Category Archives: s. 106

R v GJ (No 2) [2014] ACTSC 113 (31 March 2014)

EVIDENCE – Admissibility and Relevancy – father on trial for acts of indecency against daughters – proposal to cross-examine witness on specific contents of family report prepared in Family Court proceedings – no proposal to call author of report – mother’s evidence is that report is inaccurate not unfavourable – mother giving evidence through interpreter – no proposal to tender whole report – whether proposed cross-examination about impact of selected parts of report would cause unfairness – whether contents of report admissible as relevant to mother’s credibility – whether mother’s credibility would be affected by her opinion of impact of family report – probative and prejudicial value of parts of family report selected to be subject of cross-examination because they are said to be unfavourable to mother – directions to limit use of evidence not adequate to address prejudice – cross-examination not permitted about specific contents of family report.

Doyle v R; R v Doyle [2014] NSWCCA 4 (20 February 2014)

CRIMINAL LAW – appeal against conviction – sexual offences alleged by multiple complainants – tendency evidence – circular or coincidence reasoning – whether the trial judge misdirected the jury as to tendency.
CRIMINAL LAW – appeal against conviction – evidence of complaint – whether the trial judge erred in admitting evidence of complaint or misdirected the jury regarding the use to be made of complaint evidence.
CRIMINAL LAW – appeal against conviction – sexual experience of complainant – s 293 Criminal Procedure Act 1986 – whether error in refusing leave to cross-examine complainant about sexual experience.
CRIMINAL LAW – appeal against conviction – s 38 Evidence Act 1995 – whether the trial judge erred in allowing the prosecutor to cross-examine and obtain supplementary evidence – whether error in directions.
CRIMINAL LAW – appeal against conviction – whether the trial judge erred in declining re-examination to re-establish credibility.
CRIMINAL LAW – appeal against conviction – whether impermissible cross-examination of the appellant’s character witnesses.
CRIMINAL LAW – appeal against conviction – whether summing up was fair and balanced – whether the trial judge failed to adequately put the defence case to the jury.
CRIMINAL LAW – Crown appeal against sentence – whether the trial judge failed to appropriately accumulate the sentences leading to manifest inadequacy.

Taylor v Owners – Strata Plan No 11564 [2013] NSWCA 55 (18 March 2013)

DAMAGES – claims under the Compensation to Relatives Act 1897 (NSW) – limit on the “claimant’s” income to which a court may have regard when calculating future loss of economic support – whether limit applies to claims under the Compensation to Relatives Act – whether deceased person is a “claimant” – whether appropriate for court to insert words not used by the Parliament – Civil Liability Act 2002 (NSW), s 12

STATUTORY INTERPRETATION – principles – whether words may be read into a provision to qualify the literal meaning – proper scope of a purposive construction

WORDS & PHRASES – “claimant” – “relate to”

Ewin v Vergara [2012] FCA 1240 (9 November 2012)

PRACTICE AND PROCEDURE – ruling prior to trial on admissibility of evidence of proposed witnesses –
s 192A of the Evidence Act 1995 (Cth) – evidence going to the credibility of another witness inadmissible unless falls within stated exceptions – reliance upon exception in s 106 of Evidence Act premature – s 108C exception in respect of expert evidence only applies where the expert evidence deals with the capacity of the other witness to give credible evidence – proposed witness evidence inadmissible – witnesses not to be called without leave of the Court.

Evidence Act 1995 (Cth) ss 102, 106, 108C, 192A

R. v. Michael Anthony Ryan (No. 7) [2012] NSWSC 1160 (18 September 2012)

CRIMINAL LAW – evidence – whether prior inconsistent statement admissible as exception to credibility rule – evidence admissible under exception in s 106 Evidence Act – CRIMINAL LAW – evidence – whether electronically recorded interview with police should go to the jury room during deliberations – rule in Gately v The Queen [2007] HCA 55; (2007) 232 CLR 208; R v NZ [2005] NSWCCA 278; (2005) 63 NSWLR 628 – not applicable in this case – exhibit to be available to jury with direction against giving disproportionate weight to the evidence

Bateson v Chief of Army [2012] ADFDAT 3 (25 May 2012)


DEFENCE AND WAR – appeal – charges of insubordination – grounds – convictions unreasonable and cannot be supported with regard to the evidence – wrong decisions on questions of law made – material irregularity – convictions unsafe and unsatisfactory – found – no material error in conduct of trial – no error in taking into account uncharged acts – no irregularity found – mistake of fact ground – possible defence not taken into account at trial – appellant deprived of chance of acquittal – miscarriage of justice occurred – appeal allowed – convictions quashed – no retrial ordered

Coleman v The Queen [2011] VSCA 301 (12 October 2011)

CRIMINAL LAW – Incest and indecent acts with a child – Fresh evidence bearing on the credit of the complainant – Significant possibility that the jury would have acquitted the accused if the fresh evidence had been before it.

