http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/94.html

CRIMINAL LAW – offences of aggravated sexual assault and aggravated indecent assault – multiple counts in relation to each of two child complainants – evidence of separate complaints – where no suggestion of collusion between the complainants – whether evidence of one complainant inadmissible in proof of the Crown case in relation to the other – no issues of cross-admissibility raised at trial – directions of trial judge did not indicate evidence on one count available to use in another count – no direction sought at trial – trial directions adequate in the circumstances of the trial – no error established by the trial judge in not giving a direction in terms specified in R v Mitchell (1995) NSWCCA, 5 April 1995, unreported or in R v Mayberry [2000] NSWCCA 531

CRIMINAL LAW – offences of aggravated sexual assault and aggravated indecent assault – directions to the jury – evidence of complaint – delay between the mother of the complainants hearing complaint and providing police statement – where absence of corroboration – whether direction under s 165 Evidence Act 1995 required in circumstances in which the issue of the reliability of the complainants and their mother is directly in issue – no direction was required under s 165 Evidence Act 1995

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/479.html

EVIDENCE – admissibility – probative value – unfair prejudice – whether reliability or weight relevant to determination of probative value – potential contamination of evidence – R v Shamouil and Dupas v The Queen considered – insufficient evidence of contamination – no ground to believe effective cross-examination not possible – evidence admissible

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/73.html

CRIMINAL LAW – appeal against conviction – conspiracy to import commercial quantity of cocaine – extension of time – whether trial miscarried because of conduct of Crown prosecutor – application of the proviso in s 6(1) of the Criminal Appeal Act

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/68.html

CRIMINAL LAW – appeal – applicants questioned at a hearing before the New South Wales Crime Commission – non-publication direction under s 13(9) of the New South Wales Crime Commission Act 1985 (NSW) – transcripts of interview and compelled documents provided to Director of Public Prosecutions in breach of non-publication direction – concession that provision of material unlawful – whether provision of materials to the Director denied the applicants’ right to a fair trial or otherwise created a miscarriage of justice

ADMINISTRATIVE LAW – functions of the New South Wales Crime Commission – obligation to furnish admissible evidence on the Director – whether obligation limits the power of the Commission to furnish other material to the Director

CRIMINAL LAW – appeal – failure to warn the jury about particular matters relevant to the reliability of a witness – whether the trial judge misdirected the jury

CRIMINAL LAW – appeal – whether verdicts were unreasonable and unsupported by the evidence – approach of appellate court in determining this ground – evidence in support of the case circumstantial – evidence of key witness consistent with this evidence – reliability and adequacy of witness’s evidence in question – where the jury had the advantage of assessing the witness

CRIMINAL LAW – appeal – where applicant alone charged with possession – where trial judge gave directions allowing the applicant to be convicted on the basis of joint possession – whether the trial judge misdirected the jury

CRIMINAL LAW – appeal – applicants charged with supply of prohibited drugs – one applicant charged in the alternative with knowingly taking part in supply – trial judge gave directions allowing conviction on the basis of joint possession with others, or individually – whether trial judge misdirected the jury

CRIMINAL LAW – appeal – evidence – nature of “consciousness of guilt” reasoning

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/31.html

CRIMINAL LAW – General Matters – two charges of sexual intercourse without consent – judge-alone trial – whether sexual intercourse took place – whether there was consent – whether accused knew of absence of consent or was reckless about consent – elements of offences not established beyond reasonable doubt – accused not guilty of either offence

http://www.austlii.edu.au/au/cases/cth/HCA/2012/34.html

Criminal law – Evidence – Trial by judge alone – Appellant convicted of aggravated indecent assault of granddaughter (“CD”) – CD aged three years at time of alleged offence – Appellant gave sworn evidence denying offence – CD’s unsworn statement only evidence of offence – Trial judge did not record any finding respecting appellant’s evidence – Whether reasons sufficient to make clear appellant’s evidence rejected beyond reasonable doubt – Whether CD’s evidence reliable – Whether evidence sufficient to prove offence beyond reasonable doubt.

