Category Archives: s. 137

SLS v The Queen [2014] VSCA 31 (6 March 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/31.html

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.

The Queen v Jacobson (Ruling No 2) [2014] VSC 368 (8 August 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/368.html

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.

Gillies v The State of New South Wales (No 2) [2014] NSWSC 1598 (13 November 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1598.html

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

Bray (A Pseudonym) v The Queen [2014] VSCA 276 (7 November 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/276.html

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 [2014] VSCA 100 – Criminal Procedure Act 2009 s 295(3)(a) – Evidence Act 2008 ss 65(2)(b), 65(3), 137.

R v Rice & ors (No 4) [2014] NSWSC 1525 (31 October 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1525.html

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

The Queen v Jacobson (Ruling No 5) [2014] VSC 554 (15 October 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/554.html

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.

Rice v R (No 1) [2014] NSWSC 1400 (14 October 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1400.html

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

Machhour v The Queen [2014] VSCA 225 (17 September 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/225.html

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.

Lau v R [2014] NSWCCA 179 (12 September 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/179.html

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.

Kyriazis v The Magistrates’ Court of Victoria at Heidelberg & Anor [2014] VSC 411 (1 September 2014)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/411.html

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.

R v MM [2014] NSWCCA 144 (30 July 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/144.html

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)

R v Smith (No.3) [2014] NSWSC 771 (3 June 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/771.html

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

Lydgate (a pseudonym) v The Queen [2014] VSCA 144 (1 July 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/144.html

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.

Rajendran v R [2014] NSWCCA 113 (24 June 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/113.html

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

Velkoski v The Queen [2014] VSCA 121 (18 June 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/121.html

EVIDENCE – Tendency evidence – Review of intermediate appellate court decisions – Principle to be applied to determine admissibility – Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292; R v Papamitrou [2004] VSCA 12; (2004) 7 VR 375; R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700; W v The Queen [2001] FCA 1648; (2001) 115 FCR 41; CGL v Director of Public Prosecutions (Vic) [2010] VSCA 26; (2010) 24 VR 486; AE v The Queen [2008] NSWCCA 52; PNJ v Director of Public Prosecutions (Vic) [2005] NSWCCA 338; (2010) 27 VR 486; (2005) 156 A Crim R 308; NAM v The Queen [2010] VSCA 95; GBF v The Queen [2010] VSCA 135; R v Ford [2009] NSWCCA 306; (2009) 273 ALR 286; JLS v The Queen (2010) 28 VR 328; Director of Public Prosecutions (Vic) v BCR [2010] VSCA 229; PG v The Queen [2010] VSCA 289; CW v The Queen [2010] VSCA 288; KRI v The Queen [2011] VSCA 127; (2011) 207 A Crim R 552; RHB v The Queen [2011] VSCA 295; RJP v The Queen (2011) 215 A Crim R 315; RR v The Queen [2011] VSCA 442; DR v The Queen [2011] VSCA 440; CEG v The Queen [2012] VSCA 55; Reeves v The Queen [2013] VSCA 311; R v PWD [2010] NSWCCA 209; (2010) 205 A Crim R 75; BSJ v The Queen [2012] VSCA 93; (2012) 35 VR 475; Semaan v The Queen [2013] VSCA 134; Murdoch v The Queen [2013] VSCA 272; SLS v The Queen [2014] VSCA 31R; CV v Director of Public Prosecutions (Vic) [2014] VSCA 58; Doyle v The Queen [2014] NSWCCA 4; Sokolowskyj v The Queen [2014] NSWCCA 55; DAO v The Queen [2011] NSWCCA 63; (2011) 81 NSWLR 568; RH v The Queen [2014] 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 [1999] NSWCCA 258; Gonzales v The Queen [2007] NSWCCA 321; (2007) 178 A Crim R 232; FDP v The Queen [2008] 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 [[1976] VR 577, followed – Waiver – R v Clarke [2005] VSCA 294; (2005) 13 VR 75; R v McCosker [2010] QCA 52; [2011] 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 [2011] 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.

Peterson (a Pseudonym) v The Queen [2014] VSCA 111 (6 June 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/111.html

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).

Poniris v R [2014] NSWCCA 100 (5 June 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/100.html

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

Ulutui v The Queen [2014] VSCA 110 (4 June 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/110.html

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 [2006] HCA 9; (2006) 80 ALJR 614; Suresh v The Queen [1998] HCA 23; (1998) 102 A Crim R 18; and James v The Queen [2013] 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 [1978] 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 [2006] VSCA 111; (2006) 15 VR 113; and Washer v Western Australia [2007] 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 [2001] VSCA 18; (2001) 119 A Crim R 363; Conway v The Queen [2000] FCA 461; (2000) 98 FCR 204; and FDP v The Queen [2008] 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 [2006] NSWCCA 392 and R v Vu [2011] BCCA 112, followed – Leave to appeal refused.

