsay – Application to limit use of evidence – Evidence Act 2008 (Vic), ss 60, 65 & 136 – Unnecessary to determine application.