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
CRIMINAL LAW – evidence – judicial discretion to admit or exclude evidence – Evidence Act 1995; ss 135, 137 – prejudicial evidence – whether evidence unfairly prejudicial to accused
CRIMINAL LAW – Sexual offences – Sexual penetration of child ‘under his care, supervision or authority’ – Accused was previously Principal of victim’s school – Sexual acts occurred after accused had resigned as Principal – Whether victim remained under accused’s ‘care, supervision or authority’ – Whether evidence of former Principal–pupil relationship admissible – Whether temporal proximity relevant – Crimes Act 1958 (Vic) ss 48, 49.
CRIMINAL LAW – Appeal – Practice and procedure – Offence of having sexual intercourse without consent – Where matter referred to the Court of Criminal Appeal following an application under the Crimes (Appeal and Review) Act 2001 – Where referral made on single ground of Muldrock error – Where appellant sought to raise additional grounds – Whether appellant required an extension of time and leave of the Court in order to be able to rely upon such grounds – Where unnecessary to determine that question in light of error found in respect of the ground which was the subject of the referral
CRIMINAL LAW – Appeal – Muldrock error – Where sentencing judge engaged in two-stage process of sentencing – Error made out – Necessity to consider the remaining three grounds in determining whether some other sentence was warranted in law and should have been passed
CRIMINAL LAW – Appeal – Where legislation made provision for alternative bases on which jury could be satisfied of the appellant’s knowledge of lack of consent on the part of the victim – Where Crown submitted on sentence that a finding should be made that the appellant knew that the victim was not consenting to sexual intercourse – Where no contrary submission was made by counsel for the appellant on sentence – Whether sentencing judge had an obligation to consider the remaining alternatives
CRIMINAL LAW – Appeal – Where sentencing judge did not specifically refer to low risk of re-offending – Where specific reference to such risk in Pre-sentence report – Where sentencing judge obviously aware of report – Necessity to make allowance for the fact that reasons were delivered ex tempore immediately following sentence proceedings
CRIMINAL LAW – Appeal – Where error found – Where appellant sentenced to imprisonment for 7 years and 6 months with a non-parole period of 5 years – Whether some other sentence warranted in law – Nature of offending – Where appellant misrepresented to victim that he was able to assist her career ambitions – Where offending not planned – Where statements made by victim along with her demeanour clearly indicated a lack of consent – Where appellant forced intercourse in any event – No other sentence warranted
CRIMINAL LAW – EVIDENCE – voice identification evidence – admissibility – proposed evidence received on voir dire by way of statement – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused – how trial judge should properly approach this balancing exercise
EVIDENCE – Tendency evidence – Review of intermediate appellate court decisions – Principle to be applied to determine admissibility – Hoch v The Queen  HCA 50; (1988) 165 CLR 292; R v Papamitrou  VSCA 12; (2004) 7 VR 375; R v Ellis  NSWCCA 319; (2003) 58 NSWLR 700; W v The Queen  FCA 1648; (2001) 115 FCR 41; CGL v Director of Public Prosecutions (Vic)  VSCA 26; (2010) 24 VR 486; AE v The Queen  NSWCCA 52; PNJ v Director of Public Prosecutions (Vic)  NSWCCA 338; (2010) 27 VR 486; (2005) 156 A Crim R 308; NAM v The Queen  VSCA 95; GBF v The Queen  VSCA 135; R v Ford  NSWCCA 306; (2009) 273 ALR 286; JLS v The Queen (2010) 28 VR 328; Director of Public Prosecutions (Vic) v BCR  VSCA 229; PG v The Queen  VSCA 289; CW v The Queen  VSCA 288; KRI v The Queen  VSCA 127; (2011) 207 A Crim R 552; RHB v The Queen  VSCA 295; RJP v The Queen (2011) 215 A Crim R 315; RR v The Queen  VSCA 442; DR v The Queen  VSCA 440; CEG v The Queen  VSCA 55; Reeves v The Queen  VSCA 311; R v PWD  NSWCCA 209; (2010) 205 A Crim R 75; BSJ v The Queen  VSCA 93; (2012) 35 VR 475; Semaan v The Queen  VSCA 134; Murdoch v The Queen  VSCA 272; SLS v The Queen  VSCA 31R; CV v Director of Public Prosecutions (Vic)  VSCA 58; Doyle v The Queen  NSWCCA 4; Sokolowskyj v The Queen  NSWCCA 55; DAO v The Queen  NSWCCA 63; (2011) 81 NSWLR 568; RH v The Queen  NSWCCA 55, considered – Cross-admissibility of three complainants’ evidence – Evidence Act 2008 (Vic) s 97.
CRIMINAL LAW – Trial – Failure to object to evidence – Whether tendency evidence – Whether words ‘is not admissible’ in Evidence Act 2008 (Vic) s 97 should be construed as ‘is not admissible over objection’ – R v Reid  NSWCCA 258; Gonzales v The Queen  NSWCCA 321; (2007) 178 A Crim R 232; FDP v The Queen  NSWCCA 317; (2008) 74 NSWLR 645, considered – Deliberate decision for forensic reasons not to object – R v Radford (1993) 66 A Crim R 210; Shaw v The Queen (Unreported, Court of Criminal Appeal (NSW), Gleeson CJ, Dowd and Hidden JJ, 3 April 1996); R v Gay [ VR 577, followed – Waiver – R v Clarke  VSCA 294; (2005) 13 VR 75; R v McCosker  QCA 52;  2 Qd R 138, followed – Whether trial judge under duty to intervene.
