CRIMINAL LAW – Conviction – Conspiracy to possess 4.4 tonnes or more than 15 million tablets containing MDMA (ecstasy) imported from Europe in 2007 but seized before the conspirators could take possession of them – Wholesale value of tablets about $122 million – Applicant’s role to facilitate removal of container within which drugs concealed from docks – Interception by AFP of telephone conversation between co-conspirator and third party – Conversation not in furtherance of conspiracy and accordingly not admissible against applicant – Applicant sought to rely upon isolated passages in intercepted communication as supposedly exculpatory – Issue as to whether statements made were in fact exculpatory – Ruling by trial judge that evidence hearsay and inadmissible – Whether trial judge erred – No error established.
CRIMINAL LAW – Conviction – Trial judge permitted Crown to adduce evidence concerning applicant’s daily participation in legal proceedings throughout major part of the alleged conspiracy period – Whether evidence should have been excluded under s 137 of Evidence Act 2008 – Probative value of evidence not outweighed by any unfair prejudice to applicant.
CRIMINAL LAW – Conviction – Whether misdirection as to elements of conspiracy – No error established.
CRIMINAL LAW – Sentence – Applicant sentenced to 19 years’ imprisonment with non-parole period of 15 years – Whether trial judge erred in failing to afford mitigatory weight to applicant’s admissions and contribution to efficient conduct of trial – Whether sentence manifestly excessive – Whether undue disparity between applicant’s sentence and sentence imposed upon co-accused – No error established.
CRIMINAL LAW – evidence – whether part of police statement should be excluded under s 137 Evidence Act 1995 (NSW) – threat to wife and children of police officer –whether probative value is outweighed by danger of unfair prejudice
CRIMINAL LAW – evidence – whether CCTV footage should be excluded under s 137 Evidence Act 1995 (NSW) – whether probative value is outweighed by danger of unfair prejudice
CRIMINAL LAW AND PROCEDURE – Particular Offences – offences against the person – crimes and offences against children – act of indecency on a person under the age of 16.
EVIDENCE – Tendency Evidence – whether the accused had a tendency to have a sexual attraction to young girls – whether the accused had a tendency to act on his sexual attraction to young girls – whether the accused had a tendency to rub his groin against young girls – whether the accused had a tendency to touch the sexual areas of young girls – whether the accused had a tendency to show young girls pornography – whether the accused had a tendency to groom young girls by talking about sexual activity or talking sexually to them – application to adduce tendency evidence allowed in part.
CRIMINAL LAW – unsolved missing persons investigation – suspected cold case murder – covert investigation using “scenario technique” – [REDACTED] – accused makes voluntary admissions – discretion to exclude admissions that are unfair – relevance of reliability of confessions – where parts of admission implausible and not supported by other evidence – whether police “elicited” admissions – whether accused spoke freely – where accused had not exercised his right to silence when approached by police – warrants authorising use of listening devices expired or invalid – evidence obtained unlawfully – officers sailing close to the wind – [REDACTED] – discretion to admit evidence unlawfully or improperly obtained – highly prejudicial material – discretion to exclude – whether prejudicial material severable – belated indication of application for trial by judge alone
EVIDENCE – Criminal Trial – Murder – Applications to exclude admissions made during course of VROIs and covertly recorded conversation with police – impropriety – whether desirability of admitting the evidence outweighs undesirability of admitting evidence improperly obtained – whether mere impropriety or illegality can provide basis for exclusion under unfairness discretion – Crimes Act 1958, ss 464, 464A, 464C – Evidence Act 2008 , ss 90, 137, 138, 139 – Em v The Queen  HCA 46; (2007) 232 CLR 67.
CRIMINAL LAW – murder – evidence – relationship evidence – whether particular issues in the relationship between the accused and the deceased should be rejected – evidence having probative value – no unfair prejudice
CRIMINAL LAW AND PROCEDURE – Particular Offences – offences against children – sexual intercourse with a child under the age of 10 – found guilty at trial.
