CRIMINAL LAW – appeal against conviction – sexual intercourse without consent -whether unreasonable verdict – whether trial miscarried by denial of procedural fairness
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
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
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.
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
CRIMINAL LAW – murder – reckless indifference to human life – intoxication – unreasonable verdicts – fact finding on sentencing – standard non-parole periods
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.
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
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.
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, 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. 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 or statute 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.
 See, for example, Evidence Act 1995 (Cth), s 165.
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 
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 
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.
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
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)
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.
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
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
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
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
whether exceptional circumstances exist
Evidence Act 1995 s 165(1)(d)
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.
CRIMINAL LAW – appeal – conviction – warning to jury – delay between offence and complaint – whether trial judge failed to properly direct the jury in relation to delay in complaint
CRIMINAL LAW – appeal – conviction – warning to jury – danger of convicting on uncorroborated evidence of complainant where such evidence cannot be adequately tested because of passage of time – whether trial judge should have warned the jury in accordance with Longman v R  HCA 60, (1989) 168 CLR 79
CRIMINAL LAW – appeal – conviction – warning to jury – Longman direction – whether trial was governed by the provisions of the Criminal Procedure Act 1986, s 294AA
CRIMINAL LAW – appeal – conviction – warning to jury – Longman direction – whether trial was governed by the provisions of the Evidence Act 1995, s 165B
STATUTORY INTERPRETATION – Criminal Procedure Act 1986 – Evidence Act 1995 – transitional provisions
APPEAL – criminal – interlocutory appeal – power to take further evidence and make other judgment – appeal by way of rehearing – Criminal Appeal Act 1912 (NSW), s 5F(3A) – EVIDENCE – criminal trial – objection to the tender of recorded interviews of child – whether contaminated by suggestion – unfair prejudice – Evidence Act 1995 (NSW), s 137 – EVIDENCE – interview of child – whether affected by later hypnosis sessions – no reliance on post-hypnosis evidence – difficulties for post-hypnosis cross-examination – whether assessed under Evidence Act 1995 (NSW), s 137 or general law – PROCEDURE – criminal – objection to prosecution evidence – pre-trial hearing – Evidence Act 1995 (NSW), s 192A
Evidence Act 1995 (NSW), ss 9, 11, 55, 56, 108C, 135, 137, 165, 192A
CRIMINAL LAW – Appeal – Crown appeal – Interlocutory appeal – Evidence – Hearsay – Admissibility of representations made by witness in evidence at committal concerning facts in issue – Evidence Act 2008 , ss 59, 65(3), 65(6), 137, 165 – Evidence Act 1958, s 55AB – Justices Act 1928, s 203 – Indictable Offences Act 1848 (U.K.).
CRIMINAL LAW – Intentionally causing serious injury – Assault in prison – Whether evidence of fellow prisoner should have been excluded as rendering the trial unfair – Trial judge’s directions as to fellow prisoner’s evidence sufficient to warn jury of its dangers – Evidence of witness in a previous trial admitted pursuant to s 55AC of the Evidence Act 1958 (Vic) – Consciousness of guilt evidence did not invite circular reasoning.
CRIMINAL LAW – Sentence – Remorse and rehabilitation – Sentence of 15 years’ imprisonment with a minimum term of 12 years’ imprisonment not manifestly excessive.
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
appeal against conviction
detain for advantage
steal motor vehicle
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
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
(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;
(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;  HCA 57 at , “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  NSWCCA 109] at ).
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.
whether causal link between offender’s brain damage and offending
level of objective seriousness
significance of previous criminal record
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.
CRIMINAL LAW – appeal – appeal against conviction – sexual assault – particular grounds of appeal – misdirection and non-direction – direction where accused disadvantaged by delay in complaint – whether Longman warning adequate – requirements of Longman warning – whether a warning required in terms – whether particular words required
INTERPRETATION – amendment to s 294 Criminal Procedure Act – transitional provisions – transitional provisions not to apply to proceedings commenced before the commencement of the amendments – when proceedings commence
WORDS & PHRASES – “proceedings” – “caution” – “warning” – “in terms”
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
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
Criminal law (Cth) – voir dire hearing – evidence of certain conversations of the accused, procured by means of listening devices – difficulty in discerning some of the detail of the spoken content of certain of the tape recordings – settled written transcripts of all of the admissible material of the relevant recorded conversations prepared by prosecution – consideration of evidentiary status, if any, of the transcripts in question – whether transcripts in question should be made available to the jury other than whilst the related tapes are actually being played over in court in the course of evidence – whether transcripts ought to be taken by the jury into the jury room whilst deliberating – whether permitting the jury to take the transcript into the jury room whilst deliberating would result in a situation in which the written transcripts may influence the deliberations of the jury in a way which was out of all proportion to their real weight – whether in practical terms, this could produce a situation in which the transcript might be regarded as in some way unduly strengthening what would otherwise be the purely oral/audio material and the oral evidence – consideration of proper exercise of judicial discretion in circumstances. IN GENERAL Criminal law (Cth) – voir dire hearing – evidence of certain conversations of the accused, procured by means of listening devices – difficulty in discerning some of the detail of the spoken content of certain of the tape recordings – settled written transcripts of all of the admissible material of the relevant recorded conversations prepared by prosecution – consideration of evidentiary status, if any, of the transcripts in question.
“Status of transcripts
13 In considering the issue advanced by the accused it is necessary, at the outset, to direct attention to the evidentiary status, if any, of the transcripts here in question.
14 As appears from the judgment in Eastman v The Queen (1997) 76 FCR 9, transcripts of this type will attract the provisions of s 48 (1) (c) of the Evidence Act 1995 (Cth) in certain cases. However, this provision is not applicable in the instant case, by reason of ss 4 and 5 of that statute. It operates only in relation to proceedings in a federal court or in an ACT court; and also certain specified types of proceedings in other Australian Courts. This is not a proceeding of that class.