CRIMINAL LAW – Trial – Directions to jury – Inadequate directions as to tendency reasoning – Identification of features of tendency evidence necessary – Explanation necessary as to why tendency evidence makes fact in issue more probable – RR v The Queen  VSCA 442; RJP v The Queen (2011) 215 A Crim R 315, considered – Inappropriate direction as to sexual interest in complainants as evidence of ‘state of mind’ – Appeal allowed – Retrial ordered.
EVIDENCE – Criminal Procedure Act 2009 (Vic) s 377(3) – Exception to hearsay rule – Whether fact asserted in previous representation must be subject of evidence by person who makes assertion – Complainant recants previous assertion – Evidence should therefore have been excluded.
CRIMINAL LAW – Conviction – Appeal – Whether verdicts unsafe or unsatisfactory – Verdict of acquittal entered on Charges 3 and 11.
CRIMINAL LAW – Appeal – Interlocutory appeal – Review of the trial judge’s refusal to certify with respect to interlocutory decision – Identification evidence – Applicant arraigned and pleaded not guilty to an indictment containing a charge of intentionally causing serious injury – Complainant identified the applicant from a photograph on Facebook – Whether probative value of identification evidence outweighed by the danger of unfair prejudice – Trial judge refused to exclude the identification evidence – Application was made for certification – Certification refused – Application to review certification decision refused – Interlocutory decision plainly correct – Whether reasons for granting leave ‘clearly outweigh any disruption to trial’ – Application for review – Criminal Procedure Act 2009 (Vic) ss 295 (2)–(3), 296, 297 (2).
CRIMINAL LAW – appeal against conviction – whether defence counsel implicitly relied upon s 137 Evidence Act at trial – whether trial judge obliged to consider application of s 137 in the absence of reliance on that section – whether leave required pursuant to r 4 Criminal Appeal Rules where objection to admission of evidence is taken on one basis at trial and on a different basis on appeal – leave under r 4 refused – whether trial judge failed to advise jury of limitations on use of the evidence and to properly direct jury on motive to lie
CRIMINAL LAW – Whether admission of evidence of appellant’s participation in a prior assault should have been excluded under s 137 of the Evidence Act 2008 (Vic) – Prior assault provided motive for and inextricably linked to offences charged – Appellant bound by rational forensic decision of counsel not to object to admission of evidence – Nudd v The Queen  HCA 9; (2006) 80 ALJR 614; Suresh v The Queen  HCA 23; (1998) 102 A Crim R 18; and James v The Queen  VSCA 55, followed – Appeal dismissed.
CRIMINAL LAW – Whether admission of evidence of appellant’s participation in a prior assault controverted the appellant’s acquittal for that assault – Fact of acquittal not placed in evidence – No manifest inconsistency between evidence adduced and the fact of the appellant’s acquittal – Whether trial judge erred in failing to direct the jury that it could not reach a conclusion that the appellant was guilty of the prior assault – Storey v The Queen  HCA 39; (1978) 140 CLR 364; R v Carroll (2002) 213 CLR 635; Gilham v The Queen (2012) 224 A Crim R 22; R v VN  VSCA 111; (2006) 15 VR 113; and Washer v Western Australia  HCA 48; (2007) 234 CLR 492, followed.
CRIMINAL LAW – Whether trial judge erred in failing to give an anti-propensity warning in relation to the evidence of appellant’s participation in the prior assault – No requirement to give an anti-propensity warning where there is minimal or non-existent risk of evidence being used for propensity reasoning – R v Georgiev  VSCA 18; (2001) 119 A Crim R 363; Conway v The Queen  FCA 461; (2000) 98 FCR 204; and FDP v The Queen  NSWCCA 317; (2008) 74 NSWLR 645, followed.
CRIMINAL LAW – Kidnapping – Whether directions to jury impermissibly expanded Crown case – Whether kidnapping is a continuing offence – Davis v The Queen  NSWCCA 392 and R v Vu  BCCA 112, followed – Leave to appeal refused.
CRIMINAL LAW – EVIDENCE – admissibility – proposed evidence received on voir dire by way of statement – whether evidence relevant – whether probative value of evidence is outweighed by the danger of unfair prejudice to the accused
CRIMINAL LAW – Admission – Evidence Act 2008 – Voice identification – Taped record of interview with police used for the purposes of voice comparison – Whether ‘admission’ for the purposes of s 90 of the Evidence Act 2008 – Whether a record of interview with police used for the purposes of voice comparison should have been excluded under s 137 of the Evidence Act 2008 – Whether any other power to exclude exists – Application for leave to appeal against conviction granted – Appeal dismissed.
EVIDENCE – Whether Ch 3 of the Evidence Act 2008 as to exclusion of admissible evidence is a ‘code’ – Existence of overarching common law discretion to exclude evidence the admission of which would be unfair to the accused – Whether common law discretion survives the Evidence Act 2008 – Effect of s 56 of the Evidence Act 2008 – Sections 90, 136, 137 and 138 considered – Whether s 464J of the Crimes Act 1958 has been impliedly repealed – McNeill v The Queen  FCAFC 80; (2008) 168 FCR 198, Meteyard v Love  NSWCA 444; (2005) 65 NSWLR 36 and Butcher v Lachlan Elder Realty  NSWCA 237; (2002) 55 NSWLR 558, not followed.