NATIVE TITLE – summary dismissal – authorisation of applicants – claimant group
CRIMINAL LAW – appeal against conviction – appellant convicted on 24 counts of sexual offences – appellant charged jointly or severally with complainant’s mother – appellant and complainant’s mother tried together – clear directions given by trial judge about use of evidence – no miscarriage of justice in joint trial
CRIMINAL LAW – appeal against conviction – evidence – admission of record of interview – trial judge declined to exclude parts of interview to which appellant answered “no comment” – trial judge declined to exclude evidence of medical examination – evidence not prejudicial or irrelevant – clear directions given by trial judge – no miscarriage of justice
CRIMINAL LAW – appeal against conviction – inconsistent verdicts – appellant acquitted on two counts at trial – evidence on all counts primarily that of complainant – acquittal on two counts not necessarily indicative of doubts about complainant’s overall veracity – jury properly instructed – sound possible evidential bases for acquittal on two counts and conviction on 24 other counts – verdicts not inconsistent
CRIMINAL LAW – evidence – confessions and admissions – right of silence – right at general law and under section 89 Evidence Act – whether trial judge’s direction to the jury infringed the accused’s right of silence – distinction between common law right of silence and section 89 Evidence Act – CRIMINAL LAW – appeal and new trial and inquiry after conviction – appeal and new trial – particular grounds – misdirection and non-direction – general matters – failure to take objection to misdirection infringing the accused’s right of silence – operation of rule 4 Criminal Appeal Rules – whether misdirection as to the right of silence is a fundamental error leading to a miscarriage of justice – WORDS AND PHRASES – “right of silence” – “right to silence”
Criminal law – sexual offences – identification issues – Evidence Act, s116 – rule 4 – directions as to meaning of “beyond reasonable doubt” – impact of media publicity upon fair trial – directions about suspect’s refusal to answer questions in ERISP – directions about lies – consciousness of guilt directions – complainant’s evidence as to belief of accused’s guilt in matter involving inference – juror misconduct – unauthorised view and experiment – admissibility of evidence of same – appropriate directions to juries prohibiting independent enquiries (D)
Evidence Act, ss53, 76, 78, 89, 95, 97, 101, 116
Admissibility — Admissions — Statements made after caution
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)
accused’s right to silence
whether breached by Crown Prosecutor’s closing address
whether consequent direction appropriate.
appeal against conviction
malicious wounding with intent to do grievous bodily harm
whether the trial miscarried as a consequence of the Crown’s cross-examination and address to the jury
whether the trial miscarried as a consequence on the trial judge’s directions to the jury in respect of the evidence of one witness
silence of a witness
s 89 of the Evidence Act 1995
right to silence
Criminal Law – Evidence – Silence of accused – No basis for inferring consciousness of guilt – Previous silence about defence raised at trial – Whether basis for inferring recent invention – Persistence until trial in false version of events – Permissible inferences – Directions to jury.
Criminal law – Evidence – Complaints – Appellant convicted of rape and attempted rape – Evidence of recent complaint adduced – No direction by trial judge concerning complaint – Necessity for direction about use of complaint – Whether absence of direction a miscarriage of justice – Whether direction required for modern juries or capable of being understood by them.
Criminal Law – Evidence – Hearsay – Exception to Hearsay Rule – Complaint of sexual assault – Prior complaint evidence – Whether complaint made when facts “fresh in the memory” of complainant.
Criminal Law – Evidence – Credibility – Exception to Credibility Rule – Whether evidence fabricated – Discretion to admit prior consistent statement – Factors affecting discretion.
Words and Phrases – “fresh in the memory”.
Evidence Act 1995 (NSW), ss 66, 108, 192.
Appeal on conviction – identification – whether trial miscarried due to cross-examination of the appellant in relation to his failure to inform the police about a person he alleged was the assailant – right to silence - Evidence Act 1995 s 89 – whether appellant ought to have answered questions during course of official questioning – whether prosecutor ought to have implied defence was fabricated because it was raised late – whether directions by judge were adequate. (ND)
Possession of heroin found in premises
whether premises jointly occupied
whether appellant had possession
effect of failure to mention other occupant on arrest
accused alleged he did mention, denied by police
whether jury can take omission into account
R v Petty & Maiden  HCA 34; (1991) 173 CLR 95 distinguished
witness recognises previous acquaintance as offender
nominates offender to police
subsequent photographic array
adequacy of directions
right to silence
cross-examination of accused
failure to inform police of alibi when arrested
witness identifies accused as offender
not sure at trial
witness cross-examined as unfavourable witness
previous statements evidence of facts asserted therein
CRIMINAL LAW & PROCEDURE
questions by trial judge
whether constituted a miscarriage of justice
CRIMINAL LAW & PROCEDURE
judge summarising Crown submissions on fact
submission not available in law
failure of judge to correct.
Evidence Act 1995 , ss 38, 89, 116, 137, 165