CRIMINAL LAW – appeal against conviction – offence of causing grievous bodily harm with intent to cause grievous bodily harm – appellant threw methylated spirits onto bed where victim lay and ignited bedclothes – victim retracted earlier statement to police – whether trial judge erred in admitting into evidence complainant’s statement to police – whether use of victim’s statement to police resulted in miscarriage of justice – whether use of evidence disclosing consciousness of guilt resulted in miscarriage of justice – whether Zoneff direction was required – whether verdict is unreasonable or cannot be supported having regard to evidence – appeal dismissed
EVIDENCE – accused was playing violent computer game before confrontation leading to death of deceased – whether evidence of nature of the computer game admissible – whether probative of state of mind of accused – whether probative value outweighed by prejudicial effect.
EVIDENCE – whether probative value of photos outweighed by their prejudicial effect – no question of principle.
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.
CRIMINAL LAW – Appeal – Conviction – Sexual penetration of child under 16, indecent act with child under 16 – Convicted on four charges, acquitted of two – Whether verdicts inconsistent – Whether verdicts otherwise unsafe and unsatisfactory – Alleged admissions by appellant – Whether admissible – Whether judge’s directions adequate – Crown concession of error – Verdicts not unsafe – Retrial ordered – Evidence Act 2009 (Vic) s 137.
EVIDENCE – offence of aggravated people smuggling – evidence of admission made to officer of Royal Australian Navy boarding party – use of translation cards – objection taken at trial on ss 85, 90, and 139 – evidence admitted – asserted unfairness, unreliability and failure to adequately caution – findings of fact open with regard to s 85 that circumstances did not adversely affect truth of admissions – no House v The King error regarding reliance upon caution administered with translation cards as bearing against rejection of the admission for the purposes of ss 90 and 139 – decisions below not erroneous
CRIMINAL LAW – offences – people smuggling – s 233C Migration Act – appellant crew on boat found near Christmas Island with fifty-seven passengers – made admissions in response to translation card that indicated awareness of being in Australian waters – conversations with passengers on voyage to similar effect – trial judge directed that the necessary intention was awareness of passengers intended destination of Australia – proper directions about unreliability of conversations and admission – Crown case not reliant on proving that appellant aware Christmas Island was part of Australia – defence case simply that appellant going to entirely different destination in Indonesia – no misdirection on elements established
CRIMINAL LAW – appeals generally – practice and procedure – objection to admissions taken below on specific grounds – objection not upheld – further grounds raised in support of objection in appeal against ruling – application of Rule 4 where objection taken below but new grounds raised on appeal – consideration of general requirement that counsel make clear at trial the grounds on which particular rulings are sought – Rule 4 applies – common law practice generally contrary to reliance upon new grounds, subject to question of miscarriage of justice
EVIDENCE – relationship evidence – whether relevant – operation of exclusionary provisions
CRIMINAL LAW – appeal against conviction – two counts of supply in contravention of the Drug Misuse and Trafficking Act 1985.
CONSTITUTIONAL LAW – inconsistency between State and Commonwealth laws – whether s 25 of the Drug Misuse and Trafficking Act 1985 is inconsistent with s 233B of the Customs Act 1901 (Cth).
EVIDENCE – admissibility – improperly obtained evidence – gravity of impropriety or contravention – evidence gathered pursuant to authority under the Law Enforcement (Controlled Operations) Act 1997 – authority subsequently held to be invalid.
EVIDENCE – admissibility – improperly obtained evidence – whether the trial judge correctly assessed the overall risk of harm of the controlled operation to the community.
EVIDENCE – admissibility – improperly obtained evidence – whether the trial judge erred in considering the defence of reasonable excuse in relation to s 233B of the Customs Act 1901 (Cth).
EVIDENCE – admissibility – improperly obtained evidence – whether desirability of admitting the illegally or improperly obtained evidence outweighed the undesirability.
