Category Archives: s. 165

R v Rice & ors (No 4) [2014] NSWSC 1525 (31 October 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2014/1525.html

CRIMINAL LAW – evidence – where Crown sought to tender evidence of three telephone conversations immediately before closing its case – where evidence had been available for a considerable period beforehand – where Crown on notice of the relevant issues – evidence not previously disclosed to the accused – where counsel for accused had completed cross-examination of the Crown’s principal witness – whether procedural unfairness is capable of giving rise to unfair prejudice for the purposes of s. 137 of the Evidence Act – probative value outweighed by the danger of unfair prejudice arising from a series of circumstances – evidence rejected

Atai v R [2014] NSWCCA 210 (3 October 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/210.html

CRIMINAL LAW – murder – appeal against conviction – no evidence that witness in respect of whom s 165 Evidence Act warning sought might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings – incumbent upon defence to elicit evidence to that effect – no miscarriage resulting from omission to give Murray direction – no undermining of the onus of proof by trial judge stating that jury would have expected to hear challenge to denials by witnesses that they were the shooter if there was one – not persuaded that jury should have had a doubt that the applicant was the person who fired the gun that resulted in the death of the deceased – not persuaded that jury should have had a doubt that the applicant had the relevant mental state

CRIMINAL LAW – murder – appeal against sentence – unproductive to single out one subjective feature, age, in sentence comparison – necessary for sentence to reflect deterrence, denunciation and recognition of harm notwithstanding subjective case – sentence not manifestly excessive

R v Holliday [2014] ACTSC 265 (16 September 2014)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/act/ACTSC/2014/265.html

EVIDENCE – Judicial Discretion to Admit or Exclude Evidence – whether hearsay rule applies – whether maker of representations unavailable – whether representation was made shortly after the asserted fact happened and in circumstances that make it highly unlikely that the representation is a fabrication – whether representation was made in circumstances that make it highly probable that the representation is reliable – whether evidence of prison informant is unreliable

McGavin v R [2014] NSWCCA 171 (25 August 2014)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2014/171.html

CRIMINAL LAW – direction to jury – multiple break and enters in company – co-offender received reduced sentence on undertaking to provide evidence against applicant – neither prosecution or defence proffered information as to effect of percentage of discount received by co-offender – co-offender not cross-examined as to whether motivated by possible resentencing for failure to fulfil undertaking – no warning sought that evidence of co-offender may be unreliable – judge warned about unreliability of co-offender’s evidence with reference to percentage of discount afforded – whether warning on unreliability by the trial judge sufficient – whether the trial judge should have referred to the reduction of time the discount reflected – whether the trial judge should have warned the jury that co-offender would lose benefit of reduced sentence if he failed to fulfil undertaking – Criminal Appeal Rules (NSW), r 4 – Evidence Act 1995 (NSW), s 165

EVIDENCE – warning as to unreliability – witness gave statement to police – discount on sentence for assistance to law enforcement authorities – witness faced resentencing if he departed from undertaking to give evidence implicating his father – whether warning need to quantify effect of discount at risk – whether warning needed to explain liability to be resentenced if he departed from undertaking – Evidence Act 1995 (NSW), s 165

Walker v The Queen [2014] VSCA 177 (18 August 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/177.html

CRIMINAL LAW – Conviction – Appeal – Refusal to discharge jury following evidence of bad character – Substantial miscarriage of justice – Refusal to give unreliable witness warning under s 165 of the Evidence Act 2008 – Warning not required – Appeal allowed – Question of appropriate relief – Retrial ordered – Observations as to Director’s discretion.

