Category Archives: s. 137

Tasmania v Kefalianos [2014] TASSC 17 (2 April 2014)

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 [2000] NSWSC 208; (2000) 112 A Crim R 10, referred to.

Aust Dig Criminal Law [2752]

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 [2002] NSWCCA 509; (2002) 56 NSWLR 182; J v Tasmania (2011) 20 Tas R 425; R v Sood [2007] NSWCCA 214; Festa v R (2001) 208 CLR 593, referred to.

Aust Dig Criminal Law [2802]

The Queen v F J L [2014] VSCA 57 (28 March 2014)

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.

DPP v Hicks (Ruling No 3) [2014] VSC 106 (14 March 2014)

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.

KJS v R [2014] NSWCCA 27 (18 March 2014)

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.

R v Abdallah (No. 5) [2014] NSWSC 233 (13 March 2014)

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

Wade (a pseudonym) v The Queen [2014] VSCA 13 (14 February 2014)

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 [1995] HCA 30; (1995) 130 ALR 35; Libke v The Queen [2007] 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 [1986] 1 WLR 1480; R v Sitek [1988] 2 Qd R 284; Smith v The Queen [2001] HCA 50; (2006) 206 CLR 650 referred to.

Doyle v R; R v Doyle [2014] NSWCCA 4 (20 February 2014)

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.

R v Gittany (No 5) [2014] NSWSC 49 (11 February 2014)

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

LP v Regina [2013] NSWCCA 330 (23 December 2013)

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

R v Burton [2013] NSWCCA 335 (20 December 2013)

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

Pickett v The Queen [2013] NTCCA 19 (30 December 2013)

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

Smart v Tasmania [2013] TASCCA 15 (23 December 2013)

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 [2000] TASSC 153; (2000) 116 A Crim R 108; R v Pahuja (1987) 49 SASR 191; Ladd v R [2009] NTCCA 6; (2009) 27 NTLR 1, followed.

Aust Dig Criminal Law [3466]

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 [1993] HCA 63; (1993) 178 CLR 193, distinguished.

Woon v R [1964] HCA 23; (1964) 109 CLR 529, referred to.

Aust Dig Criminal Law [3470]

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 [1990] HCA 56; (1990) 170 CLR 573; M v R [1994] HCA 63; (1994) 181 CLR 487; Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657; Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521; Morris v R [1987] HCA 50; (1987) 163 CLR 454; Chidiac v R [1991] HCA 4; (1991) 171 CLR 432, referred to.

Aust Dig Criminal Law [3475]

The Queen v Butler (Rulings 1-10) [2013] VSC 688 (13 December 2013)

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 [1995] VicRp 34; [1995] 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.

Col v R [2013] NSWCCA 302 (3 December 2013)

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

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

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

Choudhary v The Queen [2013] VSCA 325 (21 November 2013)

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.

Bin Sulaeman v R [2013] NSWCCA 283 (14 November 2013)

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

GEDEON Gilbert v R [2013] NSWCCA 257 (12 November 2013)

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.

Matthews v SPI Electricity Pty Ltd & Ors (Ruling No 31) [2013] VSC 575 (30 October 2013)

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.

Potter v The Queen [2013] VSCA 291 (18 October 2013)

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 [2006] VSCA 263; (2006) 16 VR 26 applied – Evidence Act 2008 (Vic) ss 65(2), 137, 192.

Lee v New South Wales Crime Commission [2013] HCA 39 (9 October 2013)

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.

Fattal & Ors v The Queen [2013] VSCA 276 (2 October 2013)

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 [2007] NSWCCA 360; (2007) 179 A Crim R 470, R v Elomar [2010] 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.

Murdoch (a Pseudonym) v The Queen [2013] VSCA 272 (27 September 2013)

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.

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984 (27 September 2013)

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

Fulham Partners LLC v National Australia Bank Ltd [2013] NSWCA 296 (5 September 2013)

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

Legislation Cited:
Conveyancing Act 1919 (NSW), s 133B
Evidence Act 1995 (NSW), ss 59, 60, 135, 136, 137

R v Patricia Anne Gallagher [2013] NSWSC 1102 (19 August 2013)

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

R v Ryan [2013] NTSC 54 (23 August 2013)

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

Flora v The Queen [2013] VSCA 192 (31 July 2013)

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 [2006] VSCA 263; (2006) 16 VR 26; R v Hillier [2007] HCA 13; (2007) 228 CLR 618; Brooks v The Queen [2012] 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 [2007] VSCA 1; (2007) 14 VR 392 applied.

Levi v Australian Securities Investments Commission (No 2) [2013] NSWSC 932 (16 July 2013)

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

Kleehammer v Burnett [2013] ACTSC 131 (5 July 2013)

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.

Doolan v R [2013] NSWCCA 145 (3 July 2013)

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

R v Jacobs (No 6) [2013] NSWSC 947 (27 June 2013)

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

Cooper v The Queen [2013] VSCA 153 (21 June 2013)

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

Potts v The Queen [2013] HCATrans 141 (7 June 2013)

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.

Thank you.

R v Edwin (No. 3) [2013] ACTSC 102 (3 June 2013)

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

King v Chief of Navy [2013] ADFDAT 3 (28 May 2013)

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.

R v XY [2013] NSWCCA 121 (22 May 2013)

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 [2006] NSWCCA 112 – restrictive approach rejected by other intermediate appellate court in Dupas v The Queen [2012] 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

Kyluk Pty Ltd v Chief Executive Office of Environment and Heritage [2013] NSWCCA 114 (20 May 2013)

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

Zhu v The Queen [2013] VSCA 102 (3 May 2013)

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 [1971] 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 [2006] 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 [2007] 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.