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/4.html

CRIMINAL LAW – jurisdiction, practice and procedure – trial by judge alone – offence of act of indecency with young person – no question of principle – accused is guilty.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/270.html

CRIMINAL LAW – appeal – conviction – post offence conduct – consciousness of guilt

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/1310.html

Criminal Law – bail – manufacture not less than commercial quantity of prohibited drug – whether bail should not be refused

http://www.austlii.edu.au/au/cases/cth/ADFDAT/2012/4.html

DEFENCE – charges of disobeying lawful command, prejudicial conduct and giving false evidence – whether direction of an Assistant Inspector General of the Australian Defence Force was a lawful order – whether charges could be preferred under s 60 of the Defence Force Discipline Act 1982 when conduct proscribed by specific offence in Defence Force Discipline Act 1982 – whether conviction bad for latent ambiguity – whether substantial miscarriage of justice – whether charges duplicitous – adequacy of reasons – whether failure to comply with rule in Browne v Dunn (1893) 6 R 67 resulted in unfair rejection of appellant’s evidence or denial of procedural fairness – whether verdicts inconsistent

EVIDENCE – Admitting record of interview into evidence – evidence prima facie admissible – whether Defence Force Magistrate erred in not directing himself in accordance with s 165 of Evidence Act 1995 (Cth) –application for Tribunal to receive and act on new evidence – quality of new evidence not such as to demand verdict of acquittal

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/188.html

CRIMINAL LAW – appeal against conviction – sexual intercourse without consent -whether unreasonable verdict – whether trial miscarried by denial of procedural fairness

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/181.html

CRIMINAL LAW – appeal against conviction – supply of more than a large commercial quantity – deemed supply – whether trial judge erred in refusing to sever count 2 – whether trial judge erred in refusing to direct a verdict – whether trial judge erred in directions to the jury – whether unreasonable verdict

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/174.html

CRIMINAL LAW – interlocutory Crown appeal – larceny – admissibility of evidence – coincidence evidence – conditions of admissibility – reasonable notice – formation of opinion by court that the evidence, either by itself or having regard to other evidence adduced or to be adduced by tendering party, capable of having significant probative value – evidence not admissible if conditions not met – process for determination of admissibility – differing functions of judge and jury – whether evidence capable of having significant probative value – whether probative value of evidence substantially outweighs its prejudicial effect – probative value does not substantially outweigh prejudicial effect – Criminal Appeal Act 1912, s 5F(3A), s 5F(5) – Evidence Act 1995 , s 97, s 98, s 100(2), s 101, s 165

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/159.html

CRIMINAL LAW – Appeal against conviction – Sexual assault offences – Whether trial was held according to law – Whether trial a nullity – Appellant not arraigned in accordance with mandatory requirements, Criminal Procedure Act 1986, s 130(3)(b) – Appellant not arraigned again after empanelment of jury – No requirement to re-arraign accused person after empanelment where there is no legal issue to be determined in the exercise of the court’s jurisdiction under s 130(2).

CRIMINAL LAW – Appeal against conviction – Sexual assault offences -Complainant’s response during cross-examination “Why would I lie about that?”- Motive to lie an issue for the jury’s determination – Crown Prosecutor’s address to the jury drew attention to complainant’s response – Whether the Crown Prosecutor’s address resulted in a miscarriage of justice – Crown Prosecutor permitted to refer to complainant’s evidence – Impermissible for the Crown Prosecutor to indicate that the complainant had no motive to lie thereby suggesting the accused bore an onus to establish complainant was lying.

CRIMINAL LAW – Appeal against conviction – Sexual assault offences -Complainant’s response during cross-examination “Why would I lie about that?”- Whether trial judge’s direction that there may be a number of reasons why a person has a motive to lie was inadequate – Trial judge directed jury to the complainant’s response and reminded jury that Crown bore onus of proof beyond reasonable doubt – Trial judge’s direction concluded that it was a matter for the jury to assess complainant’s evidence – Trial judge’s direction was adequate.