Munro v R [2014] ACTCA 11 (24 April 2014)

http://www.austlii.edu.au/au/cases/act/ACTCA/2014/11.html

APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether trial judge erred in admitting statement by cleaner – where statement details system of work employed by cleaner relevant to when DNA may have been deposited at scene – whether statement made in circumstances that make it highly probably that the statement is reliable: s 65(2)(c) Evidence Act 2011 (ACT) – where related to system regularly repeated and therefore likely to be remembered, where no personal interest in trial, where desire to maintain reputation likely outweighed by inclination to avoid criminal prosecution – s 65(2)(c) does not apply to a statement simply because it was made to a police officer

APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether trial judge erred in admitting statement by cleaner – whether trial judge erred in ruling probative value not outweighed by danger of prejudice: s 137 Evidence Act 2011 (ACT) – where author deceased and therefore unavailable for cross-examination – whether jury would assign undue weight to statement in absence of cross-examination – where statement admitted for limited purpose – where judicial directions and counsel’s address to jury available

APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to unreliability of witness – where witness involved in offence charged – where witness had lied in earlier proceedings – s 165 Evidence Act 2011 (ACT) does not require trial judge to form a view as to unreliability of evidence before directing jury – where trial judge gave further directions at request of appellant, and no further request, indicating adequacy of directions

APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to circumstantial evidence – whether evidence in circumstantial case need to be proved beyond a reasonable doubt – evidence in “strands in the cable” case not necessary to prove individual strands beyond a reasonable doubt, nor necessary that individual strands support guilt – misdescription of case as both direct evidence and circumstantial not misleading – where no request for redirection

APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – whether trial judge misdirected the jury in relation to statement by cleaner – where misdirection that statement was not hearsay immaterial – where author deceased and therefore unavailable for cross-examination – whether jury should have been warned of unreliability – where warning at discretion of judge – where no basis for unreliability beyond unavailability – where no request for redirection

APPEAL AND NEW TRIAL – EVIDENCE – Appeal from conviction – whether verdict unsafe and unsatisfactory – where evidence of unreliable witness supported by other evidence in trial – where jury adequately directed – where the evidence was not so lacking in cogency, did not contain such discrepancies or inadequacies, and was not so tainted as to make verdicts of not guilty the only proper verdicts

APPEAL AND NEW TRIAL – EVIDENCE – Directions to the Jury – Appeal from conviction – where no application under r 5531 Courts Procedures Rules 2006 (ACT) – r 5531 not a formality to be neglected – operation of rule alone sufficient to dispose of appeal grounds alleging misdirection

APPEAL AND NEW TRIAL – SENTENCE – Appeal from sentence – aggravated robbery and intentionally inflict grievous bodily harm – whether disparity between sentences imposed on appellant and co-offender – where appellant sentenced for two offences and co-offender only one – common elements in offences not a reason to reduce sentence, but a factor in determining concurrency – where appellant was individual who discharged weapon causing grievous bodily harm, not co-offender – where co-offender not sentenced on basis of discharge of firearm – where co-offender pleaded guilty – where subjective circumstances different

APPEAL AND NEW TRIAL – SENTENCE – Appeal from sentence – whether manifestly excessive – serious example of offending – where offences called for strong general deterrent effect

APPEAL AND NEW TRIAL – SENTENCE – Appeal from sentence – whether trial judge in error in relying on aggravating feature not proved beyond reasonable doubt – where criminal history suggested appellant was at large in breach of bail at committal – where history possibly inconsistent – where no inference available that the appellant had absconded from bail in South Australia – where trial judge made findings of aggravating circumstances, necessary inference is they were taken into account on sentence

Benson v The Queen [2014] VSCA 51 (28 March 2014)

http://www.austlii.edu.au/au/cases/vic/VSCA/2014/51.html

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).

R v Orchard [2013] NSWCCA 342 (24 December 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/342.html

CRIMINAL LAW – conviction appeal – from judge alone trial – supply a commercial quantity of methylamphetamine – whether trial judge erred in finding independent evidence corroborative of evidence of key witness involved in criminal transaction – whether trial judge erred in failing to give warning – that corroboration was required before evidence of witness could be acted upon – Markuleski direction – whether reasons inadequate – whether conduct of trial judge rendered the trial unfair – alleged excessive intervention by trial judge in cross examination by defence counsel – critical comments made about counsel – defence counsel ultimately dismissed and withdrew from proceedings – whether verdict unreasonable and unsupported by the evidence.