19 Counsel for the respondent concedes that the statements in the psychologist’s report constitute fresh evidence. The evidence could have been led as hearsay evidence pursuant to the provisions of s 59 of the Evidence Act or may have constituted prior inconsistent statements admissible pursuant to ss 103 or 106 of the Act. At trial the statements could have been put to the complainant. If she did not admit that she had made the statements, evidence could have been led from Dr Uebergang to prove the statements were made.

20 If the evidence had been available to counsel at trial, the trial may have proceeded differently in that there may have been cross-examination of the complainant and her mother and, depending on the evidence given by the complainant, possibly evidence given by Dr Uebergang. The cross-examination or the evidence may have affected the credit of the complainant and possibly that of the mother.

Australian Building & Construction Commissioner v Abbott (No 4) [2011] FCA 950 (22 August 2011)

INDUSTRIAL LAW – unlawful industrial action – whether there were contraventions by union officials – liability – whether breach of s 38 Building and Construction Industry Improvement Act 2005 – whether breach of Collective Agreements.
PRACTICE AND PROCEDURE – statement of claim – sufficiency of pleadings.

Evidence Act 1995 (Cth) ss 102, 106, 140(2), 190(3)

Comcare v John Holland Rail Pty Ltd (No 5) [2011] FCA 622 (3 June 2011)

PRACTICE AND PROCEDURE – whether leave to call a witness should be granted – witness sought to be called is counsel in the proceeding – application made mid-trial – Court’s power to control the calling of witness evidence – relevance of case management principles and s 37M of the Federal Court of Australia Act 1976 – whether a legitimate forensic purpose exists for the calling of the evidence – test of apparent relevance – need for applicant to demonstrate an identifiable basis to support a reasonable likelihood that evidence is available that might assist the resolution of a fact in issue – balancing process applicable where legitimate forensic purpose exists – whether strength of forensic purpose and its importance to the issues to be determined is outweighed by prejudice, delay and disruption to trial – application dismissed

Evidence Act 1995 (Cth) ss 55, 102, 106(2)(c)

Aouad and El-Zeyat v R [2011] NSWCCA 61 (8 April 2011)

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

R v CH and JW [2010] ACTSC 75 (30 July 2010)

EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – operation of s 53(4) Evidence (Miscellaneous Provisions) Act 1991 (ACT) – written reasons not required to be given before trial can proceed.

EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – operation of s 51 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – s 51(1) does not apply to evidence of complainant’s sexual activities with accused.

EVIDENCE – pre-trial application for leave to adduce evidence of complainant’s prior sexual activities – whether alleged sexual activities have substantial relevance to the facts in issue or are a proper matter for cross-examination about credit – evidence of consensual sexual activity between the complainant and another man on the night of the charges not relevant to a fact in issue – evidence of prior consensual sexual intercourse followed by a rape allegation is a proper matter for cross-examination about credit – evidence of prior consensual sexual intercourse followed by a threat to make a rape allegation is a proper matter for cross-examination about credit.

PROCEDURE – interaction of provisions dealing with pre-trial hearings (div 4.2B Evidence (Miscellaneous Provisions) Act 1991 (ACT)) with provisions dealing with admissibility of evidence of complainant’s prior sexual activities (div 4.4 Evidence (Miscellaneous Provisions) Act 1991 (ACT)) and with obligations of counsel during examination of witnesses.