CRIMINAL LAW – Appeal against conviction – Sexual assault offences – Whether trial judge erred by failing to give a proper and/or adequate warning to the jury as to the unreliability of evidence of admissions pursuant to the Evidence Act 1995 , s 165 – Appellant’s defence counsel specifically agreed to the terms of the direction that the trial judge proposed to give and in fact gave – Trial judge was not required to give a direction that contained the specific warning and information specified in s 165(2).

CRIMINAL LAW – Appeal against conviction – Sexual assault offences – Whether an aggregation of the defects alleged in the grounds of appeal constituted a miscarriage of justice – Court not satisfied that there were defects in the conduct of the case – Appeal dismissed.

CRIMINAL LAW – Application for leave to appeal on sentence – Trial judge misstated the standard non-parole period for Crimes Act, s 61M(2) offence at the time the offence was committed – Trial judge assessed the offending conduct below the mid-range of objective seriousness – Error in statement of standard non-parole period led to error in the non-parole period imposed for the offence – Appeal allowed – Appellant re-sentenced.

CRIMINAL LAW – Application for leave to appeal on sentence – Trial judge erred in finding that the commission of the offences in counts 1, 2 and 3 in the home was an aggravating feature – Despite error no other sentence warranted in law in respect of counts 1 and 2.

CRIMINAL LAW – Application for leave to appeal on sentence – Length of total sentence imposed – Whether trial judge erred in not finding special circumstances – Trial judge had regard to the question of accumulation of sentences – Trial judge was not in error.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/41.html

CRIMINAL LAW – murder – reckless indifference to human life – intoxication – unreasonable verdicts – fact finding on sentencing – standard non-parole periods

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/27.html

CRIMINAL LAW – Appeal – conviction – reliability of witnesses – whether the trial judge erred in failing to warn the jury that the witness’ evidence might be unreliable – s 165 Evidence Act 1995 – whether the trial judge erred in failing to provide reasons concerning the s 165 jury direction.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2012/211.html

CRIMINAL LAW – murder trial – application for warnings under s.165 Evidence Act 1995 – three persons in house: the Accused, the deceased and the principal Crown witness – deceased stabbed – defence case that principal Crown witness must have been the killer – s.165(1)(d) unreliability direction sought – further s.165 unreliability direction sought based upon intoxication of principal Crown witness – whether matters which might adversely affect reliability of evidence of Crown witness would readily be understood and appreciated by jury – whether jury might be misled in making assessment or evaluation of evidence without s.165 warning – s.165 warnings declined

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/21.html

CRIMINAL LAW – appeal – conviction – unreasonable verdict – unsupported by the evidence – circumstantial evidence – circumstantial evidence to be considered as a whole -reasonable doubt on independent assessment of the evidence – jury advantage in hearing evidence insufficient to resolve reasonable doubt.
CRIMINAL LAW – appeal – conviction – identification evidence – probative value – “displacement effect” – appropriate directions – whether evidence of similar appearance is identification evidence. CRIMINAL LAW – appeal – conviction – expert evidence – identification and proof of assumptions by admissible evidence – qualification of expert – weight to be given to expert evidence.
CRIMINAL LAW – appeal – conviction – expert evidence – breach of Expert Witness Code of Conduct – whether breach of Expert Witness Code of Conduct goes to admissibility or weight – discretionary exclusion of evidence of expert who breaches Code of Conduct.
CRIMINAL LAW – appeal – conviction – evidence – admissibility – relevance.
CRIMINAL LAW – appeal – conviction – whether a conclusion of fact is an indispensable intermediate fact – need for a Shepherd direction – Shepherd direction not required.
CRIMINAL LAW – appeal – conviction – whether trial miscarried because of prejudice occasioned by the Crown prosecutor – prosecutor’s duty of fairness – whether prosecutor breached trial judge’s ruling – whether prosecutor invited jury to invert the onus of proof – whether prosecutor impermissibly gave personal opinions – whether prosecutor misrepresented evidence – whether prosecutor failed to adhere to case theory.
CRIMINAL LAW – appeal – conviction – joint criminal enterprise – need for evidence of enterprise and participation by the accused.
CRIMINAL LAW – evidence – lack of evidence to support motive – dangers of inviting speculation as to motive – whether unfair prejudice occasioned.
CRIMINAL LAW – new and fresh evidence – evidence not disclosed by prosecution at time of trial.