CRIMINAL LAW – sentence appeal – application for leave – whether trial judge erred in approach to standard no parole period – whether insufficient weight given to mental health and other health issues of appellant – whether sentence manifestly excessive.

Flanagan v R [2013] NSWCCA 320 (20 December 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/320.html

CRIMINAL LAW – appeal against conviction – whether trial judge’s failure to leave self-defence to the jury occasioned a miscarriage of justice – whether leave should be granted under the Criminal Appeal Rules, r 4.

CRIMINAL LAW – appeal against conviction – whether trial judge’s failure to explain the legal consequences of an accidental wounding occasioned a miscarriage of justice – whether leave should be granted under the Criminal Appeal Rules, r 4.

CRIMINAL LAW – appeal against conviction – whether trial judge’s summing up occasioned a miscarriage of justice – whether leave should be granted under the Criminal Appeal Rules, r 4.

CRIMINAL LAW – appeal – conviction – whether jury verdict is unreasonable or cannot be supported having regard to the evidence.

Dewsen v Macdonald [2013] ACTSC 252 (29 November 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/252.html

APPEAL AND NEW TRIAL – application for leave to appeal out of time from Magistrates Court – appeal against conviction – self represented litigant – whether applicant has reasonable prospects of success – no grounds of appeal revealed in material before Court

PRACTICE AND PROCEDURE – Abuse of Process – application for leave to appeal out of time from Magistrates Court – applicant putting on same application as already determined by different judge of this court

Dewsen v Macdonald [2013] ACTSC 152 (29 November 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/152.html

APPEAL AND NEW TRIAL – application for leave to appeal out of time from Magistrates Court – appeal against conviction – self represented litigant – whether applicant has reasonable prospects of success – no grounds of appeal revealed in material before Court

PRACTICE AND PROCEDURE – Abuse of Process – application for leave to appeal out of time from Magistrates Court – applicant putting on same application as already determined by different judge of this court

TDP v R; R v TDP [2013] NSWCCA 303 (3 December 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/303.html

CRIMINAL LAW – APPEAL AGAINST CONVICTION – nine counts of aggravated sexual intercourse without consent and two counts of aggravated indecent assault – offences occurring over 3½ years when complainant aged between 13 and 16 – applicant self-represented – alleged failure by Crown to place all relevant evidence before jury – relevance of toxicology report on complainant’s hair – challenge to summing up by trial judge – alleged failure by trial judge to emphasise contradictions in complainant’s evidence – alleged failure by trial judge to give a warning as to the unreliable nature of complainant’s evidence – alleged failure by trial judge to adequately sum up as to corroboration of complainant’s evidence – alleged miscarriage of justice due to incompetence of counsel – application of rule 4 of Criminal Appeal Rules – whether post-conviction admissions by applicant can be taken into account in a conviction appeal and if so in what way – conviction appeal dismissed – CROWN APPEAL AGAINST SENTENCE – failure by sentencing judge to impose non-parole periods, contrary to s 45(1) of Crimes (Sentencing Procedure) Act 1999 – whether applicant’s mental health properly taken into account – whether sentences properly accumulated – whether sentences manifestly inadequate – Crown appeal against sentence substantially dismissed.