APPEAL – Appeal from the ACT Supreme Court – whether verdicts were unsafe and unsatisfactory – whether trial miscarried because of the failure of counsel to adduce “good character” evidence – whether the trial miscarried because of the admission of “bad character” evidence contained in the complainant’s record of interview with police – held it was open to the jury to conclude that the accused was guilty of the two offences with which he was charged beyond reasonable doubt – held that verdicts were not unsafe and unsatisfactory – held that trial miscarried because of the failure of counsel to adduce available “good character” evidence and the admission of “bad character” evidence – appeal upheld and matter remitted for retrial.
CRIMINAL LAW – Particular Offences – offences against children – indecent assault on a person under the age of 16 years
EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – tendency evidence – whether the Evidence Act 2011 (ACT) applies to an application to lead tendency evidence in relation to offences allegedly committed prior to the commencement of that Act
CRIMINAL LAW – evidence – expert evidence – footprints in blood – comparisons with impressions of feet of witnesses including accused – whether area of specialised knowledge – blood drying times – whether police officer had specialised knowledge
EVIDENCE – EXPERT EVIDENCE – MARTIAL ARTS TRAINING – whether the accused proficient in martial arts techniques – whether expert evidence capable of establishing such proficiency – whether the evidence in the Crown case admissible as expert opinion evidence on a state of mind issue on a charge of murder – namely as proof of an intention to cause grievous bodily harm – held that the opinion evidence in question could not be relevant to a fact in issue in the proceedings – the evidence even if admissible should be excluded under s 135 or s 137 Evidence Act 1995
CRIMINAL LAW – evidence – where police unsuccessful in serving a subpoena on a witness – where Crown sought to tender passages of the statement of the witness in her absence – no prior notice given to accused until the day on which the application was made – where counsel for the accused had instructions to cross-examine the witness as to credit – where opportunity to cross-examine would be lost – evidence excluded
CRIMINAL LAW – evidence – context evidence – where Crown alleged manslaughter by gross criminal negligence – where Crown sought to rely upon other evidence of neglect by the accused towards the deceased – whether evidence admissible
CRIMINAL LAW – Appeal – Interlocutory appeal – Stay – Fair trial – Trial of alleged sexual offences – Delay – Alleged offending occurred nearly 40 years ago – Child complainant – Original complaint to police lost – Whether irremediable prejudice – Whether forensic disadvantage warning sufficient – No error in refusal of stay – Leave to appeal refused.
EVIDENCE – Admissibility – Expert Evidence – DNA evidence – Likelihood ratios – Whether fully-continuous probabilistic statistical methodology for the evaluation of DNA evidence constitutes a new and discrete field of knowledge – Whether admission of DNA evidence would give rise to unfair prejudice to the accused due to its complexity – Evidence Act 2008 (Vic), ss 79(1), s 137.
CRIMINAL LAW – stated case – Criminal Appeal Act 1912 (NSW), s 5B – whether stated case raises a question of law
CRIMINAL LAW – Appeal in the District Court against conviction in the Local Court by way of rehearing – Fresh evidence – Crimes (Appeal and Review Act) 2001 (NSW), s 18(2) – whether adducing fresh evidence in the “interests of judgment” – post-conviction admission made to Corrective Services Officer during interview to assess applicant’s suitability for intensive correction order – interview conducted pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW) – whether applicant denied common law right of silence
WORDS AND PHRASES – “interests of justice”
CRIMINAL LAW – application for inquiry into conviction under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) – photo identification evidence – no special facts or special circumstances raised – identification of seized items – no sense of unease or disquiet required raised – application dismissed
CRIMINAL LAW – application under Part 7 Crimes (Appeal and Review) Act 2001 for inquiry into conviction for sexual intercourse without consent – no doubt or question as to the applicant’s guilt
CRIMINAL LAW – Conviction – Applicant convicted of multiple offences including aggravated burglary whilst co-offender armed with firearm – Whether necessary for trial judge to give anti-propensity warning in relation to weapon of similar description located at co-offender’s home – No exception taken to failure to give warning at trial – No substantial miscarriage of justice – Thompson and Wran v The Queen  HCA 21; (1968) 117 CLR 313 distinguished.