Haddara v The Queen [2014] VSCA 100 (27 May 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/100.html

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 [2008] FCAFC 80; (2008) 168 FCR 198, Meteyard v Love [2005] NSWCA 444; (2005) 65 NSWLR 36 and Butcher v Lachlan Elder Realty [2002] NSWCA 237; (2002) 55 NSWLR 558, not followed.

R v Bui [2014] ACTSC 64 (31 March 2014)

http://www.austlii.edu.au/au/cases/act/ACTSC/2014/64.html

EVIDENCE – application to exclude DNA evidence – judge alone trial – drug trafficking charges – whether evidence relevant – whether probative value outweighed by danger of unfair prejudice – where potential for contamination – virtually no risk of judge or magistrate giving evidence more weight than entitled – strength of circumstantial case found in examining all of evidence together

Criminal Code 2002 (ACT), s 603(7)

Evidence Act (ACT), ss 55(1), 56(1), 135, 137

R v Bryce (No 1) [2014] NSWSC 495 (28 April 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/495.html

EVIDENCE – statements made by deceased about previous assaults upon her – relationship evidence – hearsay – s 65(2)(b) of the Evidence Act – whether representations made “shortly after” asserted fact occurred.

EVIDENCE – photographs and observations of deceased’s injuries – whether probative value outweighed by prejudicial effect – Evidence Act s 137.

Miles v R [2014] NSWCCA 72 (9 May 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/72.html

CRIMINAL LAW – appeal against conviction – application for extension of time years after conviction entered – applicable principles – Criminal Appeal Act 1912 (NSW) s 6 – consideration of the prospects of success of the grounds of appeal – whether directions of the trial judge in relation to complaint violated the principle in Palmer v The Queen – whether evidence of flight should have been admitted at first instance – whether trial judge erred in his directions regarding evidence of flight – application of considerations analogous to the proviso

McDonald v The Queen [2014] VSCA 80 (1 May 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/80.html

CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Applications granted and appeals heard instanter and dismissed– Three charges of maintaining a sexual relationship with a child under 16 – Total effective sentence of 11 years and nine months’ imprisonment with a non-parole period of nine years – No error by trial judge in directing the jury that it could convict on the charges of maintaining a sexual relationship with a child under 16 – ‘Occasions’ were sufficiently particularised – No error by trial judge in ruling that evidence that applicant accessed child pornography was admissible to refute applicant’s statements in police interview that he was only interested in adult women – No error by the trial judge in admitting a video recording of a pretext conversation between the complainant and the applicant – Sentence not manifestly excessive – Appeal dismissed – Crimes Act 1958 ss 47A, 70(1).

Sokolowskyj v Regina [2014] NSWCCA 55 (15 April 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/55.html

CRIMINAL LAW – conviction appeal – assault with an act of indecency upon a person under the age of 10 – whether tendency evidence properly admitted at trial – evidence relevant and capable of proving a tendency – the tendency specified was at a high level of generality – purpose of evidence to rebut likely challenge to Crown case – tendency evidence lacked “significant probative value” – probative value of tendency evidence did not substantially outweigh its prejudicial effect – tendency evidence should have been rejected – conviction quashed.

Hothnyang v The Queen [2014] VSCA 64 (11 April 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/64.html

CRIMINAL LAW – Conviction – Murder – Evidence – Relevance – Admissibility – Connection with crime – Disposition of applicant – Drunken orgy extending over two days – Whether evidence of applicant’s drunken aggressive behaviour towards persons other than deceased on morning of second day of orgy, some hours before killing of deceased, admissible as evidence of part of one transaction of which killing formed part – O’Leary v The King [1946] HCA 44; (1946) 73 CLR 566, applied – Evidence Act 2008 , ss 135, 137.

JURY – Discharge – Whether judge erred in refusing to discharge jury after inadmissible evidence given in error – Whether evidence productive of substantial miscarriage of justice – Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427, applied; Baini v The Queen [2012] HCA 59; (2012) 246 CLR 469; Baini v The Queen (No 2) [2013] VSCA 157, referred to.

VERDICT – Whether unreasonable – Whether, in view of lies told by principal Crown witness and inconsistencies between evidence of witnesses, jury bound to have reasonable doubt as to identity of killer or her capacity to form murderous intent – Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, applied; The Queen v O’Connor [1980] HCA 17; (1980) 146 CLR 64, referred to; Cutter v R [1997] HCA 7; (1997) 143 ALR 498, distinguished.

Benson v The Queen [2014] VSCA 51 (28 March 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/51.html

Application for leave to appeal against conviction and sentence – One charge of rape – Applicant sentenced to total effective sentence of seven years imprisonment with a nonparole period of five years – Trial judge erred in admitting evidence of the Applicant’s past violent conduct as relationship evidence – Substantial miscarriage of justice – Application granted – Appeal allowed – New trial ordered – Baini v The Queen (2012) 246 CLR 469 – s 276(1)(b) of the Criminal Procedure Act 2009 (Vic).

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

http://www.austlii.edu.au/au/cases/tas/TASSC/2014/17.html

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)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/57.html

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)

http://www.austlii.edu.au/au/cases/vic/VSC/2014/106.html

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)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/27.html

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)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/233.html

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)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/13.html

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.