Category Archives: s. 165

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

R v Vulovic (No. 3) [2012] NSWSC 211 (15 March 2012)

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

Wood v R [2012] NSWCCA 21 (24 February 2012)

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.

Hargraves v The Queen; Stoten v The Queen [2011] HCA 44 (26 October 2011)

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.

Braslin v Tasmania [2011] TASCCA 14 (13 October 2011)

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]

Koval v Director of Public Prosecutions (NSW) [2011] NSWSC 934 (25 August 2011)

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.

R v Bauer [2011] ACTSC 127 (16 August 2011)

http://www.austlii.edu.au/au/cases/act/ACTSC/2011/127.html

CRIMINAL LAW – trial by judge alone – assault – damage to property – discrepancies between evidence of complainants – identification evidence not reliable to establish accused’s involvement – prosecution evidence did not exclude alibi raised – reasonable doubt as to accused’s presence at the relevant occasions and times of the alleged incident – accused not guilty on all charges.

Evidence Act 1995 (Cth), Pt 3.2, ss 65(1), 65(3), 116(1)(a), 116(1) (b), 165(1) (b), 190

R v Jacka [2011] ACTSC 63 (14 April 2011)

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)

Krsteski & Anor v Jovanoski [2011] VSC 166 (29 April 2011)

http://www.austlii.edu.au/au/cases/vic/VSC/2011/166.html

APPEAL – Appeal from a decision of the Victorian Civil and Administrative Tribunal – Victorian Civil and Administrative Tribunal Act 1998 (Vic) ss 97, 98, 117 and 148 – Property Law Act 1958 (Vic) Part IV, ss 225 and 228 – Claim by co-owner for order for sale of land and division of proceeds – Cross-claim by other co-owners for order for transfer of whole of land to them – Claim against deceased’s estate – Tribunal unable to make findings on balance of probabilities – Cross-claim determined by onus of proof – Whether tribunal’s conclusion open on the evidence – Whether actual or constructive failure to exercise jurisdiction – Whether failure to give adequate reasons for decision – Appeal on cross-claim dismissed.

Lynx Engineering Consultants Pty Ltd v The ANI Corporation Limited trading as ANI Bradken Rail Transportation Group (No 5) [2011] FCA 216 (11 March 2011)

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

Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 (8 April 2011)

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