EVIDENCE – witness – cross-examination on voir dire – privilege – self-incrimination – whether answers would tend to prove an offence against a law of a foreign country – proof of foreign law – whether the interests of justice required that the evidence be given over objection.
CRIMINAL LAW – sentencing – parity principle.
APPEAL AND NEW TRIAL – appeal against conviction – where evidence of relationship between complainant and appellant admitted at trial – whether evidence relevant to facts in issue – whether evidence involved tendency reasoning
EVIDENCE – Whether evidence was obtained illegally or improperly – Discretion to admit evidence where desirability to admit outweighs undesirability to admit – Evidence obtained for the purpose of defence of litigation – Evidence obtained by improper or illegal conduct – Assessment of probative value of evidence – Probative value high, desirability of admitting outweighs desirability of excluding – Evidence Act 2008 (Vic) ss 135, 137, 138.
PRACTICE AND PROCEDURE – Obligations of parties and their solicitors under Part 2.3 of the Civil Procedure Act 2010 (Vic) – Obligation to act honestly – Obligation to cooperate with the parties and the Court – Obligation not to engage in conduct which is misleading or deceptive – Obligation not to engage in conduct which is likely to mislead or deceive – Obligation to use reasonable endeavours to narrow the issues – Failure of Applicant and Defendant to narrow the issues – Failure of Applicant and Defendant to cooperate – Failure of Defendant not to act in a way that was likely to mislead – Civil Procedure Act 2010 (Vic) ss 16, 17, 20, 21, 23.
STATUTORY INTERPRETATION – Scope of statutory authority of Electricity Corporation to enter private property – Consent of landowners to Electricity Corporation entering private property – Electricity Industry Act 2000 (Vic) ss 1, 20, 21, 85, 88, 93, 95.
CRIMINAL LAW – Appeal – Conviction – Murder – Co-offender pleaded guilty – Multiple gunshots to victim’s head – Applicant shot and stabbed victim – Whether open to jury to conclude that applicant aided and abetted or acted in concert with co-offender – Whether evidence of victim’s emergency calls admissible to prove applicant’s participation – Consciousness of guilt – Whether evidence of applicant’s lies admissible – Leave to appeal refused – R v Ciantar  VSCA 263; (2006) 16 VR 26 applied – Evidence Act 2008 (Vic) ss 65(2), 137, 192.
Statutes – Interpretation – Recovery of proceeds of crime – Examination orders – Appellants charged with offences – New South Wales Crime Commission applied for orders that appellants be examined on oath pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW) – Subject matter of examination would have overlapped with subject matter of criminal proceedings – Whether s 31D empowered examination of person charged with offences where subject matter of examination would overlap with subject matter of offences charged.
Words and phrases – “accusatorial system of criminal justice”, “derivative use immunity”, “direct use immunity”, “examination”, “fair trial”, “principle of legality”, “privilege against self-incrimination”, “real risk of interference with the administration of justice”, “right to silence”, “serious crime related activity”.
Criminal Assets Recovery Act 1990 (NSW), ss 12, 13, 13A, 31D, 63.
CRIMINAL LAW – Conviction – Conspiring to do acts in preparation for or planning of terrorist act contrary to ss 11.5(1) and 101.6(1) of Criminal Code (Cth) – Reconnoitring Holsworthy Barracks and seeking Islamic fatwa for armed attack on barracks – Whether convictions unsafe and unsatisfactory or otherwise unreasonable – Whether open to find accused committed acts in furtherance of conspiracy – Trial – Whether trial unfair by reason of Crown alleging lies evidencing consciousness of guilt against one accused but not another – Jury directions – Whether judge sufficiently directed jury as to need for Crown to prove intent to advance Islam through violence – Whether judge erred by creating new arguments for Crown – Inconsistent verdicts – Whether acquittal of some co-accused inconsistent with conviction of others – Indictment – Severance – Whether strength of Crown case against one co-accused so much weaker than strength of Crown case against another as to require that indictment be severed – Possible alternative verdicts – Whether judge bound to leave State offence as possible alternative verdict to Commonwealth offence charged – Constitutional law – Freedom of religion – Whether proscription of advancement of religious causes by violent means a law ‘for prohibiting the free exercise of any religion’ contrary to s 116 of the Commonwealth Constitution – Evidence – Whether evidence of accused’s hostility towards Australia and her citizens to be excluded as evidence of which the probative value was outweighed by prejudicial effect – Whether judge sufficiently directed jury that evidence admissible against one accused not admissible against another – Whether judge erred in directing jury that some aspects of evidence important and others peripheral – Criminal Code (Cth), ss 11.5(1) and 101.6(1) – Commonwealth Constitution, s 116.
