Category Archives: s. 043

Power v The Queen [2014] VSCA 146 (4 July 2014)

CRIMINAL LAW – Whether co-offender’s bare plea of guilty admissible – Whether direction required as to use of the bare plea of guilty – Andelman v The Queen [2013] VSCA 25; Bou-Elias v The Queen (No 1) [2012] VSCA 61, considered.

EVIDENCE – Unfavourable witness – Evidence Act 2008 (Vic) s 38 – Leave to cross-examine generally – Evidence affecting witness credibility – Prior inconsistent statements – Evidence of facts asserted – Evidence Act 2008 (Vic) ss 43, 60 – Adam v The Queen (2001) 207 CLR 98; R v Le [2002] NSWCCA 186; (2002) 54 NSWLR 474, considered.

CRIMINAL LAW – Evidence – Plea of guilty by co-offender and prosecutor’s summary of facts – Whether a course of conduct on plea constitutes an implied representation as to facts in summary – Whether prior inconsistent statement – Evidence of accused’s guilt – Direction not required – Forensic decision not to seek direction – No substantial miscarriage of justice.

EVIDENCE – Whether evidence of co-offender’s plea of guilty an ‘admission’ – Evidence Act 2008 (Vic) ss 60(3), 83.

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

Denlay v Commissioner of Taxation [2011] FCA 1092 (9 June 2011)

EVIDENCE – voir dire – illegal or improperly obtained evidence – where witness sought to be cross-examined on material that was derived from information obtained by an allegedly unlawful act – whether this derived evidence was admissible – where respondent not involved in impropriety – where taxation officers able refer to broad information base when making assessments or where assessments deemed lawful in Full Court proceeding – application of Pearce v Button discretion to admit evidence – cross-examination allowed to continue

Evidence Act 1995 (Cth) ss 26, 43, 138

Kingston v Australian Capital Territory [2011] ACTSC 165 (7 October 2011)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – nature of appeal.

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – magistrate using affidavit not read – error in doing so – appeal upheld.

Evidence Act 1995 (Cth), ss 43, 128, 103

Director of Public Prosecutions v Finnegan [2011] TASCCA 3 (21 April 2011)

Criminal Law – Evidence – Credibility – Prior inconsistent statements – Generally – Application by Crown to cross-examine own witness – Factors relevant to exercise of discretion whether to permit cross-examination – One purpose of application to satisfy requirements to enable Crown to tender prior inconsistent statement as evidence of truth of contents.
Evidence Act 2001 (Tas), ss38, 43, 192.
R v Adam (2001) 207 CLR 96, applied.
Tasmania v Mayne [2009] TASSC 82; Tasmania v S [2004] TASSC 84; Houston and Stanhope v R (1982) 8 A Crim R 392, referred to.
Aust Dig Criminal Law [2872]

JCS v R; JMS v R; R v JCS; R v JMS [2006] NSWCCA 221 (26 July 2006)

[2006] NSWCCA 221


unlawful imprisonment

appeal against conviction

joint and several offences

validity of indictment for unlawful imprisonment

common law offence

inconsistencies in complainant’s evidence

whether open to the jury to accept complainant’s evidence

whether necessary to be against the will of the complainant

meaning of constraining and restraining

directions on element of intent

relevance of complainant’s state of mind

whether direction on drawing of inferences necessary

whether directions correctly addressed actions of an individual not part of the joint criminal enterprise

parental discipline

whether evidence available on each separate count was adequately distinguished from evidence not available


whether document, which the complainant had not adopted, ought to have been admitted

re-examination of the complainant


unlawful imprisonment

Crown appeal against sentence

objective gravity

general deterrence

unusual offence

whether mitigating factors were ‘double-counted’

special circumstances

parental difficulties as mitigating factors

complainant’s age and condition as aggravating factors

impact of periodic detention

discretion not to intervene

Aslett v R [2006] NSWCCA 49 (24 March 2006)

