http://www.austlii.edu.au/au/cases/sa/SASC/2000/10.html

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

[2009] NSWCCA 259

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

http://www.austlii.edu.au/au/cases/nsw/NSWSC/2009/916.html
ADMINISTRATIVE LAW
judicial review
error of law on face of record
jurisdictional error
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

[2009] NSWCCA 71

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

[2009] ACTSC 1

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

[2008] NSWCCA 310

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

[2000] NSWSC 208

CRIMINAL LAW

Admissibility of evidence

voir dire

whether police failed to comply with Regulation

state of intoxication

whether unfair to use interview in evidence.

Evidence Act 1995, ss85,90,138,165

[2001] NSWSC 1060

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

[2001] NSWSC 595

CRIMINAL LAW & PROCEDURE
voir dire
admissibility of evidence

Evidence Act 1995, ss 55, 56, 65, 81, 82, 102, 108, 135, 137, 165.

[2003] NSWSC 1050

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

http://www.austlii.edu.au/au/cases/nsw/supreme_ct/1998/699.html

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.

http://www.austlii.edu.au/au/cases/nsw/supreme_ct/1998/671.html

CRIMINAL LAW – Criminal law and procedure – sexual assault – stay of indictment – complainant unable to specify dates

[2005] NSWCA 447

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.

[2006] NSWCA 187

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

[2005] NSWCCA 396

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

[2004] NSWCCA 58

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

[2004] NSWCCA 462

Criminal law – murder – robbery in company with infliction of grievous bodily harm – robbery in company with wounding – joint criminal enterprise – common purpose – constructive murder – conditional indemnity given to witness in exchange for evidence – consciousness of guilt – grounds pertaining to directions to jury – ss 3A and 21A of Crimes (Sentencing Procedure) Act 1999 – ss 164, 165 Evidence Act 1995 – s 18 Crimes Act 1900.

[2004] NSWCCA 195

CRIMINAL LAW: Appeal against conviction – charges of homosexual intercourse and related charges – two complainants – whether evidence relating to each admissible in the case of the other as tendency evidence – whether other evidence available as confirmatory of complainants’ evidence – adequacy of judge’s directions about confirmatory evidence.

Application for leave to appeal against sentence – whether sentence on one count in compliance with Pearce v The Queen. Whether special circumstances should have been found in applicant’s subjective case.

[2004] NSWCCA 109

CRIMINAL LAW – sexual assault – complainant daughter of appellant – delay in complaint – necessity for Kilby direction – Longman direction – sufficiency of – multiple counts – different verdicts – whether inconsistent – summing up – directions on onus of proof – whether misleading or confusing – proviso – CRIMINAL LAW – sexual assault – date of offence – legislative changes – offence not in existence at date of offence – fellatio not carnal knowledge – CRIMINAL LAW – sentencing – sexual assault – complainant daughter of appellant – EVIDENCE – limiting cross-examination of complainant – whether any miscarriage of justice

Evidence Act 1995 s 41

[2003] NSWCCA 74

[2003] NSWCCA 402

Criminal law – appeal – inconsistant verdicts – applicable principles – directions to juries

[2003] NSWCCA 362

Criminal Practice & Procedure

inconsistent verdicts

unreasonableness of verdict

use of doubt on one count when resolving issues on other counts

pressure on jury to reach verdict

recklessness in context of consent to sexual intercourse

directions on complaint evidence cf accused’s denials

[2003] NSWCCA 301

CRIMINAL LAW – murder – appeal against conviction – whether failure of trial judge to exclude evidence or issue a warning to the jury in relation thereto resulted in a miscarriage of justice

EVIDENCE – whether evidence should have been excluded under s137 – whether trial judge should have issued a s165 or Longman warning in relation to evidence due to medical condition of witness – whether failure of trial judge to do so resulted in a miscarriage of justice – where defence counsel at trial had not sought exclusion or warning

PRACTICE – whether direction by trial judge to jury gave impression that he thought the accused was guilty – whether an error in directions resulted in the jury being misdirected

Evidence Act 1995 s137, s165

[2003] NSWCCA 259

Longman directions – Purpose – Form and content – No specific form of words required – Credibility evidence – admissibility and relevance.