CRIMINAL LAW – Sentence – Applicant convicted on basis of joint criminal enterprise – Total effective sentence 14 years and 6 months with non-parole period of 11 years – Co-offender, whose involvement was relevantly indistinguishable, sentenced to 11 years with non-parole period of 7 years 6 months – Co-offender younger and fewer prior convictions – Whether justifiable sense of grievance based upon undue disparity between sentences – Undue disparity between respective non-parole periods – Leave to appeal against sentence granted – Applicant’s non-parole period reduced to 9 years 6 months.
CRIMINAL LAW – Appeal – Conviction – Aggravated burglary and armed robbery – Possession of firearms and implements said to have been used in crime – Whether evidence of possession of items admissible – Similarity of items to description given by victims – Whether investigators obliged to show items to victims before trial – Whether prosecutor obliged to ask witnesses at trial whether items were similar – Circumstantial evidence rendering it probable that items were used in crime – Whether probative value of evidence outweighed by prejudicial effect – Whether need of direction as to applicant’s participation in incriminating conversation – Whether verdicts unsafe and unsatisfactory – Leave refused.
CRIMINAL LAW – Appeal – Judge’s summing up – Duties of trial judge – Obligation to identify all evidence whether direct or circumstantial relevant to the issues – Jury Directions Act 2013 ss 17, 18
CRIMINAL LAW – application for extension of time to give notice of appeal against conviction and application for leave against sentence – where application for extension of time not opposed – where affidavit supporting extension of time unsatisfactory – discretionary power to extend time limit to be exercised having regard to the interests of justice in the case
CRIMINAL LAW – appeal against conviction – “context” evidence – where evidence admitted of poor relationship between applicant and complainant – where evidence not of prior sexual or other assaults against the complainant – whether trial judge erred in failing to give specific direction as to limited use to which evidence could be put – Evidence Act 1995 (NSW), ss 55, 97, 101, 135, 137
CRIMINAL LAW – appeal against conviction – where jury failed to reach unanimous decision on some charges – where trial judge gave majority verdict direction – where failure to examine juror on oath before giving direction – Jury Act 1977 (NSW), s 55F(2)(b)
CRIMINAL LAW – application for leave to appeal against sentence – whether fact that sexual assault occurred in home aggravating factor when applicant and complainant resided together at the relevant time – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(eb)
CRIMINAL LAW – where aggregate sentence to be reassessed – Court to re-exercise discretion to form its own judgment as to appropriate aggregate sentence – Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
1 Pursuant to certification of the trial judge under s 293(3)(a) of the Criminal Procedure Act 2009 (‘CPA’), the applicants seek leave to appeal an interlocutory decision made on 25 November 2014 in which his Honour refused to exclude certain ‘picture identification evidence’.
APPEAL – appeal against conviction – applicant convicted of attempted sexual intercourse without consent with a person under the age of 10 years – whether verdict unreasonable or insupportable having regard to evidence – Whitehorn v The Queen  HCA 42 – Douglass v The Queen  HCA 34 – complainant’s evidence given by video – recordings of interview with police – whether manner of giving evidence undermined the principles of fair trial – whether probative value of the evidence outweighed by prejudicial effect – Evidence Act 1995 (NSW), s 137
CRIMINAL LAW – appeal – admissibility of evidence – whether probative value of evidence outweighed by danger of unfair prejudice – credibility of witness
EVIDENCE – application by Crown to cross-examine unfavourable witnesses – advance ruling – Evidence Act 1995 (NSW), ss 38 and 192A – witnesses included persons named on indictment but not charged – whether appellable error in grant of leave to cross-examine – whether appellable error in judge inquiring, in presence of jury, whether witness aware of right to object to giving self-incriminating evidence
CRIMINAL LAW – EVIDENCE – expert evidence – whether opinion as to usual causes of fires in “meth labs” unfairly prejudicial – evidence allowed – hearsay evidence – evidence that gas burner “on” – expert who examined premises overseas – whether “unavailable to give evidence” – no notice given – no evidence of steps taken to secure attendance – unclear whether evidence based on personal observation – unclear whether evidence a conclusion – no evidence of basis of conclusion – danger of unfair prejudice – evidence rejected
CRIMINAL LAW – Importing marketable quantity of a border controlled drug (cocaine) – Whether evidence of false statements made to Customs officer during baggage examination should have been excluded pursuant to s 23V of the Crimes Act 1914 (Cth) – Whether implied admission in making false statements constituted ‘confession or admission’ for the purpose of that section – Whether appellant was being questioned ‘as a suspect’ – Raso v The Queen (1993) 68 A Crim R 495, applied – Whether evidence of false statements should have been excluded pursuant to ss 85, 90 or 137 of the Evidence Act 2008 – Appeal dismissed.
