Category Archives: s. 041

Woods (a Pseudonym) v The Queen [2014] VSCA 233 (26 September 2014)

CRIMINAL LAW – Conviction – Sexual offending – Father and daughter – Incest – Whether evidence of two separate incidents – Sufficiency of directions – Defence case that complainant had a motive to lie – Whether prosecutor’s response in addressing jury suggested they should accept complainant unless it likely she was lying – Statement by prosecutor in address as to what is ‘usual’ in these cases – No miscarriage.

R v Forsyth [2013] ACTSC 174 (30 August 2013)

CRIMINAL LAW – PARTICULAR OFFENCES – Offences Against the Person – assault occasioning actual bodily harm – accused claimed to have acted in self-defence – accused did not believe that it was necessary to act as he did in self-defence – any belief that it was necessary in self-defence to act as the accused did was not reasonable – self-defence excluded beyond reasonable doubt by evidence accepted by court – accused found guilty of assault occasioning actual bodily harm.

Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713 (29 June 2012)

CRIMINAL LAW – assault – summary hearing in Local Court – charge dismissed – prosecution appeal against dismissal – Magistrate did not permit prosecutor to call certain witnesses – whether denial of procedural fairness – whether error of law in Magistrate’s approach to dismissal of charge – whether Magistrate failed to give reasons required by law – duties of Magistrate at defended criminal hearing – error of law and denial of procedural fairness established – matter remitted to Local Court for hearing before a different Magistrate

40. Of course, the progress of a hearing will depend upon the issues arising for determination during the trial, including the question as to whether, as a matter of law, there is no prima facie case at the close of the prosecution case. This involves application of well-recognised principles: Director of Prosecutions v Elskaf [2012] NSWSC 21 at [47]. If there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the tribunal of fact in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left for decision by the tribunal of fact. A verdict of not guilty may be entered at the conclusion of the prosecution case only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty: Doney v The Queen [1990] HCA 51; 171 CLR 207 at 212, 214-215. The principle remains the same whether application is made for an acquittal at the end of the prosecution case where trial is proceeding before Judge and jury, or where trial is proceeding before a Judge or Magistrate sitting alone.

41. The duty of a trial Judge, whether sitting with a jury or sitting alone, has been repeatedly stated and is well understood. In Crompton v The Queen [2000] HCA 60; 206 CLR 161, Gleeson CJ said at 173 [19]:

“Fifthly, in a common law system the adversarial procedure is bound up with notions of judicial independence and impartiality. A criminal trial is conducted before a judge (sitting with or without a jury) who has taken no part in the investigation of the offence, or in the decision to prosecute the offender, or in the framing of the charge, or in the selection of the witnesses to be called on either side of the case, and whose capacity to intervene in the conduct of the trial is limited. One of the objects of a system which leaves it to the parties to define the issues, and to select the evidence and arguments upon which they will rely, is to preserve the neutrality of the decision-making tribunal. Courts are hesitant to compromise features of the adversarial system which have implications fundamental to the administration of justice.”

42. A criminal trial is not an inquisition. It is for the parties to act as protagonists in the trial with the judge to “take no part in that contest, having his [or her] own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law”: Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 517 (Barwick CJ).

43. These principles have been stated repeatedly in decisions such as Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265; 207 A Crim R 362 at 369 [28].

44. In Director of Public Prosecutions (NSW) v Yeo [2008] NSWSC 953; 188 A Crim R 82, the Court said at 95-96 [58]:

“Criminal proceedings are conducted as adversarial litigation: Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at 618-619 [9]. The role of the presiding Judge is to hold the balance between the contending parties without himself or herself taking part in their disputation. The Judge does not exercise an inquisitorial role in which he or she seeks to remedy the deficiencies in the case of either side, nor is part of the function of a Judge to don the mantle of prosecution or defence counsel: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 682. The fundamental task of a Judge is to ensure a fair trial: R v Meher [2004] NSWCCA 355 at [76]; Robinson v R [2006] NSWCCA 192; (2006) 162 A Crim R 88 at [138]- [140]. Although these observations were made concerning the role of the Judge in a jury criminal trial, I consider that they are equally applicable to Magistrates hearing and determining criminal proceedings in the Local Court, whether defended hearings or sentence proceedings following a plea of guilty.”