Criminal Code 2002 (ACT), s 712A

Evidence (Miscellaneous Provisions) Act 1991 (ACT), ss 50, 51, 52, 53, 72, 73

Evidence Act 1995 (Cth), ss 55, 102, 103, 106

Evidence Act 1971 (ACT), s 76G(2)

Legal Profession (Barristers) Rules 2008

Worimi Local Aboriginal Land Council v Minister for Lands for the State of New South Wales (No 2) [2008] FCA 1929 (18 December 2008)

[2008] FCA 1929

NATIVE TITLE – non-claimant application under Native Title Act 1993 (Cth) seeking determination that no native title exists over land – previous claimant applications for determination that native title exists struck out for not meeting requirements of Act – previous claimant joined as third respondent under s 84(5) of the Act – third respondent opposes non-claimant application – role of Minister in proceedings – Minister has not abandoned right to participate – Minister not required to establish interest to remain a party – burden of proof – evidentiary burden – requirement to prove negative proposition on balance of probabilities – no presumption of native title – third respondent is not required to establish native title but is required to adduce evidence once applicant has adduced sufficient evidence from which the negative proposition may be inferred – third respondent has not adduced sufficient evidence to cast doubt on applicant’s case – no sufficient evidence that asserted rights and interests arise under normative system of traditional laws acknowledged and traditional customs observed – applicant entitled to determination that there is no native title over the land

Evidence Act 1995 (Cth), ss 27, 28, 106

Australian Automotive Repairers* Association (Political Action Committee) Inc v NRMA Insuranc [2004] FCA 369 (25 March 2004)

[2004] FCA 369

PRACTICE AND PROCEDURE – allegation that persons in courtroom attempted to coach witnesses as to answers to be given in witness box – leave granted to have witnesses recalled for further cross-examination as to whether they perceived any attempt to coach them, and, if so, were influenced in the testimony they gave – after further cross-examination concluded (witnesses stating that they did not observe any attempt to coach them), application for leave to file and read affidavits by persons who say they saw attempts to coach – whether affidavits should be allowed to be filed and read – collateral issue as to credit – cross-examination as to credit.

Evidence Act 1995 (Cth) ss 102, 106

Copmanhurst Shire Council v Watt [2005] NSWCA 245 (26 July 2005)

[2005] NSWCA 245

Plaintiff’s car skidded on road – hit embankment and overturned – council road works – whether loose gravel on bitumen surface – varied evidence from plaintiff’s witnesses to support yes – defendant’s witness said no – evidence that had previously said he could not remember – whether admissible as prior inconsistent statement – admissible – evidence of plaintiff’s witnesses not put to defendant’s witness – was put to defendant’s witness that he had no real recollection – whether failure to comply with rule in Browne v Dunn – no failure – whether judge’s finding of loose gravel on road appealably in error – not in error – whether causation of loss of control established – causation established – whether erred in apportionment for contributory negligence – no error. D

R v O’Driscoll [2003] NSWCCA 166 (26 June 2003)

[2003] NSWCCA 166

CRIMINAL LAW – appeal against conviction – structuring cash transactions – meaning of “transaction” – whether two or more non-reportable cash transactions – Financial Transaction Reports Act (Cth) s31

CRIMINAL LAW – evidence – whether Crown case split – whether error in allowing cross-examination by Crown on evidence of unexplained wealth – whether error in allowing Crown case in reply

R v Attallah [2005] NSWCCA 277 (25 August 2005)

[2005] NSWCCA 277

CRIMINAL LAW – an offence of supplying not less than a large commercial quantity of heroin and an offence of supplying not less than a large commercial quantity of cocaine – CONVICTION APPEAL – whether trial proceedings miscarried through the re-examination of a witness who gave evidence that she was fearful of the appellant because there had been an argument among members of the appellant’s family which had resulted in the death by shooting of a person – whether trial proceedings miscarried by reason of outbursts by the family of the appellant and the appellant himself on a number of occasions – whether the trial proceedings miscarried through the remarks and comments made by the Crown Prosecutor in the course of his closing address to the jury – whether the directions given by the trial judge on the requirement for proof of the element of quantity in charges of supplying a large commercial quantity of prohibited drugs were erroneous and inadequate – whether directions given by the trial judge as to the potential unreliability of certain witnesses were adequate – SENTENCE APPEAL – life sentence – whether manifestly excessive

R v Rivkin [2004] NSWCCA 7 (5 February 2004)