CRIMINAL LAW – Sentence – Each offender sentenced to 18 years’ imprisonment with a non-parole period of 13 years and six months – Whether sentence manifestly excessive – Amateurish operation – Application of three-quarters rule in determining parole period – Lodhi v The Queen  NSWCCA 360; (2007) 179 A Crim R 470, R v Elomar  NSWSC 10; (2010) 264 ALR 759, and Benbrika v The Queen (2010) 29 VR 593, considered.
CRIMINAL LAW – Sentence – Director’s appeal – Whether sentence manifestly inadequate – Seriousness of offence and maximum penalty – General and specific deterrence – Protection of the community.
CRIMINAL LAW – Sexual offences – Cross admissibility of evidence of two complainants – Evidence of concoction, collusion and contamination – Whether trial judge erred by admitting the tendency and coincidence evidence – Whether the trial judge gave adequate directions – Appeal allowed – Convictions quashed and a retrial ordered.
CRIMINAL LAW – Appeal against sentence – Whether the sentencing judge erred in imposing a higher sentence on retrial than that imposed following previous trial – Observations on justification for increasing sentence following real possibility of collusion could not be excluded – Retrial.
CONTEMPT OF COURT – alleged failure of fourth respondent to comply with order of the Federal Court of Australia – two charges of contempt of Court – consideration of requisite elements and whether proven beyond reasonable doubt – whether alleged contemptor was knowingly concerned in breach of orders
Held: both charges of contempt of Court proved beyond reasonable doubt, notwithstanding that certain particulars of charge 2 not so proved
EVIDENCE- exceptions to hearsay rule when witness unavailable – witness refuses to give evidence
EVIDENCE – criminal – evidence of flight – whether unfair prejudice – where defence rebuttal would require evidence of accused’s prior offending and experience with police
CONTRACT – construction – assignment of rights – whether party to contract (obligee) can grant charge over its contractual rights to third party without consent of other contracting party (obligor) – where contract stipulates that rights under the agreement “cannot be assigned, encumbered or otherwise dealt with… without the prior consent of the other parties (not to be unreasonably withheld)” – whether unreasonable withholding of consent constitutes breach of contract or affirmative grant of consent
CONTRACT – assignment of rights – whether refusal of obligor to consent to grant of charge over assignor’s contractual rights unreasonable – obligor protected from suit by assignor by order barring further proceedings unless lump sum costs order paid – whether purported assignee willing to pay costs – whether assignee bound by barring order – whether identity and solvency of proposed assignee legitimate considerations – where contractual relationship continues only for purpose of resolving disputes under contract – respondents concerned with legal and financial status of purported assignee – whether these matters extraneous to agreement
EVIDENCE – proof – onus – which party bears onus of proof to establish unreasonableness of refusal to consent to charge over contractual rights – where obligor commenced proceedings for declaratory relief pleading consent to charge reasonably withheld – absence of consent not contested – whether obligor needed to justify refusal of consent – not established whether unreasonable withholding of consent discharged need to obtain consent – if not, obligor entitled to relief – if so, assignees required to prove underlying factual basis, being unreasonableness of withholding consent
EVIDENCE – admissibility – judicial discretion to exclude or limit use of evidence – letters sent by obligors articulating basis for refusing consent – whether letters unfairly prejudicial, misleading or confusing – whether letters should be limited to proving refusal of consent – whether letters could be used to prove subjective intention of obligor – where assignees denied opportunity to cross-examine respondents’ witnesses – whether absence of opportunity to cross-examine constitutes unfair prejudice – Evidence Act 1995 (NSW), s 136