[2003] NSWCCA 224

Evidence of complaint in sexual cases – inconsistent verdicts

[2005] NSWCCA 170

Criminal Law – appeal against conviction – aggravated break and enter and commit serious indictable offence – plea of not guilty – whether trial judge erred in admitting surveillance log book into evidence – whether trial judge erred by admitting voice identification evidence – admission of expert evidence.

Evidence Act 1995 – s 55, 56(1), 79,135, 137, 165(1)(b), 165(2),177

Criminal law — police not using video recorder present at scene during critical part of search — verdict unsupportable — correct procedures on search — inconsistent police evidence

[2002] NSWCCA 469

aggravated sexual intercourse without consent

attempted sexual intercourse without consent

assault with acts of indecency

verdicts of guilty on two counts, not guilty on three counts

alleged inconsistency of verdicts

directions to jury

effect of doubt concerning credibility or reliability in relation to one count, or more than one count, in relation to other counts

jury question concerning withdrawal of consent

verdicts

evidence of tape recorded telephone conversations between complainant and appellant

[2002] NSWCCA 376

CRIMINAL LAW

summing up

circumstantial evidence

directions

CRIMINAL LAW

evidence

admissibility

immunity sought by accused re offences charged

whether such evidence likely to be unreliable

whether subject to public interest immunity

CRIMINAL LAW

evidence

admissibility

results of execution of search warrant

CRIMINAL LAW

sentencing

maliciously damage property by means of explosives

potential physical injury to other persons

relevance

severity

special circumstances.

Evidence Act 1995, ss 135, 137, 165

[2002] NSWCCA 248

Criminal law

sexual intercourse without consent

relationship evidence

distress

warnings

Evidence Act, 1995 s135, s137

[2002] NSWCCA 212

Criminal law – indecent assault – complainant aged between four and eleven years at time of alleged incidents – delay in complaint – ‘Longman’ direction – whether jury adequately warned of danger in convicting appellant because of danger of mistaken recollection and forensic disadvantage to appellant due to delay in complaint – whether conviction erroneous – scope of principle in Longman v R [1989] HCA 60; (1989) 168 CLR 79

[2002] NSWCCA 193

MANSLAUGHTER – S6(1) of Criminal Appeal Act 1912 – s116 Criminal Procedure Act 1986 – statements read to jury – warning about weight to be given to deposition evidence – dock/court identification – warning about weight to be given to identification – verdict of jury unreasonable – dangerous to allow conviction to stand

[2002] NSWCCA 147

Direction – inference from flight – burden of proof

[2001] NSWCCA 504

CRIMINAL LAW

DNA evidence

Paternity Index

Relative Chance of Paternity

“Prosecutor’s Fallacy”

CRIMINAL LAW

directions

use to be made of DNA evidence

CRIMINAL LAW

DNA evidence

errors committed at trial

conviction inevitable

application of the proviso

[2000] NSWCCA 74

Admissibility — Tendency evidence — Evidence admissible for another purpose

[2000] NSWCCA 531

Criminal law

sexual assault

indecent assault

directions to the jury

multiple counts

evidence of separate complaints

unsafe and unsatisfactory

Evidence Act 1995 (NSW) ss 137, 165

[2000] NSWCCA 330

CRIMINAL LAW- appeals – appeal against conviction – appeal against sentence – robbery – directions to jury – identification evidence – sufficiency of directions concerning photographic evidence – Jones and Dunkel direction – aggravating circumstances in sentencing.

[1999] NSWCCA 94

CRIMINAL LAW – appeals – appeal against conviction

CRIMINAL LAW – verdicts – error of law or miscarriage of justice under s 6(1) Criminal Appeal Act 1912

CRIMINAL LAW – directions to jury – whether judge misstated evidence in summing up.

EVIDENCE – identification – admissibility of photographs – probative value or unfair prejudice.

EVIDENCE – identification – whether warning as to picture identification to be given in absence of request from defendant.

Evidence Act 1995 (NSW) ss 115(7), 137, 165

[1999] NSWCCA 112

CRIMINAL LAW; direction to jury;corroboration

CRIMINAL LAW; direction to jury; onus of proof; motive to lie; falsification of evidence

CRIMINAL LAW; verdict unreasonable or not supported on evidence; evidence by adult of childhood events given after long delay

CRIMINAL LAW; cross-examination of accused

[2002] NSWCCA 30

EVIDENCE – bones found – on Crown case were bones of accused’s wife – DNA analysis – likelihood ratio 660,000 times more likely to obtain DNA profile found in bones of child of wife’s parents than if bones of a child of a random mating in the Australian population – left to jury that 660,000 to one chance that were bones of wife rather than any other person – and that 660,000 to one chance that evidence of persons seeking the wife alive were accurate and reliable – prosecutor’s fallacy – summing-up failed to correct it – conviction quashed. D.