15 The status of the transcripts therefore falls to be determined by reference to the principles of the common law.”
[This decision seems to have been removed. It can still be located at LexisNexis]
CRIMINAL LAW – trial by judge alone – attempt to engage in sexual intercourse without consent – act of indecency without consent – Crown case entirely dependent on complainant’s evidence – sworn denials of accused – good character evidence – not necessary for a verdict of acquittal that accused’s account is truthful – finding of not guilty entered
EVIDENCE – whether to give a Prasad direction due to insufficient evidence – some discrepancies in complainant’s evidence – complainant a truthful witness – conduct of complainant following attack highly persuasive of its occurrence – request for a Prasad direction denied
EVIDENCE – complainant’s evidence not regarded as unreliable – no serious inconsistencies in the complainant’s evidence such as to have an adverse effect – multiple complaints from the same source have no enhanced evidentiary value – evidence of good character of accused – evidence of flight from the scene not an unequivocal consciousness of guilt
Evidence Act 1995 (Cth), ss 66,102, 108, 164, 165
CRIMINAL LAW AND PROCEDURE
Convictions for sexual offences
Evidence called by Crown from spouse of the appellant
Leave to cross examine
Ruling that evidence unfavourable giving rise to grant of leave not eroneous
Direction by trial judge
Absence of objection at trial
Comment on scope of rule 4 of Criminal Appeal Rules
error of law on face of record
decision of State Parole Authority
determination not to rescind order revoking parole
reasonableness of decision
onus of proof
not accepting evidence despite finding not untruthful
whether witnesses had interest in outcome of proceedings
assessment of voice identification evidence
Criminal Law – Evidence – telephone intercepts – police cease monitoring calls for period – whether further intercepts unlawful – whether evidence inadmissible under s 137 Evidence Act. Practice and Procedure – failure to give Jones v Dunkel direction against Crown – whether miscarriage of justice – Verdict – evidence of accomplice – whether verdict unreasonable. Appeal – Certificates by trial judge under s 5(1)(b) of Crown Appeal Act – purpose of granting certificate. Sentence – Crown Appeal – Solicit to murder – failure to making finding as to objective seriousness of offence where standard non-parole period – error in finding motive mitigating – sentence manifestly inadequate.
Evidence Act – ss 38, 55, 90, 137, 138, 165
CRIMINAL LAW – trial by judge alone – evidence – identification evidence – photo-board – matters to be considered taken into account in assessing reliability.
Evidence Act 1995 (Cth), s 53, s 116, s 165
CRIMINAL LAW – s 70 Crimes Act (Cth) – former Commonwealth officer communicate contents of document which under duty not to disclose – departure from particulars – no unfairness in the manner trial conducted – misdirection of law – application of proviso
EVIDENCE – s 70 writing placed on a document – by-line in newspaper article – not within exception
Admissibility of evidence
whether police failed to comply with Regulation
state of intoxication
whether unfair to use interview in evidence.
Evidence Act 1995, ss85,90,138,165
CRIMINAL PRACTIE & PROCEDURE
Direction to Jury on Identification
Request by Crown for a warning concerning identification evidence where such evidence is favourable to accused.
Evidence Act 1995 – s116 & s165
CRIMINAL LAW & PROCEDURE
admissibility of evidence
Evidence Act 1995, ss 55, 56, 65, 81, 82, 102, 108, 135, 137, 165.
Criminal Law and Procedure – Judge’s summing up – whether warning under s 165 should be given where co-accused as a witness gives evidence implicating another co-accused.
Evidence Act 1995 – s 165
CRIMINAL LAW – sexual assault – “Why would the complainant lie?”
– whether leave to argue this ground should be granted pursuant to Rule 4.
CRIMINAL LAW – sexual assault – Crown withheld evidence of earlier complaint on misunderstanding of the law – what course to be taken.
CRIMINAL LAW – sexual assault – delay in complaint – need for a Kilby direction in the context of the Crimes Act 1900, s 405B – need for a balanced direction.
CRIMINAL LAW – sexual assault – delay in complaint – Crimes Act 1900, s 405B – whether error in specifying possible reasons for delay.
CRIMINAL LAW – sexual assault – delay in complaint – need for a Longman warning where the accused might have been precluded by delay in providing an account of his/her whereabouts at the time of the alleged events.
CRIMINAL LAW – Criminal law and procedure – sexual assault – stay of indictment – complainant unable to specify dates
Appeal and New Trial – Error of law – Process of reasoning not exposed in reasons for decision – Justice not appearing to be done – Legal professional privilege – Evidence Act 1995 section 122 – Waiver by Counsel not taking objection in cross-examination.
COURTS AND JUDICIAL SYSTEM – appeals against findings of fact – role of demeanour findings – witnesses from different cultural and ethnic backgrounds – role of probabilities and consistency with other evidence – failure to examine all material facts relevant to an issue – adequacy of reasons – explaining demeanour findings. D
Conviction and sentence appeals – child sexual assault – adequacy of Murray direction – direction on contextual or relationship evidence inadvertently raising tendency – no real risk of misuse of that evidence by jury – dates not of the essence of the offence – conduct of trial by counsel
Criminal law – appeal against conviction for murder – notice of abandonment of appeal – application for leave to withdraw notice of abandonment – evidence by person who might reasonably be supposed to have been criminally concerned – Evidence Act s 165(1)(d) – evidence by co-accused – prior consistent statement – Evidence Act s 108(3) – admissions made while in custody – separate trials – right to silence – hearsay evidence – Evidence Act s 165(1)(a) – whether manslaughter verdict available – evidence of prisoner informer – cross-examination of accused