Conveyancing Act 1919 (NSW), s 133B
Evidence Act 1995 (NSW), ss 59, 60, 135, 136, 137
EVIDENCE LAW – evidence of presence of illicit substance in accused’s body – opinion about effect of drug on accused – relevant to whether accused was person who committed the offence – whether danger of unfair prejudice outweighs probative value – evidence to be admitted
RIMINAL LAW – Murder – special hearing pursuant to the Mental Health (Forensic Provisions) Act 1990 – where Crown relied upon circumstantial case – necessity to consider the entirety of the circumstantial case in determining whether the accused’s commission of the alleged offence was proved beyond reasonable doubt
EVIDENCE – admissions – exclusion of admissions on the basis that they were improperly obtained or alternatively on the basis that to use them against the accused would be unfair – where accused suffering from brain damage, epilepsy, alcohol dependence and resultant cognitive impairment – where accused had been interviewed by the police on two occasions and had denied killing the deceased – where police subsequently implemented undercover operation – where police were aware during the course of the undercover operation that the accused was undergoing treatment for psychological issues and alcohol dependence – where police continued with the undercover operation in those circumstances – where accused initially repeatedly denied responsibility for the deceased’s death to undercover operative – where accused ultimately admitted at the conclusion of the undercover operation that she killed the deceased – whether the actions of the police in implementing and continuing the undercover operation were improper – whether the circumstances in which the admissions were made were otherwise improper – whether the evidence of the accused’s admissions should be excluded as having been improperly obtained – alternatively whether evidence of the accused’s admissions should be excluded on the basis of unfairness
EVIDENCE – admissions – where evidence that the accused had allegedly admitted to the killing of the deceased – where the person giving evidence of the alleged admission first raised the assertion four years after such admission was allegedly made – whether the evidence of the admission should be excluded on the basis of unfairness.
EVIDENCE – lies – where Crown relied upon lies told by the accused as evidence of consciousness of guilt – whether the statements made by the accused were in fact lies – whether the lies were deliberate – whether the lies were evidence of consciousness of guilt
EVIDENCE – tendency evidence – whether evidence relied upon by the Crown which established tendency on the part of the accused to act aggressively
EVIDENCE—Admissibility—Statements of deceased witness identifying accused—Statements made four and five days following incident—Whether made in circumstances that make it highly probable that the representations are reliable—Statements admitted
EVIDENCE—Admissibility—Statements of deceased witness identifying accused—Statements made four and five days following incident—Whether statements made “shortly after” the incident—Held that the ordinary usage of the phrase “shortly after” not inconsistent with time elapsed—Held that identification of own cousin likely to be clear after five days—Statements admitted
CRIMINAL LAW – Appeal against conviction – One count of rape and one count of intentionally causing injury – Evidence of distress – Whether ‘intractably neutral’ as to whether rape or lesser crime – Post-offence circumstantial evidence – Inference from totality of the evidence – Appeal dismissed – R v Ciantar  VSCA 263; (2006) 16 VR 26; R v Hillier  HCA 13; (2007) 228 CLR 618; Brooks v The Queen  VSCA 197 applied.
CRIMINAL LAW – Appeal against sentence – Lengthy and largely unexplained delay – Whether sentencing judge failed adequately to take significance of delay into account –Appellant resentenced – R v Merrett  VSCA 1; (2007) 14 VR 392 applied.
