CRIMINAL LAW – conviction appeal – take without consent and indecent assault – evidence – competence of child to take oath – unsworn evidence by child – fundamental defect in giving of unsworn evidence – appeal allowed – whether verdict unreasonable and not open on the evidence – identification by child witnesses – discrepancies in their descriptions – both child witnesses identify very distinctive feature of assailant – whether open to jury to be satisfied beyond reasonable doubt as to identification of assailant – this ground of appeal dismissed – whether submissions by Crown gave rise to a miscarriage of justice – whether the trial judge gave appropriate directions to jury – no miscarriage of justice – this ground of appeal dismissed – matter remitted to District Court for new trial.
EVIDENCE LAW – Judicial Discretion to Admit or Exclude Evidence – Evidentiary Matters Relating to Witnesses – whether witness competent to give unsworn evidence pursuant to s 13 (5) Evidence Act 2011 (ACT)
APPEAL – Appeals from and Control over Magistrates – appeal upheld
ESTOPPEL – Equitable estoppel – Proprietary estoppel – not established
EVIDENCE – Competence – witness not competent to give sworn evidence – whether witness competent to give unsworn evidence – what court must tell witness – whether s 13(5) Evidence Act 2011 (ACT) requires that witness understand – whether court may inquire into witness’s understanding – witness’s lack of understanding no basis for finding witness incompetent to give unsworn evidence.
APPEAL – Application for leave to appeal against interlocutory decision – trial judge erred in finding complainant incompetent to give unsworn evidence – appeal allowed – admissibility of complainant’s evidence remitted to trial judge.
Criminal law – Evidence – Trial by judge alone – Appellant convicted of aggravated indecent assault of granddaughter (“CD”) – CD aged three years at time of alleged offence – Appellant gave sworn evidence denying offence – CD’s unsworn statement only evidence of offence – Trial judge did not record any finding respecting appellant’s evidence – Whether reasons sufficient to make clear appellant’s evidence rejected beyond reasonable doubt – Whether CD’s evidence reliable – Whether evidence sufficient to prove offence beyond reasonable doubt.
CRIMINAL LAW – Application for leave to appeal against conviction – Applicant convicted of recklessly causing serious injury and acquitted of intentionally causing serious injury, reckless conduct endangering life and reckless conduct placing a person in danger of serious injury – Sentenced to five years’ imprisonment with a non-parole period of three years and four months – Where prior written statement excluded from evidence – Whether trial judge erred in directing the jury that they could use a witness’s answers to questions relating to the prior statement to assess credit – Whether substantial miscarriage of justice arose by virtue of trial judge permitting evidence of applicant’s disposition for violence or failing to direct jury as to the use they could make of that evidence – Applicant denied a real chance of acquittal – Conviction quashed – New trial ordered – No point of principle.
CRIMINAL LAW – appeal – conviction – evidence – sexual intercourse with person aged under 10 years – complainant gave unsworn evidence – Court did not tell complainant that she should feel no pressure to agree with statements she believed were untrue – whether Evidence Act 1995 (NSW), s 13 complied with – whether non-compliance necessitates upholding appeal – whether miscarriage of justice
EVIDENCE – witnesses – competence – unsworn evidence – requirement that Court tell witness about to give unsworn evidence that he or she should feel no pressure to agree with statements that he or she believes are untrue – whether Evidence Act 1995 (NSW), s 13 complied with – whether witness competent to give unsworn evidence if not given required direction
CRIMINAL LAW – Sexual offences – Jury question – Whether judge failing to respond adequately to jury question that, if jury believed complainant’s evidence to be plausible, that was beyond reasonable doubt – R v Cavkic, Athanasi and Clarke [No 2]  VSCA 43, referred to.
CRIMINAL LAW – Evidence – Whether judge’s failure to comply strictly with s 23(1D) of Evidence Act 1958 vitiated conviction – R v BIC  VSCA 155, considered; R v Brooks (1998) 44 NSWLR 121, distinguished, Evidence Act 1958, s 23(1D).