[2004] NSWCCA 7

Appeal against conviction – insider trading – appellant found guilty of contravening s1002G(2) Corporations Act 2001 – Whether miscarriage of justice – actual or ostensible bias of trial judge – former professional association – whether “personal animosity” involved in sentence – Whether trial judge erred in not directing verdict of acquittal – meaning of “information” – possession of information as particularised – materiality – Admissibility of evidence – relevance – prejudicial/probative value – medical evidence as to witness’ capacity to give reliable evidence or to present more attractively – Whether summing up unfair – judicial comment/warning – Whether verdict unreasonable – Fitness to stand trial – brain tumour – frontal lobe dysfunction – appellant’s mental state – conduct at trial – credibility – expert evidence – mental element of offence – Fresh evidence of undiagnosed meningioma – relevance on appeal to issues of fitness to stand trial, miscarriage stemming from inappropriate behaviour, mens rea and sentence – Equality before the law – law’s concerns regarding fitness is with capacity to understand and follow proceedings not with maximising capacity to present as attractive personality – sentencing in “white collar” criminal matters – court’s duty not to be swayed by “community attitudes” in particular cases as promoted by media – Appeal against sentence – whether sentence manifestly excessive – whether miscarriage of sentencing judge’s discretion – insider trading not a “victimless” crime – appellant’s public persona – good character – personal and general deterrence – finding of “contemptuous arrogance” – no contrition – impact of fresh evidence as to appellant’s medical and mental state where absence of evidence as to any change of attitude by prisoner – D

Evidence Act 1995 ss102-110

R v Soma [2003] HCA 13; 212 CLR 299; 196 ALR 421; 77 ALJR 849 (13 March 2003)

[2003] HCA 13

Criminal law – Evidence – Admissibility – Prior inconsistent statement of accused – Whether prosecution can adduce evidence of prior inconsistent statement in cross-examination of accused – Whether sound recording of applicant’s interview wrongly admitted into evidence.

Criminal law – Evidence – Complaints – Failure to object to cross-examination – Whether trial judge required to rule where failure to object.

Criminal law – Procedure – Prosecution case closed – Whether tender of prior inconsistent statement of accused evidence in rebuttal – Prosecution not permitted to split its case.

Evidence – Criminal trial – Prior inconsistent statement of accused – Whether sound recording wrongly admitted into evidence in rebuttal of prosecution case – Whether tender of sound recording impermissible attempt to split prosecution case – Complaints – Failure to object to cross-examination – Whether trial judge required to rule despite failure to object.

Evidence Act 1977 (Q), ss 18, 101, 130.

Palmer v R [1998] HCA 2; 193 CLR 1; 151 ALR 16; 72 ALJR 254 (20 January 1998)

[1998] HCA 2

Criminal law – Sexual offences – Cross-examination of accused as to whether complainant had motive to lie – Relevance – Inviting jury to speculate – Risk of reversal of onus of proof – Whether judge’s directions capable of neutralising prejudicial effect of cross-examination.

Criminal law – Sexual offences – Unsafe and unsatisfactory verdict – Alibi.

Nicholls v R, Coates v R [2005] HCA 1; 219 CLR 196; 213 ALR 1; 79 ALJR 468 (3 February 2005)

[2005] HCA 1

Criminal law – Evidence – Admissibility of admissions made off-video during interview with accused – Whether reasonable excuse for not videotaping admissions – Criminal Code (WA), s 570D(2)(b), (4).

Criminal law – Evidence – Admissibility of evidence of prior inconsistent statement of witness – Whether evidence of statement went to issue – Whether admissible as exception to rule against admission of collateral statements – Whether exceptions of bias, interest or corruption applicable – Whether the detail of alleged statement indicating an exception to the collateral evidence rule must be put specifically to the witness in cross-examination.

Evidence – Criminal trial – Prior inconsistent statement of witness – Whether admissible as exception to rule against collateral statements – Admissions allegedly made off-video during interview by police – Whether reasonable excuse for not videotaping such admissions.

Criminal law – Evidence – Whether evidence of prior inconsistent statement hearsay – Whether exception to hearsay rule.

Criminal law – Jury directions – Whether trial judge’s direction accorded with McKinney v The Queen – Appropriateness of reference to possible perjury on part of police.

Criminal law – Evidence – Admissions – Adequacy of trial judge’s direction – Whether need for McKinney direction.

Words and phrases – “interview”, “reasonable excuse”.

Criminal Code (WA), s 570D.

Evidence Act 1906 (WA), s 21.

Murphy v R [1989] HCA 28; (1989) 167 CLR 94 (30 May 1989)

[1989] HCA 28

Evidence – Criminal – Expert evidence – Confession – Opinion of psychologist that accused of limited intellectual ability – Admissibility – Listening device – Warrant to use – Regularity – Sufficiency of material before court on application for warrant – Whether relevant to admissibility of evidence – Listening Devices Act 1984 (N.S.W.), ss. 5, 13, 18(2).

Criminal Procedure (N.S.W.) – Jury – Challenge for cause – Jury Act 1977 (N.S.W.), s. 46.