EVIDENCE – criminal trial on the charge of murder – question put by Crown to witness objected to by Defence – whether evidence about emotional state of the accused relevant – whether opinion evidence admissible as lay opinion under s78 Evidence Act 1995 (NSW) – whether question should be excluded under s137
PRACTICE AND PROCEDURE – COSTS – follow the event – defendant successful – raised two grounds one of which unsuccessful – event was not altered – no unreasonable argument point – SUPPRESSION ORDER – jurisdiction available against Commonwealth officer – order refused on merits
The appellant’s solicitor submitted that the photograph should not have been admitted into evidence because the prejudicial effect of those photographs outweighed the probative value of them and, therefore, section 137 of the Evidence Act required Magistrate Mossop to refuse to admit the photographs into evidence. Again, I cannot understand the basis for the appellant’s solicitor’s argument. The photographs are clearly relevant. They show relevant evidence. They are clearly admissible. The prejudicial effect of them is obvious. Indeed, evidence presented by a prosecution in proceedings against an accused is prejudicial. It is evidence designed to bring about a conviction of an accused. The question is whether the evidence is unfairly prejudicial to the appellant. Clearly, it was not. Magistrate Mossop was entitled to admit the photographs into evidence.
CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission of inconsistent statements by appellant about stolen motor vehicle – relevance – where individuals named in relation to stolen motor vehicle also named in relation to occupation of room where prohibited drug found
CRIMINAL LAW – appeal – conviction for offence of supplying prohibited drug – evidence – admission – warning to jury – s 137 Evidence Act 1995 – whether unfair prejudice to appellant of impugned evidence outweighed probative value of impugned evidence
EVIDENCE LAW – evidence of unfired cartridges located at home of accused – unfired cartridges found whilst accused in hospital – unfired cartridges of same calibre as ammunition found at scene – majority of unfired cartridges of same make as ammunition found at scene – whether evidence relevant – whether probative value of evidence outweighed by danger of unfair prejudice – evidence to be admitted
CRIMINAL LAW — Appeal against conviction — Two counts of blackmail and five counts of stalking — Whether history of prior convictions wrongly admitted — Whether trial judge erred in directing the jury how to use the prior criminal history — Whether post offence conduct wrongly admitted — Appeal dismissed
CRIMINAL LAW — Sentence — Total effective sentence of 8 years 9 months’ imprisonment — Non-parole period of 5 years and 6 months — Whether sentence imposed was manifestly excessive — Appeal dismissed
FRENCH CJ: Thank you, Mr Dhanji. We need not trouble you, Mr Pickering.
The applicant seeks special leave to appeal against a decision of the Court of Criminal Appeal of New South Wales dismissing his appeal against a conviction for murder. The applicant, who admitted the killing, raised at trial the defence of substantial impairment pursuant to s 23A of the Crimes Act 1900 (NSW) which authorises a jury in such a case to return a verdict of guilty of manslaughter rather than murder. Evidence of a prior conviction for manslaughter arising out of the killing of his father, in which s 23A had been successfully invoked, was admitted at the applicant’s trial through a treating psychiatrist. It was admitted as being relevant to the applicant’s history of schizophrenia and without formal objection from defence counsel.
Special leave is sought on the question of the admissibility of the prior offence, having regard to its relevance to the issue of substantial impairment under s 23A of the Crimes Act and to its prejudicial effect for the purposes of s 137 of the Evidence Act 1995 (NSW). The question whether there was a substantial impairment for the purposes of s 23A of the Crimes Act was a live question. The admission of the evidence of the prior offence was subject to evaluative considerations. The evidence was, on its face, relevant to the existence of the impairment. While the question of whether it should have been admitted may be debated, the application is, in our view, not attended with sufficient prospects of success to warrant the grant of special leave. The application of the proviso, which is also raised, having been decided on a hypothetical basis, does not provide a ground for the grant of special leave. Special leave will be refused.