45. If the defence objects to the prosecution calling a particular witness or witnesses or adducing certain evidence from a witness or objects to the tender of physical evidence, then the Judge or Magistrate should ascertain the basis of the objection for the purpose of ruling whether the evidence ought be allowed. If necessary and appropriate for the purpose of ruling on the objection, evidence may be given on the voir dire even if proceedings are without a jury: s.189 Evidence Act 1995 ; Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; 48 MVR 78 at [107]- [112].

46. The Evidence Act 1995 applies in an adversarial context. It is the parties who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection: Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 at 9 [20] (Gleeson CJ and Hayne J).

47. There is no obligation on a trial judge to reject evidence under s.137 Evidence Act 1995 to which no objection has been taken: R v FDP [2008] NSWCCA 317 at 651-653 [23]- [30]. This reflects the role of the judge in adversarial proceedings. A statutory exception to this general principle is s.41 Evidence Act 1995 which requires a judge to reject an improper question whether or not objection has been taken: R v FDP at 652 [28]-[30] (concerning s.275A Criminal Procedure Act 1986 which is now to be found in s.41 Evidence Act 1995 ).

48. A prosecutor at a criminal trial (including a police prosecutor) is under a duty to lead the whole of the evidence to which the accused is required to make answer: Dhanhoa v The Queen at 9 [20]. The duty of the prosecutor with respect to the calling of witnesses is well known: R v Kneebone [1999] NSWCCA 450; 47 NSWLR 450 at 457-462 [39]-[56].

Wotton v Queensland [2012] HCA 2 (29 February 2012)

Constitutional law (Cth) – Operation and effect of Constitution – Interpretation – Implied freedom of political communication about government or political matters – System of representative and responsible government – Validity of ss 132(1)(a) and 200(2) of Corrective Services Act 2006 (Q) – Whether statute complies with limitations on legislative power of State – Whether the impugned law effectively burdens freedom of communicating about government and political matters – Whether provisions reasonably appropriate and adapted to serve legitimate end in manner compatible with maintenance of representative and responsible government.

Administrative law – Relationship between Judicial Review Act 1991 (Q) and determination of issues of legislative validity – Whether validity of particular conditions imposed pursuant to s 200(2) of Corrective Services Act 2006 (Q) question of constitutional law or of compliance by repository of power with statutory limits.

Words and phrases – “constitutionally prescribed system of representative and responsible government”, “effectively burdens freedom of communication”, “impermissibly burdening”, “implied freedoms”, “political communication”.

per Heydon J
44 The Revised Explanatory Statement for the Evidence Bill 2011 (ACT) repeatedly refers to s 16 of the Human Rights Act. It does so in discussing the terms of cl 17(2) of the Evidence Bill 2011 (now s 17(2) of the Evidence Act 2011 (ACT)): “A defendant is not competent to give evidence as a witness for the prosecution.” The Revised Explanatory Statement says[38]:

“The clause engages the right to freedom of expression under section 16 of the Human Rights Act 2004. However, clause 17 of the Bill constitutes a lawful restriction on the freedom of expression under section 16 of the Human Rights Act 2004 as it acts as an important essential safeguard for the defendant to have a fair trial (section 21 Human Rights Act).”

These are strange remarks about a provision which prevents the prosecution from calling defendants as witnesses in the prosecution case, while leaving defendants free to give evidence in the defence case if they wish to do so. The provision does not prevent the defendant from exercising a right to freedom of expression, if that is what testifying in a desperate struggle to preserve one’s liberty involves. The calling by one party of the opposing party as a witness is not well characterised as an exercise in freedom of expression by the first party.

