Category Archives: s. 137

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

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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)

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.