http://www.austlii.edu.au/au/cases/cth/HCA/2011/44.html

Criminal law – Trial – Directions to jury – Appellants convicted of charges arising from tax avoidance scheme – Appellants’ dishonesty only issue at trial – Appellants gave evidence – Prosecution called appellants’ accountant as witness – Appellants’ counsel cross-examined accountant suggesting he tailored evidence to avoid own prosecution – Trial judge told jury they could evaluate credibility by considering a witness’s “interest in the subject matter of the evidence” including “self-protection” – Whether misdirection causing miscarriage of justice – Whether direction deflected jury from need to be persuaded beyond reasonable doubt of appellants’ guilt – Whether direction invited jury to test appellants’ evidence according to appellants’ interest in outcome of trial – Principles applicable to directions about evaluation of evidence.

FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ
42 As has been repeatedly pointed out[30], the judge in a criminal trial must accept the responsibility of deciding what are the real issues in the case, must tell the jury what those issues are, and must instruct the jury on so much of the law as the jury needs to know to decide those issues. The trial judge may, but need not, comment on the facts of the case[31]. The trial judge may, but need not, suggest how the jury might evaluate the credibility of evidence that has been given. In some circumstances the common law[32] or statute[33] may require the trial judge to give a particular warning to the jury about factual issues. But informing and underpinning all of these requirements is that the judge’s instructions to the jury, whether by way of legal direction or judicial commentary on the facts, must not deflect the jury’s attention from the need to be persuaded beyond reasonable doubt of the accused’s guilt before returning a verdict of guilty.

FN33
[33] See, for example, Evidence Act 1995 (Cth), s 165.

http://www.austlii.edu.au/au/cases/tas/TASCCA//2011/14.html

Criminal Law – Evidence – Identification evidence – Warning advisable or required – Adequacy of warning – Generally – Special need for caution – Reasons for that need generally and in the circumstances.

Evidence Act 2001 (Tas), ss116, 165(2).

R v Clarke (1997) 97 A Crim R 414, followed.

Aust Dig Criminal Law [2948]

Criminal Law – Appeal and new trial – Particular grounds of appeal – Misdirection and non-direction – Particular cases – Where appeal allowed – Misdirection as to topic not covered in cross-examination.

Browne v Dunn (1893) 6 R 67, referred to.
Aust Dig Criminal Law [3490]

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2011/934.html

APPEAL – civil – of the Crimes (Appeal and Review) Act 2001, s 53(3) application for leave to appeal decision – Any person against whom an interlocutory order has been made by the Local Court in relation to the person in summary proceedings may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/63.html

CRIMINAL LAW – trial by judge alone – identity evidence – considerations to be taken into account – whether “Molotov cocktail” falls within the definition of prohibited weapon under the Prohibited Weapons Act 1996 – definition of “damage property” and “deface the property” under the Criminal Code 2002 – accused guilty on both charges

Evidence Act 1995 (Cth), ss 116, 165(1)(b)

http://www.austlii.edu.au/au/cases/cth/FCA/2011/216.html

PRACTICE AND PROCEDURE – O 16 of the Federal Court Rules – leave to administer interrogatories – interrogatories sufficiently confined – whether interrogatories are premature – whether interrogatories are fishing – whether the certification to the pleadings under O 11 r 1B(1) of the Federal Court Rules is relevant to prematurity or fishing arguments