CRIMINAL LAW – Armed robbery and recklessly causing serious injury – Description of offenders by victim inconsistent with victim’s photo board identification of the applicant – Whether photo board identification ‘recognition’ of offender seen prior to the offence – Whether evidence of photo board identification should have been excluded pursuant to s 137 of the Evidence Act 2008 – Whether verdicts unsafe and unsatisfactory – Leave to appeal against conviction refused.
PRACTICE AND PROCEDURE – Overarching obligations – Duties of experts to court– Expert Code of Conduct – Duties of legal practitioners to court – Overarching obligation to disclose existence of documents – Overarching obligation not to mislead or deceive – Whether breach of overarching obligations by expert witness and by legal practitioners instructing that expert in preparation of report and giving evidence – Sections 16, 17, 21, 26 and 29 Civil Procedure Act 2010 (Vic).
LEGAL PRACTITIONERS – Overarching obligations – Duties of legal practitioners to court – Whether breach of overarching obligations by legal practitioners instructing an expert and leading evidence from that expert – Overarching obligation to disclose existence of documents – Overarching obligation not to mislead or deceive – Sections 16, 17, 21, 26 and 29 Civil Procedure Act 2010 (Vic).
EXPERT WITNESS – Overarching obligations – Duties of experts to court– Expert Code of Conduct – Whether breach of overarching obligations by expert witness when preparing report giving evidence – Overarching obligation not to mislead or deceive – Sections 16, 17, 21, 26 and 29 Civil Procedure Act 2010 (Vic).
CRIMINAL LAW – PRACTICE AND PROCEDURE – Application to exclude evidence – whether prejudicial effect outweighs probative value
CRIMINAL LAW – PRACTICE AND PROCEDURE – Application to vacate trial date – counsel availability
CRIMINAL LAW – Appeal – Interlocutory appeal – Application for permanent stay refused – Long delay, but not simply presumptive prejudice – Destruction of evidence – Loss of evidence – Greatly limited ability to adduce alibi evidence – Whether judge erred by confining evidence of complainants on voir dire – Attack upon findings made and inferential reasoning of judge below – Appeal allowed – Decision refusing stay set aside – Matter remitted for re-hearing and determination by another judge.
CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling by judge that evidence of complainants cross-admissible – Whether reasonable possibility of collusion or contamination – Whether judge wrongly approached matter by treating applicant as carrying burden of proof – Whether judge erred by making findings upon matters of disputed fact – Whether judge failed to address facts inexorably leading to conclusion that reasonable possibility of collusion or contamination could not be excluded – Appeal allowed – Ruling set aside – In lieu, ruling that evidence not cross-admissible – Question whether indictment should be severed remitted for re-hearing and determination by another judge – Questions whether evidence of other witnesses constituted tendency evidence, and, if it was, should nonetheless be excluded, likewise remitted.
CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that expert evidence admissible that conduct of a hypothetical man behaving in the same way that the complainants and others alleged that the applicant had behaved (including conduct which constituted the charged acts) was (highly) consistent with ‘grooming’ by sex offenders – Concession by Crown on appeal that evidence inadmissible – Concession rightly made – s 79 Evidence Act 2008 – Whether witness had relevant expertise – Whether evidence had any probative value – Circularity – Whether, in any event, evidence should have been excluded under s 135 Evidence Act – Whether evidence was about a matter upon which expert evidence was receivable – Whether evidence would be tendency evidence admissible under s 97(1) Evidence Act – Whether, if so, evidence should have been excluded under s 101 – Whether unacceptable risk that evidence would trespass into propensity evidence – Whether, if so, evidence should have been excluded under s 135 or s 137 Evidence Act – Whether evidence admissible under s 108C Evidence Act.