[2001] NSWCCA 290

CRIMINAL LAW – sexual offences – appeal against conviction – whether five verdicts of guilty returned by the jury unreasonable having regard to one verdict of not guilty – Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439

CRIMINAL LAW – sexual offences – appeal against conviction – directions of trial judge to jury – whether adequate direction relating to relevance of delay in complaint to credibility of complainant – where significant delay between commission of offences and complaint – whether adequate direction given relating to relevance of acquittal on any count to credibility of complainant on all counts

CRIMINAL LAW – sexual offences – appeal against conviction – whether question asked by jury about complainant’s motivation for complaint suggested impermissible process of reasoning – where significant delay between commission of offences and complaint – whether trial judge’s response to question was adequate.

[1999] NSWCCA 259

CRIMINAL LAW – appeal against conviction and sentence – EVIDENCE – admissibility of evidence – exercise of right to silence and refusal to give blood sample – appropriate directions given by trial judge during trial and in summing up

Evidence Act 1995, ss 164(3), 165, 165(2)

[2003] NSWCCA 82

CRIMINAL LAW – JURY – juror inadvertently exposed to inadmissible evidence – whether falure to discharge jury – whether incident gave rise to reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not, or will not discharge its task impartially – whether direction adequate to correct any prejudice or perception of prejudice to the accused

EVIDENCE – whether decision to allow witnesses to give evidence by videolink infringed the right of the accused to a fair trial – whether s 20A of the Evidence (Audio and Audio Visual Links) Act 1998 provides that an accused must be able to see witnesses in all circumstances – whether accused has a fundamental right to confront accuser where issues of identity involved – whether trial judge properly balanced the forensic disadvantage suffered by the accused with the rights of witnesses – whether the decision to allow the witnesses to give videolink evidence prevented the accused from attending a part of the proceedings (Supreme Court Rules Part 75 rule 2(8)(b))

EVIDENCE – whether inadequate direction as to lies – whether inadequate direction as to accomplice evidence

LEGISLATION CITED:

Evidence Act 1995, ss 55, 56, 87(1)(b) and (c), 108(3)(b), 137, 164, 165(1), (1)(d), (2)(a) (b) and (c), (3),(4) and (5)

Evidence (Audio and Audio Visual Links) Act 1998,

ss 5(1A), 5(2), 5B(1), 5B(2)(a), (b), (c) and (d), (2A), (3), 20A(a)

Evidence (Children) Act 1997

Supreme Court Rules (Part 36 rule 2A(1) and Part 75 rule 2(8)(b)

European Convention on Human Rights Article 6

Charter of Rights and Freedoms (Canada)

[2004] NSWCCA 16

Conviction appeal

deemed supply of traffickable quantity of heroin in possession of co-accused

circumstantial evidence

sufficiency of evidence of joint possession

evidence incapable of justifying verdict

acquittal entered

[2003] NSWCCA 121

CRIMINAL LAW

manslaughter

mother’s refusal to seek medical treatment for child

duress

Battered Wife Syndrome

sufficiency of summing up

relating evidence to issues in the trial

lies

CRIMINAL LAW

sentencing

manslaughter

mother’s refusal to seek medical treatment for child

assistance to authorities

possibility of serving sentence on protection

Evidence Act 1995, s 165

[1999] NSWCCA 184

Criminal Law – whether direction necessary that it would be dangerous to convict on uncorroborated evidence of an accomplice.

Evidence Act s 164, 165(1)(d), (4), 165(2)(c)

[2004] NSWCCA 190

Joint trial

whether separate trials should have been ordered

whether miscarriage resulted

relevant principles

appeal allowed

Evidence Act 1995 s165

[2003] NSWCCA 227

CRIMINAL LAW – murder – directions to jury – directions about lies – consciousness of guilt – application to discharge jury – whether refusal to hear counsel prior to jury deliberations an error – whether verdict unreasonable and/or could not be supported on the evidence – whether miscarriage of justice.