Melbourne v R [1999] HCA 32; 198 CLR 1; 164 ALR 465; 73 ALJR 1097 (5 August 1999)

[1999] HCA 32

Criminal law – Evidence – Character evidence – Evidence of accused’s good character adduced – Relevance of character evidence to propensity to commit offence charged – Relevance of character evidence to accused’s credibility – Directions to jury – Whether directions about use of character evidence mandatory.

Farrell v R [1998] HCA 50; 194 CLR 286; 155 ALR 652; 72 ALJR 1292 (13 August 1998)

[1998] HCA 50

Criminal law – Expert evidence – Whether expert evidence admissible which discloses existence of mental disability likely to bear on reliability of complainant’s evidence – Whether possibility of impairment of memory by alcohol and substance abuse within experience of ordinary persons – Whether knowledge of effect of anti-social personality disorder within experience of ordinary persons.

Criminal law – Jury direction on weight to be given to expert evidence about credibility and reliability of complainant witness – Whether misdirection deprived appellant of fairly open chance of acquittal.

Criminal Code Act 1924 (Tas), s 402(2).

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 (5 June 1981)

[1981] HCA 26

Statutes – Interpretation – Literal meaning unambiguous – Draftsman’s mistake – Parliament’s intention clear from context and legislative history – Income Tax Assessment Act 1936 (Cth), ss. 80B (5), 80C (3).

Income Tax (Cth) – Deductions – Losses of previous years – Company – Holding company and subsidiary – Arrangement by continuing shareholder for purpose of enabling company to take previous year’s losses into account for deduction – Interpretation – Income Tax Assessment Act 1936 (Cth), ss. 80, 80B, 80C (3).

Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139 (22 December 2003)

[2003] TASSC 139

Appeal and New Trial – Appeal – General principles – Right of appeal – Nature of right – Appeals in the strict sense and appeals by way of rehearing – Appeals by way of rehearing – When rehearing does not involve hearing de novo – Nature of appeal from Medical Complaints Tribunal – Power to receive additional evidence.

Medical Practitioners Registration Act 1996 (Tas), ss61, 62.

In re Medical Act 1959 [1973] Tas SR 43; A v Law Society of Tasmania [2001] TASSC 55; (2001) 10 Tas R 152, referred to.

Aust Dig Appeal and New Trial [9]

Appeal and New Trial – Appeal – General principles – Admission of fresh evidence – In general – What evidence would ground successful appeal – Appeal from statutory disciplinary tribunal.

Medical Practitioners Registration Act 1996 (Tas), ss61, 62.

Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435, followed.

Gallagher v R [1986] HCA 26; (1986) 160 CLR 392; Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259, distinguished.

Aust Dig Appeal and New Trial [85]

Professions and Trades – Medical and related professions – Medical practitioners – Discipline and removal from and restoration to Register – Procedure, evidence and appeal – Tasmania – Appeal to Supreme Court – Nature of appeal – Further evidence.

Medical Practitioners Registration Act 1996 (Tas), ss61, 62.

In re Medical Act 1959 [1973] Tas SR 43; A v Law Society of Tasmania [2001] TASSC 55; (2001) 10 Tas R 152, referred to.

Aust Dig Professions and Trades [189]

Frank Robert Ielo & Ors v Marbrook Holdings & Ors [1998] FCA 168 (5 March 1998)

[1998] FCA 168  TRADE PRACTICES – Consumer protection – misleading or deceptive conduct – negligence – fraud – sale of fruit business – representations – reliance – damages.

EVIDENCE – Non-calling of a witness by a party – whether an inference can be drawn from a failure to call a witness – prior inconsistent statement – whether necessary to prove a prior inconsistent statement when inconsistency not admitted.

Evidence Act 1995  (Cth) ss 43, 45, 60 and 106

Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886 (21 December 2000)

  [2000] FCA 1886

EVIDENCE – tendency evidence – application to adduce evidence of representations made to other prospective tenants of respondent’s shopping centre – whether evidence “tendency evidence” within s 97 of Evidence Act 1995 (Cth) – whether primary judge erred in holding that the evidence lacked “significant probative value” – test for determining whether tendency evidence has “significant probative value”.

EVIDENCE – “credibility rule” in s 102 of  Evidence Act 1995  (Cth) – refusal to permit cross-examination on representations allegedly made to other prospective tenants – whether cross-examination relevant for reason other than credibility – whether evidence from cross-examination would have had “substantial probative value” in relation to credibility.

WORDS AND PHRASES – “significant probative value” – “substantial probative value”.