[2006] NSWCCA 49

Criminal law

breaking entering and committing the serious indictable offence of robbery in circumstances of special aggravation

sexual intercourse without consent in company with deprivation of liberty

inciting complainant of sixteen years of age to commit an act of indecency

Criminal law

evidence of accomplice

whether direction to jury adequate

whether trial judge obliged to direct jury that evidence uncorroborated

Criminal law

Crown opening

in opening to jury Crown Prosecutor mistakenly misstated the effect of witness’ evidence

whether trial judge ought to have discharged jury

whether miscarriage of justice

Criminal law

whether evidence identifying appellant wrongly admitted

Criminal law

obligation of counsel objecting to admission of evidence to identify legal basis of objection and evidence relevant to that basis

Criminal law

whether prior inconsistent statements of Crown witness wrongly admitted

Criminal law

irrelevant evidence wrongly admitted

whether proviso should apply

Criminal law

remarks of Crown Prosecutor

whether miscarriage of justice

Criminal law

whether verdicts unreasonable and inconsistent with evidence

Criminal law


whether sentencing judge erred in treating elements of offences as aggravating criminality

whether judge erred in finding circumstances aggravating criminality

Criminal law


whether sentences increased beyond what was proportionate to criminality to extend period of protection of society from offender’s recidivism

Criminal law


whether sentences manifestly excessive

R v Soma [2003] HCA 13; 212 CLR 299; 196 ALR 421; 77 ALJR 849 (13 March 2003)

[2003] HCA 13

Criminal law – Evidence – Admissibility – Prior inconsistent statement of accused – Whether prosecution can adduce evidence of prior inconsistent statement in cross-examination of accused – Whether sound recording of applicant’s interview wrongly admitted into evidence.

Criminal law – Evidence – Complaints – Failure to object to cross-examination – Whether trial judge required to rule where failure to object.

Criminal law – Procedure – Prosecution case closed – Whether tender of prior inconsistent statement of accused evidence in rebuttal – Prosecution not permitted to split its case.

Evidence – Criminal trial – Prior inconsistent statement of accused – Whether sound recording wrongly admitted into evidence in rebuttal of prosecution case – Whether tender of sound recording impermissible attempt to split prosecution case – Complaints – Failure to object to cross-examination – Whether trial judge required to rule despite failure to object.

Evidence Act 1977 (Q), ss 18, 101, 130.

Melbourne v R [1999] HCA 32; 198 CLR 1; 164 ALR 465; 73 ALJR 1097 (5 August 1999)

[1999] HCA 32

Criminal law – Evidence – Character evidence – Evidence of accused’s good character adduced – Relevance of character evidence to propensity to commit offence charged – Relevance of character evidence to accused’s credibility – Directions to jury – Whether directions about use of character evidence mandatory.

Tasmania v Mayne [2009] TASSC 82 (24 August 2009)

[2009] TASSC 82

Criminal Law – Evidence – Judicial discretion to admit or exclude evidence – Prejudicial evidence – Particular cases – Other matters – Unfavourable witnesses – Prior inconsistent statements tendered – Statements evidence of facts asserted – Witnesses claiming no memory of events or making statements – Effective inability to cross-examine as to asserted facts — Probative value of evidence outweighed by danger of unfair prejudice – Evidence excluded.
Evidence Act 2001  (Tas), ss43, 60, 137.
R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182; Galvin v R (2006) 126 A Crim R 449, applied.
R v Adam (2001) 207 CLR 96, considered
Aust Dig Criminal Law [2682]

Frank Robert Ielo & Ors v Marbrook Holdings & Ors [1998] FCA 168 (5 March 1998)

[1998] FCA 168  TRADE PRACTICES – Consumer protection – misleading or deceptive conduct – negligence – fraud – sale of fruit business – representations – reliance – damages.

EVIDENCE – Non-calling of a witness by a party – whether an inference can be drawn from a failure to call a witness – prior inconsistent statement – whether necessary to prove a prior inconsistent statement when inconsistency not admitted.