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/62.html

CRIMINAL LAW – conviction appeals – joint trials of Appellants – all Appellants convicted of two murders (Lawford Street shooting) – firearm attack on suburban house from street – two occupants (Ziad Razzak and Mervat Nemra) killed – joint criminal enterprise – alleged to be part of feud between two groups – one Appellant (Darwiche) convicted at same trial of earlier offences of maliciously discharge loaded firearm with intent to cause grievous bodily harm (to Bilal Razzak) and shoot at a person (Farouk Razzak) with intent to murder (Yanderra Street shooting) – these offences also alleged to be part of feud – jury unable to agree upon verdict on further count against Darwiche of murder (of Ali Abdul Razzak) APPEAL – grounds by all Appellants claiming prejudice and a miscarriage of justice flowing from joint trial – no error in decision to hold joint trial of all Appellants for Lawford Street shootings – no error in decision to try Darwiche in same joint trial for earlier alleged shooting offences said to be part of feud – appropriate directions given to jury concerning use of evidence against each Appellant – jury reached verdicts impartially on evidence and in accordance with trial judge’s directions – no miscarriage of justice resulting from joint trial APPEAL – grounds challenging direction that evidence of one indemnified witness could support evidence of another indemnified witness – no error in direction APPEAL – claim by Darwiche that it was abuse of process for prosecution case to be based upon evidence of indemnified witnesses who received benefits – no application made at trial for stay on this basis – no proper basis for stay in any event – assessment of credibility and reliability of witnesses part of jury’s function – all evidence concerning indemnities and benefits placed before the jury – no miscarriage of justice APPEAL – grounds contending error in various respects during trial – no error demonstrated – no miscarriage of justice APPEAL – applications by two Appellants (Darwiche and El-Zeyat) for leave to add further grounds of appeal after hearing of appeal but before judgment delivered – suggested fresh evidence – approach to determination of application for leave – assessment of suggested fresh evidence – whether fresh and credible – whether likely in the context of the trial to cause jury to entertain a reasonable doubt about guilt of Darwiche or El-Zeyat – no miscarriage of justice – leave to add grounds refused

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/61.html

Criminal Law – direction by trial judge that jury could look for independent support for the evidence of one indemnified witness in the evidence of another indemnified witness – evidence of comfit identification – fresh evidence – failure by prosecution to disclose to defence material relevant to credibility of Crown witness.

Evidence Act (NSW) – ss 38, 59, 66(2), 106, 114, 115(5), 137, 164, 165

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2011/38.html

CRIMINAL – appeal against conviction- Shepherd direction not required on facts – failure to issue s 165 Evidence Act warning did not render the verdict of the jury unreasonable – Edwards direction not required – appeal against conviction dismissed

CRIMINAL – appeal against sentence – sentence was not disproportionate to appellant’s criminality – sentence of co-offender did not indicate a lesser sentence for appellant – leave to appeal granted but appeal against sentence dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1488.html

CRIMINAL LAW
bail
murder
whether exceptional circumstances exist

Evidence Act 1995 s 165(1)(d)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/224.html

Unreliability warning

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/1162.html

CRIMINAL LAW – Indictment charging one act of murder – Trial by judge alone.
CRIMINAL LAW – Defence of mental illness – Facts agreed by Crown and the accused – Psychiatric diagnosis of chronic Schizophrenia – Whether accused mentally ill under M’Naghten Rules – Whether accused knew that what he was doing was wrong.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/165.html

CRIMINAL LAW – appeal – necessity for warnings by a trial judge under s 165 of the Evidence Act 1995 – requirement for application to trial judge – unnecessary to warn as to bias of a child – allegation of unreasonable verdict – analysis of evidence – role of fresh evidence – appeal dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/164.html

CRIMINAL LAW
appeal against conviction
armed robbery
detain for advantage
steal motor vehicle
fresh evidence
refusal to discharge jury
s.165 Evidence Act 1995
whether “a dangerous to convict” direction should have been given
directions concerning delay
whether verdicts unreasonable and not supported by evidence
appeal dismissed

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2010/150.html

2 RS HULME J: On 24 September 2008 the above named Appellant was convicted of murdering Lucas Gleeson on 21 July 2007. On 28 November 2008 Justice Fullerton sentenced the Appellant to imprisonment for a period of 26 years and 8 months including a non-parole period of 20 years both such periods commencing on 21 July 2007.

