Category Archives: s. 177

Commissioner of Police v Pecover [2014] NSWSC 1427 (20 October 2014)

CRIMINAL LAW – application by police to have computer drives that were found to contain child pornography forfeited to the Crown – onus of proof on person claiming lawful entitlement to possession

APPEAL – Magistrate misapprehended
s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – failure to give any reasons for decision – took account of matters of technical nature that were not “common knowledge” – Magistrate’s orders set aside and remitted to Local Court

DPP v Streeting [2013] NSWSC 789 (28 June 2013)

ADMINISTRATIVE LAW – appeal from Local Court – application for prerogative relief – prosecution fails to serve notice pursuant to s 177 Evidence Act 1995 – refusal of adjournment by magistrate – whether error of law – whether failure to consider relevant matters – whether exceptional circumstances or serious injustice demonstrated to justify appellate interference.

Badans v R [2012] NSWCCA 97 (17 May 2012)

CRIMINAL LAW – appeal – conviction – whether misdirections in summing up to jury – evidence – whether verdict unreasonable or unsupportable on evidence – Criminal Appeal Act 1912, s 5(1)(a) and s 5(1)(b)
CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – standard non-parole period – consideration of Muldrock – significance of appellant’s intellectual disability – Criminal Appeal Act 1912, s 5D(1)
CRIMINAL LAW – appeal – procedure – sentencing hearing – order Crown pay costs incurred by appellant in calling expert under s 177(7) of Evidence Act – no direction in accordance with s 4(2)(a) that law of evidence applied – costs order set aside

R v Madigan [2005] NSWCCA 170 (9 June 2005)

[2005] NSWCCA 170

Criminal Law – appeal against conviction – aggravated break and enter and commit serious indictable offence – plea of not guilty – whether trial judge erred in admitting surveillance log book into evidence – whether trial judge erred by admitting voice identification evidence – admission of expert evidence.

Evidence Act 1995 – s 55, 56(1), 79,135, 137, 165(1)(b), 165(2),177

R v Sood (Ruling No 3) [2006] NSWSC 762 (15 September 2006)

[2006] NSWSC 762

criminal trial
unlawful administration and supply of drug to procure miscarriage
interlocutory rulings on questions of evidence
whether Crown ought be permitted during opening to provide contentions of law in writing
construction of “unlawfully” in Crimes Act 1990 s83
test of proportionality objective
manslaughter by criminal negligence
duty of care to child once born alive
unfavourable witnesses
evidence relevant to credibility of accused and to asserted facts
Crown permitted to cross examine prosecution witnesses
evidence of medical opinion as to whether baby born alive
whether expertise established
use of medical report prepared for Health Care Complaints Commission
whether evidence from report admissible
evidence of medical practitioner admissible
whether disclosure of report unlawful
consciousness of guilt
conduct of counsel in trial not available to be used to found inference that instructions to counsel reflected a consciousness of guilt
discharge of one juror on medical evidence
order that trial proceed with jury of eleven

Crimes Act 1900 s83
Criminal Code Act 1995 (Cth)
Evidence Act 1995  s38, s56, s59, s60, s66, s79, s81, s135, s137, s138, s177, s184, s192

R v Hien Puoc Tang [2006] NSWCCA 167 (24 May 2006)

[2006] NSWCCA 167

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude Evidence – whether opinion evidence of identity based on facial mapping and body mapping admissible.

CRIMINAL LAW – Evidence – Expert opinion – whether facial mapping and body mapping constitute areas of “specialised knowledge” – meaning of “specialised knowledge” – meaning of “knowledge” – s 79  Evidence Act 1995  (NSW).

CRIMINAL LAW – Evidence – Judicial discretion to admit or exclude Evidence – whether curriculum vitae of witness correctly admitted.

CRIMINAL LAW – Practice and Procedure – Whether the use of the phrase “ultimate issue” in directions constituted a miscarriage of justice.

WORDS AND PHRASES – “specialised knowledge”, “knowledge”.

Evidence Act 1995  (NSW): s 79, 177, 135, 137