R v Wotherspoon [2013] NSWSC 1730 (21 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1730.html

SENTENCE – special hearing – found unfit to be tried – determined that accused will not become fit during twelve months after finding of unfitness – murder – alternative offence of robbery in company with the infliction of grievous bodily harm – Crown case depends upon accused’s admissions – reliability of accused’s admissions – reliability affected by accused’s mental illness, drug abuse and delay between commission of offence and date of admissions – direction according to terms of s 165, Evidence Act – not satisfied beyond reasonable doubt as to reliability of accused’s admissions

Bin Sulaeman v R [2013] NSWCCA 283 (14 November 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/283.html

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

John Hudak & Anor v Rhys Adams & Anor [2013] NSWSC 1464 (27 September 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/1464.html

FRAUD – whether the first defendant has committed fraud and forged the first plaintiff’s signature on the transfers of real property, the pre-testamentary disposition document and on other documents – whether transfers of property were forged by the first defendant – whether the first plaintiff was complicit in the forgery or consented to the transfer
REAL PROPERTY – claim for compensation out of Torrens Assurance Fund
EVIDENCE – consideration given as to whether a Jones v Dunkel inference can be drawn in a civil case

Australian Competition and Consumer Commission v Chaste Corporation Pty Ltd (No 3) [2013] FCA 984 (27 September 2013)

http://www.austlii.edu.au/au/cases/cth/FCA/2013/984.html

CONTEMPT OF COURT – alleged failure of fourth respondent to comply with order of the Federal Court of Australia – two charges of contempt of Court – consideration of requisite elements and whether proven beyond reasonable doubt – whether alleged contemptor was knowingly concerned in breach of orders

Held: both charges of contempt of Court proved beyond reasonable doubt, notwithstanding that certain particulars of charge 2 not so proved

Allen v The Queen [2013] VSCA 263 (20 September 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/263.html

CRIMINAL LAW – Appeal against conviction on charges of indecent assault and rape – Complainant cognitively impaired and suffering from schizophrenia – Request made by counsel for an unreliability direction – Section 165(1)(c) of Evidence Act 2008 – Whether evidence of a kind that may be unreliable – Warning at common law where witness suffering from mental ill health – Bromley v The Queen [1986] HCA 49; (1986) 161 CLR 315 considered – Whether s 165 requires different approach – Divergent views of intermediate Courts of Appeal – R v Flood [1999] NSWCCA 198; R v Stewart [2001] NSWCCA 260; (2001) 52 NSWLR 301; Lane v The Queen (1996) 66 FCR 144 – Whether reasonable possibility that evidence of a kind that may be unreliable – Role of trial judge – Whether ‘good reason’ for not giving warning – Issue at trial whether the sexual assaults were consensual – Evidence at trial of the complainant’s mental health history – Jury conscious of potential unreliability – Leave to appeal refused.

CRIMINAL LAW – Sentence – Total effective sentence of eight years and three months – Whether sentence manifestly excessive – Leave to appeal refused.

Glass v Tasmania [2013] TASCCA 8 (5 September 2013)

http://www.austlii.edu.au/au/cases/tas/TASCCA/2013/8.html

Appeal and new trial – Miscarriage of justice – Particular circumstances amounting to miscarriage – Misdirection or non-direction – Non-direction – Failure to direct on potential unreliability of evidence – Failure to direct on permissible use of evidence of uncharged criminal and discreditable conduct – Failure to direct against engaging in impermissible propensity or tendency reasoning.

Criminal Code 1924 (Tas), ss401(1), 402(1), 402(2).

Evidence Act 2000 (Tas), ss165(2), 165(5).

Clarke v The Queen [2013] VSCA 206 (17 July 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/206.html

CRIMINAL LAW – Appeal – Conviction – Incest – Attempted incest – Indecent act with child under 16 – Renewal of application for leave to appeal – Child complainants – Complainants’ evidence tape-recorded – Whether trial judge erred by cautioning jury about reliability of children’s evidence and recorded evidence – No risk of jury being influenced in a manner adverse to defence – Application refused – Criminal Procedure Act 2009 (Vic) s 375; Evidence Act 2008 (Vic) s 165A(1).

EVIDENCE – Criminal law – Sexual offences – Child complainants – Evidence tape-recorded – Whether trial judge erred by cautioning jury about reliability of children’s evidence and recorded evidence – No risk of jury being influenced in a manner adverse to defence – Application refused – Criminal Procedure Act 2009 (Vic) s 375; Evidence Act 2008 (Vic) s 165A(1).