3 The Appellant appeals against only his conviction and upon one ground only, viz:-
The trial judge erred in respect of the directions given to the jury regarding Adam Newbold.

4 Reliance was placed on s165 of the Evidence Act which, so far as is presently relevant, provides:-
(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence
(a) …
(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like;
(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;
(e) evidence given in a criminal proceeding by a witness who is a prison informer;
(f) …
(2) If there is a jury and a party so requests, the judge is to:
(a) Warn the jury that the evidence may be unreliable; and
(b) Inform the jury of matters that may cause it to be unreliable; and
(c) Warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.
(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

5 The warning that her Honour gave to the jury in respect of Mr Newbold was in the following terms (as transcribed):-
“I need now to give you some directions as to how you should approach an assessment of Mr Newbold’s evidence in those circumstances. That is where he has agreed to give evidence against Mr Kutschera when the offending for which he was sentenced occurred on that same night that Mr Kutschera is charged with having murdered the deceased. It is a bit like the warning or caution that I gave you in the context of identification evidence. The direction that I am now going to give you is given in all cases where a person has, because they have agreed to give evidence, had that taken into account when sentenced. …
The warning that I give you is this. A person who gives evidence in Mr Newbold’s position may be giving unreliable evidence. May be giving unreliable evidence, not always, does a person in Mr Newbold’s position give unreliable evidence. Experience has shown that witnesses in Mr Newbold’s position may construct untruthful stories tending to downplay the involvement that they had in the events they are giving evidence about and to play up the role of others. People in Mr Newbold’s position or witnesses generally in that position may make false claims out of hostility or revenge. People in Mr Newbold’s position may feel locked into a version, inculpating, that is saying the other person is guilty, even if that version contains inaccuracies or even untruths. So you should approach his evidence with some caution. In taking that direction into account as you must, you are entitled to look at all the evidence to see whether the other evidence in the case resolves any concern you may have about Mr Newbold giving evidence in this case on his undertaking to give that evidence when that matter was to be taken into account on sentence. I need to tell you this. Mr Newbold was not in fact sentenced to any period of imprisonment. His sentence then was not reduced because he agreed to give evidence, because he was not sentenced as such.
He was however told that if he did not give truthful evidence, that he could be brought back before the judge who sentenced him as the law provides, that is the judge who made a decision about what sort of punishment he should be given for what he did that night and to have the question of his punishment revisited if he did not give truthful evidence.”

6 On behalf of the Appellant it is contended that this direction was inadequate in that:-
(a) It does not refer to the circumstance that, on the version of events given by Tony Matthews, Mr Newbold might well be regarded as having been criminally involved in the murder.
(b) It does not refer to the circumstance that the police, no doubt on the basis of what they had been told by Matthews, charged Mr Newbold with murder.
(c) It focuses exclusively on the circumstance that the appellant had agreed to give evidence against the Appellant when being sentenced for relatively minor matters which had nothing to do with possible involvement in the murder.
(d) The significance of the agreement to give evidence against the Appellant was effectively negated by telling the jury that he did not in fact have his sentence reduced and that he was told his sentence might be revisited “if he did not give truthful evidence”.
(e) No reference was made to the fact that Mr Newbold, having been present at the scene of the murder, had the opportunity to weave the details of what happened into his account to make it appear plausible.