CRIMINAL LAW – Application for permanent stay of proceedings – two counts of attempt to carnally know a girl under 10 years of age – four counts of act of indecency on a girl under 16 years of age – two incidents between 1975 and 1977 – extreme delay – absence of timely complaint – lack of specificity as to time alleged offences occurred – fair trial not possible – application for stay granted
EVIDENCE LAW – complainant four and five years old at time of incidents – no corroborating evidence – unsworn evidence of child – complainant no longer a child – corroborating evidence not required – substantial delay – loss of relevant evidence – need for Longman warning
Evidence Act 1995 (Cth), s 13
TORT – NEGLIGENCE – personal injury – psychiatric/psychological harm – plaintiff bullied at primary school – reports of bullying to school authorities by plaintiff’s mother – severe anxiety symptoms – reliability of mother’s evidence – some discrepancies – no significance – duty of care – expert evidence – identification of psychiatric disability – causation – relevance of mother’s own psychiatric condition
DAMAGES – non-economic loss – economic loss – superannuation – discount for vicissitudes
EVIDENCE – hearsay – exceptions to hearsay rule – whether person who made representation is competent to give evidence of asserted fact – no recollection of asserted fact
Evidence Act 1995 ss 59, 63
CRIMINAL LAW AND PROCEDURE
WITNESS AGED 8
ASSUMPTION THAT SHE COULD GIVE “EVIDENCE” WITHOUT BEING SWORN
ABSENCE OF RELEVANT ENQUIRIES AS TO HER UNDERSTANDING
STATUTORY AND COMMON LAW REQUIREMENTS UNFULFILLED
CRIMINAL LAW – Evidence Act 1995 (NSW) s 13 – Evidence (Children) Act 1997 (NSW) s 9 – record of an interview – sound recording – admissibility – competent to give evidence at the trial – competence at the time a person is called to give evidence – presumed to be competent – neither the defence nor prosecution carries an onus of proving lack of competence – whether the Court is satisfied – the Court may inform itself as it thinks fit– balance of probabilities
Criminal law – Confiscation of criminal proceeds – Recovery – Hardship – Assessment of assets subject to confiscation order – Interpretation of statute – Criminal Assets Recovery Act 1990 ss24, 25, 26 – Meaning of “will” – Assets forfeiture order – Accused acquitted at trial – Felony-Tort Rule – Quantum of order – Method of calculation – Error in calculation.
CRIMINAL LAW AND PROCEDURE
Sexual offences against six year old child
Investigation by judge whether child incapable of understanding obligation to give truthful evidence
Difference between that concept and knowledge of what is a lie and truth
Statutory test fulfilled
No error by judge
CRIMINAL LAW – trial by judge alone – offence of sexual intercourse with a person under the age of 10 years – no evidence in support of offence – accused found not guilty.
CRIMINAL LAW – trial by judge alone – two charges of committing an act of indecency upon a person under the age of 10 years – one charge of attempting to commit an act of indecency upon a person under the age of 10 years – charges not proved beyond reasonable doubt – accused found not guilty.
CRIMINAL LAW – trial by judge alone – evidence given by a child in a Supreme Court trial – evidence to be given by way of audiovisual link – Evidence (Miscellaneous Provisions) Act 1991 (ACT).
CRIMINAL LAW – trial by judge alone – offences of committing an act of indecency upon a person under the age of 10 years – unsworn evidence by child – warning as to reliability of evidence of complainant – s 165 Evidence Act 1995 (Cth) – s 70 Evidence (Miscellaneous Provisions) Act 1991 (ACT).
EVIDENCE – complainants aged 8 years and 10 years – whether complainants competent to give sworn evidence – no understanding of “obligation” – complainants not competent to give sworn evidence but competent to give unsworn evidence – s 13 Evidence Act 1995 (Cth).
Evidence Act 1995 (Cth), ss 13, 165, 164,
CRIMINAL LAW – assault – circumstantial case
EVIDENCE – when appropriate to allow child to give sworn or affirmed evidence – transcript of child’s emergency 000 call admissible as part of res gestae
EVIDENCE – discretion to allow prosecution to cross-examine unfavourable witness
Evidence Act 1995 (Cth), ss 12, 13, 38, 60, 66, 102, 132, 135, 144
s 5F(2) Criminal Appeal Act 1912
whether decision that complainant not competent to give unsworn evidence an interlocutory judgment or order
criteria under s 13(2) Evidence Act 1995
limits of inquiry under s 13
age-appropriate language for child complainant
CRIMINAL LAW – trial by judge – murder – intentionally wound – self defence – whether accused believed that his actions were necessary in order to defend himself and that he had reasonable grounds to hold that belief.
EVIDENCE – hostile witness – prior inconsistent statement – Evidence Act 1995, ss 38, 60.
EVIDENCE – availability of witness – whether all reasonable steps had been taken to secure attendance of a witness – Evidence Act 1995 , s 65.
EVIDENCE – availability of witness – whether witness not competent to give evidence about fact – Evidence Act 1995 , s 65
Evidence Act 1995 (Cth), ss 13, 65, 67, 135-147, 192, cl 4 Part 2 of the Dictionary
CRIMINAL LAW – trial by judge alone – offence of incest in respect to a person under the age of 10 years -evidence insufficient to establish sexual intercourse.
CRIMINAL LAW – trial by judge alone – offence of act of indecency – charge not proved beyond reasonable doubt.
CRIMINAL LAW – trial by judge alone – offence of act of indecency upon a person under the age of 10 years – unsworn evidence by child – warning as to reliability of evidence of complainant – s 165 Evidence Act 1995 (Cth) – s 70 Evidence (Miscellaneous Provisions) Act 1991 (ACT) – absence of need of corroboration for either unsworn evidence or evidence of children – consideration of response by accused to allegation – previous good character – offence not proved beyond reasonable doubt.