45 Similarly, the Revised Explanatory Statement, on the theory that the s 16(2) right to freedom of expression includes “the right to say nothing or the right not to say certain things”[39], examines cl 12 of the Evidence Bill 2011 (now s 12 of the Evidence Act 2011) in the light of s 16 of the Human Rights Act. Subject to other provisions, s 12 renders all competent witnesses compellable. This is said to be a “restriction on the right to freedom of expression” because “a witness may be compelled to answer certain questions or express certain information to the court.”[40] However, the provision is also said to be a “lawful restriction … as it is essential to ensuring the peaceful and effective functioning of society.”[41] The word “essential” is hard to square with the fact that societies have functioned peacefully and effectively with compellability regimes different from that involved in s 12.
46 The Revised Explanatory Statement engages in similar analysis for cl 41 (now s 41 of the Evidence Act 2011)[42]. Section 41 requires various kinds of improper questions in cross-examination to be disallowed. This is said to restrict the cross-examiner’s freedom of expression. On that basis any exclusionary rule of evidence would limit the freedom of expression of the party asking a question or tendering a document or thing which the rule requires to be rejected. Yet the Revised Explanatory Statement does not analyse every exclusionary rule in that light.
47 The Revised Explanatory Statement raises various questions in relation to the first Lange limb. Does s 17(2) of the Evidence Act 2011 fall within it? Do any of its equivalents in the Evidence Act 1995 (Cth), the Evidence Act 1995 (NSW), the Evidence Act 2001 (Tas) and the Evidence Act 2008 (Vic) do so? Indeed, does any provision in those enactments which restricts the capacity of a party to tender evidence fall within the first Lange limb? Are common law rules of evidence which restrict the capacity of a party to tender evidence to be modified after applying the second Lange limb because they fall within the first Lange limb?

55 On Callinan J’s approach, the Evidence Acts, for example, offer no “realistic threat” to the relevant freedom and do not burden it within the meaning of the first Lange limb. And on Callinan J’s approach neither of the legislative provisions challenged in this case creates a “burden” within the meaning of the first Lange limb.

R v SH, MV and KC [2011] ACTSC 198 (17 November 2011)

EVIDENCE – witnesses – unfavourable witnesses – advanced rulings on whether leave should be given to cross-examine witnesses.

EVIDENCE – witnesses – unfavourable witnesses – test for granting leave to cross-examine witnesses.

Evidence Act 1995 (Cth), ss 11, 38, 41, 55, 135, 137, 192, 192A

Canberra Residential Developments Pty Ltd v Brendas [2010] FCAFC 125 (24 September 2010)

EQUITY – director – fiduciary duties – company acting as agent for a joint venture – whether director can act in competition with the principal

PRACTICE AND PROCEDURE – evidence – cross examination – cross examination by two counsel – when permitted

Evidence Act 1995 (Cth) ss 27, 29(1), 41(1)(b)

Hood v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 555 (4 June 2010)

18. It was next contended, under this head, that the Tribunal had “allowed and engaged itself in cross-examination of the applicant by asking improper questions”. In support of that contention, I was referred to s 41 of the Evidence Act 1995 (Cth), as well as to Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 and Rees v Bailey Aluminium Products Pty Ltd [2008] VSCA 244; (2008) 21 VR 478.
19. The short answer to this contention is that the Tribunal is not bound by the rules of evidence; see s 33(1)(c) of the AAT Act, which provides;

33 Procedure of Tribunal
(1) In a proceeding before the Tribunal:

(c) the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate.

FDP v R [2008] NSWCCA 317 (18 December 2008)

[2008] NSWCCA 317

Criminal Law – Appeal and New Trial – rule 4 – objection not taken to evidence – whether judge should have rejected evidence relying upon s 137 of Evidence Act – whether evidence prejudicial – Summing Up – whether judge failed to warn jury against tendency reasoning – Evidence – scope of s 137, whether requires judge to reject evidence where objection not taken – Sentencing – Malicious wounding and child abduction – whether sentences manifestly excessive.