7 It was further submitted that matters that might cause the evidence of Mr Newbold to be unreliable and about which her Honour did not inform the jury were:-
(f) On the version of events given by Tony Matthews, Mr Newbold might well be regarded as having been criminally involved in the murder. If he was criminally involved in the murder, he would have a powerful motive to give any unreliable account which exculpated himself or minimised his part. He would also have a motive to fabricate the role of the Appellant. As was stated in Jenkins v The Queen (2004) 79 ALJR 252; [2004] HCA 57 at [30], “accomplices are regarded by the law as a notoriously unreliable class of witness, having a special lack of objectivity”. Mr Newbold was arrested very soon after the murder and told that he would be charged with murder, so that his motive to give an unreliable account existed prior to him giving his version of events to police.
(g) The charge of murder had been dropped against Mr Newbold, partly as a result of his record of interview, in which he had minimised his part and implicated the Appellant. He would necessarily feel bound to repeat the version given to the police when he gave evidence as am matter of self-protection, in order to avoid prosecution for involvement in the murder (cf Kanaan v The Queen [2006] NSWCCA 109] at [166]).

8 Additional criticisms were:-
(h) The jury were not warned that the much more serious consequences of criminal involvement in a murder, compared with commission of the offences in respect of which Mr Newbold pleaded guilty required a correspondingly greater need for caution in respect of his evidence, and that need for caution was not removed by the fact that the murder charge against Mr Newbold had been dropped, since it could be prosecuted later.
(i) Although the jury were told that they were “entitled to look at all the evidence to see whether the other evidence in the case resolves any concern you may have about Mr Newbold giving evidence in this case…” no reference was made to the fact that Mr Newbold, having been present at the scene of the murder, had the opportunity to weave the details of what happened into his account to make it appear plausible.
(j) The jury were not told of the strongest possibility that potentially undermined Mr Newbold’s reliability, namely that he himself had been criminally involved in the murder.
(k) Her Honour, in deciding the ambit of the warning she should give, took into account evidence that was not before the jury.

9 In response, the Crown submitted that no further warning than that given was requested, that her Honour was entitled to take the view that Mr Newbold was not, in the words of s165, “a witness who might reasonably be supposed to have been criminally concerned in the events”, and that the trial judge had good reasons for not giving a warning more extensive than she did. The Crown also relied on r4 of the Criminal Appeal Rules and, in the last resort, on the proviso to s6 of the Criminal Appeal Act.

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2010/755.html

CRIMINAL LAW
sentence
murder
whether causal link between offender’s brain damage and offending
level of objective seriousness
significance of previous criminal record

Fullerton J
13 There were three guests who were asleep in the lounge room behind a closed door when the deceased arrived. They gave different evidence as to what they saw and heard of the arrival of the deceased and his encounter with the offender. Save for their observations of the offender’s attitude and behaviour as they emerged from the lounge room to see him holding the knife with blood dripping from the blade, and his attitude thereafter as he coopted them into cleaning up the blood and disposing of the knife to avoid detection, I do not rely on their evidence for the purpose of making any factual findings for sentencing purposes. Instead, I prefer to rely upon the evidence of Mr Gould and Mr Bradshaw, another of the offender’s neighbours. Two of the three witnesses in the offender’s home attracted a direction under s 165 of the Evidence Act 1995 at trial because of their chronic alcoholism. I regard the third witness as likely to be mistaken as to what she saw or heard of the confrontation having regard to all the evidence.

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2009/121.html

Criminal Law – Conviction appeal and Crown appeal against sentence – Evidence – tendency evidence – whether admissible – whether overly prejudicial – sufficiency of reasons admitting the evidence.

Evidence Act – ss 97, 101, 137, 165

[2006] NSWCCA 182

CRIMINAL LAW – Appeal against conviction – conspiracy to import cocaine – record of interview – whether judge failed to direct the jury as to consciousness of guilt – whether relevance of record of interview was merely to strengthen an otherwise strong Crown case – application of Rule 4 – whether tactical reasons for not requesting a direction on consciousness of guilt – conscious and informed decision not to seek a redirection – whether the verdict of the jury was unreasonable – meaning of hypothesis consistent with innocence – whether on the whole of the evidence it was open to the jury to conclude that the appellant knew of the planned importation – evidence of recorded conversations – whether an inference available on the knowledge of the accused