CRIMINAL LAW – EVIDENCE – application to exclude evidence – whether evidence should be excluded under s 138 Evidence Act 2011 (ACT) – whether evidence obtained improperly or in consequence of impropriety – conduct did not go beyond providing accused with opportunity to act as he did – application to exclude evidence refused
DEFENCE – Convictions relating to receipt of rental and other allowances – whether Judge Advocate erred in direction to panel about whether appellant and his wife “normally lived together” for purposes of relevant Defence Determination – whether verdicts entered against appellant inconsistent with other verdicts of acquittal – whether Judge Advocate erred by failing to hold that certain email evidence should have been excluded – whether Judge Advocate erred in rejecting proposed tender of Defence Force Pay and Conditions Manual – whether Judge Advocate erred in failing to hold that appellant was entitled to trial by jury – whether Judge Advocate erred in directing that panel should reach determination on each charge by majority vote.
APPEAL – criminal – Director’s right of appeal against ruling on admissibility of evidence – whether exclusion of evidence substantially weakened prosecution case – how appellate court to determine whether ruling substantially weakens prosecution case – whether permissible to consider how evidence strengthens probative value of other evidence s 5F(3A) – Criminal Appeal Act 1912 (NSW)
EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether permissible for court to consider credibility and reliability of evidence in determining probative value – where restrictive approach previously adopted by same court in R v Shamouil  NSWCCA 112 – restrictive approach rejected by other intermediate appellate court in Dupas v The Queen  VSCA 328 – whether material difference between approaches
EVIDENCE – exclusion of evidence in criminal proceedings where risk of unfair prejudice outweighs probative value – s 137 Evidence Act 1995 (NSW) – whether failure to identify particular unfair prejudice – failure to consider how proper direction could overcome risk of unfair prejudice – whether trial judge erred in excluding evidence
EVIDENCE – criminal proceedings – respondent charged with sexual offences – evidence of telephone conversations between complainant and respondent nine years after alleged incident – transcripts included responses to allegations – whether vagueness of allegations created risk of unfair prejudice – whether danger that jury would use evidence for impermissible tendency inference – whether risk could be overcome by proper direction – s 137 Evidence Act 1995 (NSW)
EVIDENCE – criminal proceedings – discretion to exclude evidence that would be unfair to defendant – transcript of telephone conversations in which accused responded to allegations of sexual offences made by complainant – whether unfair to admit evidence requiring accused to explain to jury – whether infringement of right to silence – s 90 Evidence Act 1995 (NSW)
STATUTORY INTERPRETATION – construction of statute – precedent – resolving conflicting authorities – whether Court of Criminal Appeal entitled to follow its own earlier authority – where intermediate appellate court in another Australian jurisdiction found that authority plainly wrong – whether Court of Criminal Appeal required to find later authority plainly wrong – course conducive to orderly administration of justice – where courts interpreting uniform state legislation not national in operation – uniform Evidence Acts
CRIMINAL LAW – environmental offences – s 118A(2) – Expert witness code – admissibility of expert reports – chain of possession – assumptions – construction of Final Determination of Scientific Committee – beyond reasonable doubt – reasonable certainty – s 194(1)(d) – foreseeability of harm
CRIMINAL LAW – Murder – Appellant stabbed victim to death after fighting with victim’s friends – Defence that stabbing was unintentional – Self-defence not relied on – Whether obligation to put any alternate defence of self-defence – Whether trial judge erred in failing to leave self-defence, defensive homicide and manslaughter self-defence to the jury – No self-defence direction required – No evidence to found a claim of self-defence – Pemble v The Queen  HCA 20; (1971) 124 CLR 107 discussed – Crimes Act 1958.
CRIMINAL LAW – Post offence conduct – Consciousness of guilt – Appellant fled the scene of the murder, lied to emergency services and planned to obtain a false passport – Whether evidence of post-offence conduct should have been left to the jury – Trial judge properly allowed the evidence to be led – All items of post-offence conduct demonstrated a consciousness of guilt – R v Ciantar  VSCA 263; (2006) 16 VR 26 discussed.