Evidence Act 1995  (Cth), ss 55, 56, 95, 97, 98, 101, 102, 103, 106, 108, 135, Dictionary.

Klewer v Walton [2003] NSWCA 308 (14 October 2003)

[2003] NSWCA 308

PROCEDURE – Adjournments – Unrepresented litigant involved in other proceedings – Request for adjournment in late communication to other party – No communication to or appearance in court – Adjournment refused.

EVIDENCE – Hearsay – Previous written statement by witness called by party – Leave to cross-examine sought and refused – Whether an error vitiating decision.


Evidence Act 1995  ss.38, 43, 45, 60, 106, 192

Australian Trade Commission v Underwood Exports Pty Ltd [1997] FCA 1060 (17 October 1997)

[1997] FCA 1060

ADMINISTRATIVE LAW – Administrative Appeals Tribunal – Tribunal’s duty to make findings on material questions of fact under s 43(2B) of the Administrative Appeals Tribunal Act 1975 – role of Court on judicial review is not to analyse Tribunal’s decision minutely – Tribunal required in these circumstances to make specific findings on the central question – failure of Tribunal to do so – remitted to Tribunal for further consideration.

Evidence Act 1995  (Cth), ss 103, 106, 178

Stanoevski v R [2001] HCA 4; 202 CLR 115; 177 ALR 285; 75 ALJR 454 (8 February 2001)

[2001] HCA 4

Evidence –  Evidence Act 1995  (NSW) – Character evidence – Accused raised own good character – Judicial discretion to allow cross-examination of accused on alleged past misdeeds not directly related to facts in issue – Whether discretion to allow cross-examination miscarried.

Words and phrases – “good character” – “credibility” – “leave, permission or direction” – “unfairness”.

Evidence Act 1995  (NSW), ss 55, 56, 102, 104, 106, 112, 135, 192.

R v Murray [2001] NSWCCA 289 (30 July 2001)

CRIMINAL LAW – sexual offence – appeal against conviction – whether one verdict of guilty unreasonable in light of five verdicts of not guilty – where evidence corroborative of complainant on count on which convicted but no corroboration on other counts

CRIMINAL LAW – sexual offence – appeal against conviction – directions to jury – whether warning given by trial judge regarding delay in complaint was adequate – whether should have been a warning of the danger of convicting on the evidence of the complainant alone – where jury did not convict in absence of corroboration – whether direction regarding possible unreliability of witnesses adequate – where evidence given of events occurring when witness was a young child – s165  Evidence Act 1995

CRIMINAL LAW – sexual offence – appeal against conviction – fresh evidence – whether new evidence admissible – where new evidence went only to credit of complainant – s106(d)  Evidence Act 1995

CRIMINAL LAW – sexual offence – application for leave to appeal against sentence – whether appropriate to sentence on standards at time of commission of offence or time of conviction – where long delay between the commission of the offence and conviction.

3WJ Pty Ltd & Anor v Kanj [2008] NSWCA 321 (24 November 2008)

[2008] NSWCA 321

EVIDENCE – credibility – surprise rule – where trial judge refused to allow the appellants to call witnesses impugning credibility of respondents’ witness – whether pleadable accusation of fraud
EVIDENCE – prior inconsistent statement – cross examination of own witness – whether trial judge had regard to matters set out in s 192 of the  Evidence Act 1995

R v Galea [2004] NSWCCA 227 (28 July 2004)

[2004] NSWCCA 227

CRIMINAL LAW – Appeal against conviction – Accessory after the fact to murder – Where defence case was that a known person had, to the exclusion of the accused, committed the offence – Directions to jury regarding the onus of proof – Directions to jury regarding the standard of proof – Directions to jury regarding possible deficiencies in the police investigation – Effect of rule 4 of the Criminal Appeal Rules (NSW) – EVIDENCE – Expert opinion evidence – Expert opinion regarding the effect of drug use generally – Whether expert opinion going to a fact in issue – s 55 of the  Evidence Act 1995  (NSW) – Credibility evidence – ss 102, 103, 104 and 106 of the  Evidence Act 1995  (NSW) – Tendency evidence – s 97 of the  Evidence Act 1995  (NSW) – Refusal to allow cross-examination of witness regarding criminal conviction – Admissibility of digital audio tape recordings – Ad hoc expert – Where some recordings indistinct and unintelligible.

Evidence Act 1995  (NSW), ss 55, 97, 102, 103, 104, 106