Category Archives: s. 089

ROSS James John v R [2012] NSWCCA 207 (26 September 2012)

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

Sanchez v R [2009] NSWCCA 171 (2 July 2009)

[2009] NSWCCA 171

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”

REGINA v Bilal SKAF, REGINA v Mohammed SKAF [2004] NSWCCA 37 (6 May 2004)

[2004] NSWCCA 37

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

Jones v R [2005] NSWCCA 443 (16 December 2005)

[2005] NSWCCA 443

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

Jones v R [1997] HCA 12; (1997) 143 ALR 52; (1997) 71 ALJR 538 (3 April 1997)

[1997] HCA 12

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.

Graham v R [1998] HCA 61; 195 CLR 606; 157 ALR 404; 72 ALJR 1491 (30 September 1998)

[1998] HCA 61

    A Note to Section 66(2A) states “Subsection (2A) was inserted as a response to the decision of the High Court of Australia in Graham v The Queen (1998) 195 CLR 606.”

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.

R v Anderson [2002] NSWCCA 141 (24 April 2002)

[2002] NSWCCA 141

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)

R v Tang [2000] NSWCCA 219 (13 June 2000)

[2000] NSWCCA 219

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 [1991] HCA 34; (1991) 173 CLR 95 distinguished

R v Coe [2002] NSWCCA 385 (25 September 2002)

[2002] NSWCCA 385



witness recognises previous acquaintance as offender

nominates offender to police

subsequent photographic array

whether admissable


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


questions by trial judge

whether constituted a miscarriage of justice



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