CRIMINAL LAW – Juries – Reasonable apprehension of bias – Trial judge notified by a juror that the juror knew a key witness – Application to discharge the juror refused – Whether trial judge erred in failing to discharge the jury or the single juror – R v Goodall  VSCA 63; Chung v Rechichi (2005) 20 VR 221 considered – No error in exercise of discretion not to discharge the individual juror or the jury – No high degree of need for discharge – Section 43 of the Juries Act 2000.
CRIMINAL LAW – Appeal against sentence – Manifest excess – Pressing need for general deterrence in respect of violent knife attacks by youthful offenders – Sentence not manifestly excessive – Appeal dismissed.
CRIMINAL LAW – EVIDENCE – where applicant pleaded guilty to dealing with proceeds of crime and related offences – where facts asserted by the Crown on sentence were disputed – where Crown sought to prove disputed facts by relying upon representations of an unavailable co-offender pursuant to s. 65(2)(b) and s. 65(2)(d) of the Evidence Act – where sentencing judge admitted the representations – whether sentencing judge erred in concluding that the representations were made in circumstances that made it unlikely that they were a fabrication, or that made it likely that they were reliable – whether representations should have been excluded – whether open to the sentencing judge to conclude that he was satisfied beyond reasonable doubt of the disputed facts – no error in the decision of the sentencing judge to admit the representations – no error in the sentencing judge’s conclusion that he was satisfied, o n the basis of the representations, of the disputed facts beyond reasonable doubt
SENTENCE – parity principles – whether applicant had a justifiable sense of grievance in light of sentence imposed upon a co-offender for a similar offence – where sentencing judge properly considered principles of totality – where the applicant charged with offences over and above those with which the co-offender had been charged – where the overall criminality of the applicant was substantially in excess of that of the co-offender – no error demonstrated – no justifiable sense of grievance made out – appeal dismissed
Evidence of intent – presumption of continuance – Criminal Appeal Act 1912, s5F
EVIDENCE – admissibility – probative value – unfair prejudice – whether reliability or weight relevant to determination of probative value – potential contamination of evidence – R v Shamouil and Dupas v The Queen considered – insufficient evidence of contamination – no ground to believe effective cross-examination not possible – evidence admissible
CRIMINAL LAW – particular offences – offences against peace and public order – affray, riot, unlawful assembly and like offences – riot – evidence of incidents in disturbance beyond when accuseds’ involvement can be established – evidence relevant to common purpose – sufficient temporal connection – probative value not outweighed by unfair prejudice
EVIDENCE – admissibility – hearsay evidence – exceptions – admissions made with authority – furtherance of common purpose – common purpose to hold protest was sufficiently demonstrated
EVIDENCE – admissibility – risk of unfair prejudice – statements made through allegedly incompetent interpreter – insufficient evidence that interpreter was not accurately translating what she conveyed – evidence admissible
CRIMINAL LAW – particular offences – offences against peace and public order – affray, riot, unlawful assembly and like offences – riot – evidence of incidents in disturbance beyond when accuseds’ involvement can be established – relevance of evidence questionable – evidence unfairly prejudicial
PRACTICE AND PROCEDURE – injunction sought to stay inspection of documents seized under search warrant – applicant claimed irremediable prejudice – assessment of strength of case on appeal – balance of convenience
PRACTICE AND PROCEDURE – inherent jurisdiction of the Court – application for stay of disciplinary proceedings pending possible criminal proceedings – whether jurisdiction ousted by s 9 of Administrative Decisions (Judicial Review) Act 1977 (Cth) – public interest in disciplinary proceedings – any unfair prejudice capable of being protected otherwise – summons dismissed
EVIDENCE – Competence – witness not competent to give sworn evidence – whether witness competent to give unsworn evidence – what court must tell witness – whether s 13(5) Evidence Act 2011 (ACT) requires that witness understand – whether court may inquire into witness’s understanding – witness’s lack of understanding no basis for finding witness incompetent to give unsworn evidence.
