Category Archives: s. 039

R v AJS [2005] VSCA 288 (7 December 2005)

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http://www.austlii.edu.au/au/cases/vic/VSCA/2005/288.html

Criminal Law – Conviction and sentence – Incest – Failure by trial judge to direct jury that the act of penetration must be committed intentionally – Trial judge not assisted by counsel – Unsafe and unsatisfactory verdict – Insufficient evidence to establish guilt beyond reasonable doubt – Need for trial judge to assist the jury by relating evidence to the legal definition of “vagina” and the issue of penetration – Improper re-examination as to prior evidence given at committal – Verdict for lesser offence not substituted – Unable to conclude that jury must have been satisfied of mental element in lesser offence – Appeal allowed.

Stanoevski v R [2001] HCA 4; 202 CLR 115; 177 ALR 285; 75 ALJR 454 (8 February 2001)

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[2001] HCA 4

Evidence -  Evidence Act 1995  (NSW) – Character evidence – Accused raised own good character – Judicial discretion to allow cross-examination of accused on alleged past misdeeds not directly related to facts in issue – Whether discretion to allow cross-examination miscarried.

Words and phrases – “good character” – “credibility” – “leave, permission or direction” – “unfairness”.

Evidence Act 1995  (NSW), ss 55, 56, 102, 104, 106, 112, 135, 192.

R v Heron [2000] NSWCCA 312 (17 August 2000)

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[2000] NSWCCA 312

MURDER – APPEAL AGAINST CONVICTION – APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE.

At trial the prosecution case was that the death of Mr Jularic was caused by the appellant stabbing him with a knife in the course of a fight in a hotel pool room. The appellant admitted he had fought with Mr Jularic but denied having a knife or stabbing him. The medical evidence from the post mortem examination was that the fatal wound was made by a knife like object. Some glasses had been broken during the fight. The appellant’s case was that it was not unlikely that a shard of glass had accidentally caused the penetrating wound. Some witnesses gave evidence of having seen a knife in the appellant’s hand, some had heard voices exclaiming “he’s got a knife“.

The appellant’s chief grounds of appeal were that the trial judge had wrongly refused to discharge the jury, had spoken to the jury in the appellant’s absence, had wrongly admitted evidence, had made a prejudicial comment, had unduly made his own opinions known to the jury, and that the jury’s verdict was unsafe and unsatisfactory.

Held: Appeal dismissed. None of the grounds was made out. The judge had made no errors of law or in exercise of discretion, or procedurally, as complained of. In regard to his making his own opinions known to the jury, he had given appropriate instructions, on a quite sufficient number of occasions, telling the jury that they were the sole deciders of fact. There was no sign in his remarks of his attempting to use his position and authority to overbear the jury into accepting his views if they were different from his: R v Zorad (1990) 19 NSWLR 91, R v D (1997) 68 SASR 571 at 579, discussed and applied. On the unsafe and unsatisfactory ground, after taking into account the inevitable differences in detail of the evidence of the numerous witnesses, there was no basis for the court on appeal to have any doubt of the guilt of the appellant or to see any significant possibility that an innocent person had been convicted.

On the application for leave to appeal against sentence: leave granted but appeal dismissed; no error shown in the sentencing judge’s handling of the sentencing proceedings, or in their result.