R v Jacobs (No 8) [2013] NSWSC 949 (15 July 2013)

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2013/949.html

EVIDENCE LAW – application for a warning pursuant to s 165 of Evidence Act – admissions of the accused captured on covert listening device – whether evidence “may be unreliable” due to delirium – whether there are good reasons not to give warning – whether courts have special experience with admissions – no special experience with regard to delirium – application refused

R v Dib [2013] ACTSC 70 (19 April 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/70.html

CRIMINAL LAW – PARTICULAR OFFENCES – Drug Offences – two charges of trafficking in a controlled drug – judge-alone trial – whether accused transported or possessed drugs with intention of selling – whether drugs were in accused’s possession – reasonable doubt whether bag transported by accused was bag subsequently found to contain drugs – accused’s DNA on outside of bag containing drugs – possibility that accused’s DNA found on one item inside bag deposited by secondary transfer during police search of bag – reasonable doubt whether accused had possession of bag containing drugs – accused not guilty of either offence.

RRS v R [2013] NSWCCA 94 (2 May 2013)

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

R v Dib [2013] ACTSC 71 (19 April 2013)

http://www.austlii.edu.au/au/cases/act/ACTSC/2013/71.html

CRIMINAL LAW – PARTICULAR OFFENCES – Drug Offences – two charges of trafficking in a controlled drug – judge-alone trial – whether accused transported or possessed drugs with intention of selling – whether drugs were in accused’s possession – reasonable doubt whether bag transported by accused was bag subsequently found to contain drugs – accused’s DNA on outside of bag containing drugs – possibility that accused’s DNA found on one item inside bag deposited by secondary transfer during police search of bag – reasonable doubt whether accused had possession of bag containing drugs – accused not guilty of either offence.

R v Abdollahi (No 6) [2013] NSWSC 479 (6 March 2013)

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

Lee Do Young v Regina; Lee Seong Won v Regina [2013] NSWCCA 68 (3 April 2013)

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

R v Muller [2013] ACTCA 15 (28 March 2013)

http://www.austlii.edu.au/au/cases/act/ACTCA/2013/15.html

EVIDENCE – Competence – witness not competent to give sworn evidence – whether witness competent to give unsworn evidence – what court must tell witness – whether s 13(5) Evidence Act 2011 (ACT) requires that witness understand – whether court may inquire into witness’s understanding – witness’s lack of understanding no basis for finding witness incompetent to give unsworn evidence.

APPEAL – Application for leave to appeal against interlocutory decision – trial judge erred in finding complainant incompetent to give unsworn evidence – appeal allowed – admissibility of complainant’s evidence remitted to trial judge.

Steadman v R (No 1) [2013] NSWCCA 55 (13 March 2013)

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCCA/2013/55.html

EVIDENCE – indecent assault of person under the age of 16 – context evidence to assist in evaluation of complainant’s evidence of alleged offences – previous conduct of the appellant of a sexual nature involving the complainant – requirements for use as propensity evidence not satisfied – appropriate directions to the jury

R v Shero [2013] ACTSC 31 (1 March 2013)

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

Andelman v The Queen [2013] VSCA 25 (25 February 2013)

http://www.austlii.edu.au/au/cases/vic/VSCA/2013/25.html

CRIMINAL LAW — Appeal against conviction — Appellant convicted after trial on 85 counts of theft — Crown alleged that appellant stole money from parking meters while employed as coin collector — Appellant self-represented at trial — Evidence led from co-offenders that they had pleaded guilty and been sentenced for similar thefts while on shifts with appellant — Evidence of substantial coin deposits into appellant’s bank account following 45 of the alleged thefts — Coin deposit evidence used for coincidence purposes though no coincidence notice served — Whether evidence of pleas by co-accused admissible — Whether trial judge obliged to raise potential objections to admissibility of such evidence with self-represented accused — Whether trial judge obliged to raise potential applicability of s 165 of the Evidence Act 2008 — No warning given to jury in relation to evidence of co-accused — Importance of compliance with statutory obligation to provide tendency and coincidence notices — Scope of trial judge’s duty where accused self-represented — MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512 applied.