Evidence Act 1995  (Cth) ss 43, 45, 60 and 106

Klewer v Walton [2003] NSWCA 308 (14 October 2003)

[2003] NSWCA 308

PROCEDURE – Adjournments – Unrepresented litigant involved in other proceedings – Request for adjournment in late communication to other party – No communication to or appearance in court – Adjournment refused.

EVIDENCE – Hearsay – Previous written statement by witness called by party – Leave to cross-examine sought and refused – Whether an error vitiating decision.


Evidence Act 1995  ss.38, 43, 45, 60, 106, 192

Trustees of the Property of Zoltan Sandor, a Bankrupt v Ramirez [1999] NSWCA 261 (20 August 1999)

[1999] NSWCA 261

EVIDENCE ACT 1995  – prior inconsistent statement – application of s43 – effect of ss60 and 64

TRUSTS – whether resulting trust – principle in Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 inapplicable

EVIDENCE – parties admittedly engaged in dishonest activity – whether evidence could be relied on

COSTS – trustee in bankruptcy – whether costs should follow event where bankrupt engages in dishonest activity – whether fraudulent – trial Judge’s discretion

Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2008] FCA 678 (16 May 2008)

[2008] FCA 678

TRADE PRACTICES – restrictive trade practices – accessorial liability for contravention of s 45E(3) of the Trade Practices Act 1974 (Cth) – existence of an “arrangement or understanding” – lack of necessary “meeting of the minds”

EVIDENCE – admissibility under s 45 of the  Evidence Act 1995  (Cth) of document witness taken to in cross-examination – admissibility of witness statement where witness not called – admissibility of answers to s 155 Trade Practices Act 1974 (Cth) notices

Evidence Act 1995  (Cth) ss 43, 45, 81, 83, 87(1), 122, 140(2)

Conway v The Queen [2000] FCA 461 (11 April 2000)

[2000] FCA 461

Criminal Law – murder – appeal against conviction – admissibility of evidence – evidence of relationship – whether evidence constituted propensity evidence that should have been excluded – meaning and scope of “propensity evidence” – whether evidence of oral representation by the deceased that the accused administered a drug to her some days before her murder is admissible as an exception to the hearsay rule – whether deceased’s oral statements made shortly after the asserted fact – whether deceased’s representation made in circumstances that make it unlikely that the representation is a fabrication – whether deceased’s representation made in circumstances that make it highly probable that the representation is reliable – whether similar representation recorded by the deceased in her diary is admissible as an exception to the hearsay rule – whether directions to the jury on the use of relationship evidence adequate.

Criminal Law – murder – appeal against conviction – accomplices – warning – need for under ss 164 and 165 of the  Evidence Act 1995  (Cth) – whether adequate warning given in the circumstances of the case – whether items of evidence identified by the trial judge were capable of corroborating the evidence of the accomplices – whether incorrect identification led to miscarriage of justice.

Criminal Law – murder – appeal against conviction – whether sufficient direction on

co-conspirator rule – whether trial judge’s intervention during cross-examination of

co-accused caused trial to miscarry – whether evidence of an out of court statement by a

co-accused wrongly rejected – whether proper directions given on evidence of good character – whether question arose as to an accused’s fitness to stand trial – whether trial judge failed to properly direct on accused’s failure to recall certain events – whether trial judge failed to adequately put the defence case of one accused to the jury.

Evidence Act 1995  (Cth), ss 43, 44, 59, 60, 65, 66, 72, 97, 98, 101, 110, 136, 137,164, 165

Australian Securities & Investments Commission v Rich [2006] NSWSC 643 (27 June 2006)

[2006] NSWSC 643

EVIDENCE – cross-examination on documents not tendered – third party documents and prior representations of the witness – transcripts of examinations including transcripts that could not be tendered in penalty proceedings – discretionary considerations

Evidence Act 1995  (NSW), ss 9, 26, 43, 44, 192