APPEAL – Application for leave to appeal against interlocutory decision – trial judge erred in finding complainant incompetent to give unsworn evidence – appeal allowed – admissibility of complainant’s evidence remitted to trial judge.
CRIMINAL LAW – “coincidence evidence” – effect of s 98 and s 101 Evidence Act – exclusion of evidence – effect of s 137 Evidence Act
EVIDENCE – indecent assault of person under the age of 16 – context evidence to assist in evaluation of complainant’s evidence of alleged offences – previous conduct of the appellant of a sexual nature involving the complainant – requirements for use as propensity evidence not satisfied – appropriate directions to the jury
CRIMINAL LAW – Evidence – initial police statement silent as to events subsequently admitted – whether admissible – credit – consciousness of guilt – covert recording – conversations in cells – undercover police operatives – purpose of evidence – animus – admissions of circumstances – statements towards co-accused – statements concerning witness – statements not confessional – low probative value – highly prejudicial – elicited in part by improper conduct – offers to assist in suborning witness – Evidence Act 2008 ss 90, 137, 138.
CRIMINAL LAW – grant of stay – Australian Crime Commission (ACC) examination transcripts disseminated to Commonwealth Director of Public Prosecutions (CDPP) – scope of s 25A of the Australian Crime Commission Act 2002 (Cth) – whether dissemination might prejudice a fair trial.
CRIMINAL LAW – grant of stay – ACC examination transcripts disseminated to CDPP – whether dissemination of transcripts resulted in a fundamental defect in the trial process – exercise of discretion – whether a permanent stay justified.
CRIMINAL LAW – grant of stay – ACC examination transcripts disseminated to CDPP – whether dissemination resulted in a fundamental defect in the trial process – inference as to use of transcripts by CDPP – whether material justified inference.
CRIMINAL LAW – conviction appeal – murder – known drug dealer shot in his home – Crown case put on basis of extended joint criminal enterprise and constructive murder – essential part of Crown case that appellants were armed when arrived at deceased’s home – Crown case based on circumstantial evidence – whether verdict unreasonable and not able to be supported having regard to the evidence – detailed examination of nature and effect of evidence in Crown case – implicit rejection of evidence of appellants – whether correct direction given to jury in respect of felony murder, i.e. that the act causing death had to be voluntary – whether manslaughter by unlawful and dangerous act should have been left for the jury’s consideration – whether trial judge erred by directing the jury that they could engage in consciousness of guilt reasoning – EVIDENCE – whether evidence relied on by Crown to establish consciousness of guilt was admissible – s 137 Evidence Act 1995 – was trial judge obliged to reject evidence pursuant to s 137 if no objection taken – Crown bound by way case put at trial – Crown not entitled to change case on appeal from that presented at trial – Guilty verdicts to be quashed and verdicts of acquittal entered.
CRIMINAL LAW – Appeal – Appeal against conviction – Convictions arising out of sexual abuse of appellant’s daughter – Admissibility of expert evidence as to the general behaviour of child victims of sexual abuse – Incidental evidence concerning common parental reactions – Relevance of evidence concerning counter-intuitive behaviour –Whether witness had ‘specialised knowledge’ for the purposes of ss 79 or 108C of the Evidence Act 2008 – Whether basis of opinion properly established – Whether probative value outweighed by danger of unfair prejudice – Evidence Act 2008 ss 55, 79, 135, 137, 108C – Criminal Procedure Act 2009 s 388 – Appeal dismissed.
EVIDENCE – admissibility – tendering evidence – res gestae – “context” evidence – whether admissible – relevance to issues at trial – whether direction should be given.