CRIMINAL LAW — Appeal against conviction — Application of Criminal Procedure Act 2009 s 276(1) — Whether substantial miscarriage of justice in the appellant’s trial as a result of error or irregularity — Strong Crown case — Serious departure from the prescribed processes for trial — Strength of Crown case not by itself a determinant factor in assessing whether miscarriage of justice occurred — Appeal allowed — Retrial ordered — Baini v The Queen (2012) 293 ALR 472 applied.

Douglass v The Queen [2012] HCA 34 (11 September 2012)

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.

Dupas v The Queen [2012] VSCA 328 (21 December 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/328.html

CRIMINAL LAW – Appeal – Conviction – Murder – Circumstantial evidence – Whether verdict unsafe and unsatisfactory – Appeal dismissed.

CRIMINAL LAW – Appeal – Conviction – Identification evidence – Probative value – Unfair prejudice – Assessment of probative value – Reliability of the evidence – Christie discretion at common law examined – Whether danger that evidence may receive disproportionate weight required exclusion – R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228 disapproved; R v Carusi (1997) 92 A Crim R 52, DSJ v R [2012] NSWCCA 9 considered – Evidence Act 2008 (Vic) s 137.

EVIDENCE – Expert evidence as to dangers of identification evidence – Opinion rule –Credibility rule – Exception – Reliability of circumstances of identifications – Admissibility of opinion – Whether based on special knowledge – Evidence Act 2008 (Vic) ss 79, 108C.

EVIDENCE – Prison informer – Whether corroboration required – Whether Pollitt direction adequate – Pollitt v The Queen [1992] HCA 35; (1992) 174 CLR 558 considered – Evidence Act 2008 (Vic) ss 164, 165.

King v Chief of Army [2012] ADFDAT 4 (28 September 2012)

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

Hawker v The Queen [2012] VSCA 219 (14 September 2012)

http://www.austlii.edu.au/au/cases/vic/VSCA/2012/219.html

CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of recklessly causing serious injury and acquitted of intentionally causing serious injury, reckless conduct endangering life and reckless conduct placing a person in danger of serious injury – Sentenced to five years’ imprisonment with a non-parole period of three years and four months – Where prior written statement excluded from evidence – Whether trial judge erred in directing the jury that they could use a witness’s answers to questions relating to the prior statement to assess credit – Whether substantial miscarriage of justice arose by virtue of trial judge permitting evidence of applicant’s disposition for violence or failing to direct jury as to the use they could make of that evidence – Applicant denied a real chance of acquittal – Conviction quashed – New trial ordered – No point of principle.

Castagna v R [2012] NSWCCA 181 (23 August 2012)

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

R v Gale; R v Duckworth [2012] NSWCCA 174 (17 August 2012)

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

DS v Regina [2012] NSWCCA 159 (26 July 2012)

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.

SH v Regina [2012] NSWCCA 79 (3 May 2012)

http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2012/79.html

CRIMINAL LAW – appeal – conviction – evidence – sexual intercourse with person aged under 10 years – complainant gave unsworn evidence – Court did not tell complainant that she should feel no pressure to agree with statements she believed were untrue – whether Evidence Act 1995 (NSW), s 13 complied with – whether non-compliance necessitates upholding appeal – whether miscarriage of justice

EVIDENCE – witnesses – competence – unsworn evidence – requirement that Court tell witness about to give unsworn evidence that he or she should feel no pressure to agree with statements that he or she believes are untrue – whether Evidence Act 1995 (NSW), s 13 complied with – whether witness competent to give unsworn evidence if not given required direction