Evidence Act 1995 – ss 41, 66, 116, 130, 137

R v LTP [2004] NSWCCA 109 (1 July 2004)

[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

R v KCW [1999] NSWCCA 112 (12 May 1999)

[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

R v Soto-Sanchez [2002] NSWCCA 160 (10 May 2002)

[2002] NSWCCA 160

CRIMINAL LAW – possession of prohibited imports – Customs Act 1901, s 233B – appeal against conviction – leave to appeal against sentence – whether trial miscarried – directions to jury – onus and standard of proof – evidence of good character – direction on character – cross-examination of accused without leave – offensive cross-examination of accused – D

Evidence Act, s 41, s 112, s 137, s 192

Eric Russell Picker v R [2002] NSWCCA 78 (20 March 2002)

[2002] NSWCCA 78

Impermissible cross-examination by Crown driving accused to say complainant was lying and to the effect that the reason his counsel had not asked her about certain matters was because he had recently made them up; difficulties compounded by inadequate re-examination and prosecutor’s florid address; oath against oath; credibility of complainant and accused critical

Gonzales v Regina [2007] NSWCCA 321 (27 November 2007)

[2007] NSWCCA 321

EVIDENCE – admissions by accused – giving false alibi – not recorded – whether made inadmissible by s 281 Criminal Procedure Act – whether inadmissible in absence of objection at trial – whether evidence available at trial admissible on appeal to establish inadmissability – whether accused a suspect when admissions made – relevance of some evidence.

CRIMINAL LAW – conduct of Crown Prosecutor – whether departure from standards of fairness in cross-examination and address to the jury – whether error in putting in cross-examination that accused said Crown witnesses were wrong.

SENTENCING – life sentence mandatory if culpability so extreme that community interest can only be met by a life sentence – regard to youth and possibility of rehabilitation – regard to role of Parole Board – whether sentences out of line with the pattern of sentences.

Whitehorn v R [1983] HCA 42; (1983) 152 CLR 657 (8 November 1983)

[1983] HCA 42

Criminal Law – Miscarriage of justice – Confession evidence – Indecent assault on young child – Victim not called as witness – Absence of satisfactory explanation of failure to call – Duty of prosecution concerning witnesses – Exceptions – Power of judge to direct prosecution to call witness – Power of judge to call witness – Whether conviction unsafe, unjust or dangerous – Whether denial of justice – Criminal Law Consolidation Act 1935 (S.A.), s. 353*.

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.

Libke v R [2007] HCA 30; (2007) 235 ALR 517 (20 June 2007)

[2007] HCA 30

Criminal law – Practice and procedure – Cross-examination – Appellant convicted at trial before jury of certain sexual offences against intellectually impaired person – Whether “miscarriage of justice” under s 668E(1) of Criminal Code (Q) by reason of manner in which prosecutor conducted cross-examination of appellant – Role of trial judge during the cross-examination – Application of the “proviso” in the circumstances – Requirements of Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300.

Criminal law – Practice and procedure – Directions to jury – Whether trial judge gave adequate directions on issue of consent as it related to cognitive capacity and intellectual impairment – Whether trial judge gave adequate directions on defence provided by s 216(4) of Criminal Code (Q) that accused had belief on reasonable grounds that person was not intellectually impaired.

Words and phrases – “cognitive capacity to give consent”, “intellectually impaired person”.

R v TA [2003] NSWCCA 191 (25 July 2003)

[2003] NSWCCA 191

Conviction appeal

complainant drugged

no memory of assaults which were videoed

opinion as to whether she consented or appeared to consent irrelevant

s79  Evidence Act 1995

also rightly rejected as oppressive

sentence appeal

substantial accumulation appropriate where substantive additional offence


ss 41, 78, 79  Evidence Act 1995