CRIMINAL LAW – Appeal – Interlocutory Appeal – Peremptory ruling that counsel for accused should not be permitted to cross-examine complainant on content of confidential communication – No reasons given – Note made by counsellor of statement attributed to complainant – Note contained in confidential communications earlier released for inspection by accused’s legal advisers – Later ruling by judge that counsel for accused not be permitted to cross-examine complainant upon the note at trial – ss 32C and 32D Evidence (Miscellaneous Provisions) Act 1958 – Whether peremptory refusal complied with statutory obligations imposed upon judge – Whether peremptory refusal and later ruling supportable – Appeal allowed – Ruling set aside – In lieu, ruling that accused have leave to cross-examine complainant on further hearing of stay application and in any later trial.
CRIMINAL LAW – Appeal – Interlocutory appeal – Ruling that prosecution might adduce evidence of accused’s pleas of guilty, in 2008, to sexual offences committed between 2003-2005 and of agreed summary of circumstances read to Magistrates’ Court in, ‘rebuttal’ if credibility of victims of those offences was challenged in cross-examination – Evidence only admissible if viva voce evidence of witnesses receivable as tendency evidence – Crown statement that evidence of some witnesses would not be relied upon at a trial – Whether any basis revealed for prosecution being permitted to split its case – Consideration of possible juridical bases upon which evidence might be admissible – Appeal allowed – Ruling set aside – In lieu, question whether evidence admissible remitted for re-hearing and determination by another judge.
CRIMINAL LAW – Two counts of conspiracy to contravene s 1041A of Corporations Act 2001 (Cth) – 33 counts of contravening s 1041A of Corporations Act – Joinder of counts in one indictment – Severance – Admissibility of previous dealings as context evidence – Whether previous dealings admissible as tendency evidence – Cross-admissibility of evidence as context or tendency evidence – Elements of offences.
PROCEDURE – pleadings – notice of motion – ex parte hearing – orders sought under Rule 13.4 of the Uniform Civil Procedure Rules 2005 – alternative orders sought for claim to be struck out and dismissed for want of prosecution – statement of claim not particularised in accordance with Rules – statement of claim struck out – aspects of the claim statute barred – malicious prosecution alleged – elements of malicious prosecution – cause of action untenable – proceedings dismissed – costs
EVIDENCE – Hearsay rule – Exceptions – Criminal proceedings – Maker of previous representation not available – Deceased complainant – Statement to police – Cross-examined at committal – Whether police statement admissible – Whether committal transcript admissible – Whether accused had ‘reasonable opportunity to cross-examine’ – Whether probative value outweighed by danger of unfair prejudice – Common law discretion to exclude – Whether judge erred in not excluding evidence as unfair to accused – Haddara v The Queen  VSCA 100 – Criminal Procedure Act 2009 s 295(3)(a) – Evidence Act 2008 ss 65(2)(b), 65(3), 137.
CRIMINAL LAW – evidence – where Crown sought to tender evidence of three telephone conversations immediately before closing its case – where evidence had been available for a considerable period beforehand – where Crown on notice of the relevant issues – evidence not previously disclosed to the accused – where counsel for accused had completed cross-examination of the Crown’s principal witness – whether procedural unfairness is capable of giving rise to unfair prejudice for the purposes of s. 137 of the Evidence Act – probative value outweighed by the danger of unfair prejudice arising from a series of circumstances – evidence rejected
EVIDENCE – relevance – probative value – danger of unfair prejudice
CRIMINAL LAW Evidence Accused charged with conspiracy to take part in share purchases contrary to s 1041A of Corporations Act 2001 (Cth) Daughter alleged co-conspirator Whether prior knowledge by accused of previous such purchases by daughter relevant Whether such evidence rendered admissible by evidence given by accused Evidence Act 2008 s 137.
EVIDENCE – accused indicted for conspiracy to murder – evidence of accused’s DNA found on cigarette butt in vehicle allegedly used by him in the course of the conspiracy – cigarette butt destroyed following scientific analysis – accused deprived of the opportunity to independently test the item – where other items located in the vicinity of the cigarette butt not seized and tested – whether evidence of DNA analysis should be excluded on the basis of unfair prejudice – whether, in the event of the evidence being admitted, the jury should be directed about the disadvantage to the accused as a consequence of the destruction of evidence
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